U.S.A. –-(AmmoLand.com)-– On October 3, 2022, the Supreme Court denied a writ of certiorari to two promising bump stock cases, one in the Tenth Circuit, another in the Sixth Circuit. The appeals process for those two cases is finished.
Another bump stock case Cargill v. Garland, is in the Fifth Circuit and may tip the balance. It’s being considered en banc and is a well-argued and supported case.
The case was filed on March 25, 2019, originally titled Cargill v. Barr.
In all three cases, the arguments are not about the Second Amendment. They are about the ability of bureaucrats to make law and the separation of powers between the legislative and executive branches of government.
In Cargill v. Garland, supported by the New Civil Liberties Alliance, the district court decided in favor of the government on November 23, 2020. The case was appealed to the Fifth Circuit, and a three-judge panel upheld the district court.
A three-judge panel issued an opinion on the case in the Fifth Circuit on December 14, 2022.
The three judge panel refused to consider either the separation of powers issues, or the Chevron doctrine, claiming they were irrelevant because the panel ruled bump stocks were machine guns.
The Fifth Circuit was asked to consider the case en banc, which is to say, before the entire court, by a member of the Court. A majority of the members of the Fifth Circuit agreed to hear the case, en banc.
The trend of the case follows the GOA case in the Sixth Circuit. The Sixth Circuit agreed to hear the bump stock case en banc. The Sixth Circuit split evenly, with eight members voting to rule the bump stock regulation invalid and eight-member voting to rule for the government. In the case of a tie vote, the district court ruling was upheld. The GOA case was denied a writ of certiorari on October 3 of, 2022.
The Cargill v. Garland oral arguments were heard by the Fifth Circuit, en banc, on September 13, 2022.
There is a good chance the Fifth Circuit will reverse the opinion of the district court. A majority of the Court agreed to hear the case, starting fresh, en banc. If the Fifth Circuit reverses the opinion and finds for Cargill, the case will create a split in the Circuits between the Tenth, the Sixth, and the Fifth circuits.
This gives the Supreme Court a strong incentive to hear the case.
There is an Owellian quality to the circumstances. For over a decade, the ATF assured Americans that “bump stocks” were *not* machineguns.
About half a million Americans purchased the devices on the assurance they were legal.
To reverse the longstanding interpretation of the law based on presidential preference smacks of the Orwellian imagery. In George Orwell’s novel, 1984, history and legal reality were reversed at the whim of the ruling elite. “Oceania has always been at war with Eastasia“, even though they were allies yesterday.
With the bump stock regulation, we are told:
bump stocks were always machine guns before the law, even though we were told they were not machine guns for over a decade.
How can a citizen make informed decisions if the whim of the executive branch can change the law?
There is the issue of timing. The Supreme Court has made momentous decisions this term, attempting to restore the rule of law to the nation, away from the insanity of the Progressive notion of the Constitution as a “living document”, which can be altered at any time by the judicial branch.
Concurrent is the notion the executive branch can change the law at the whim of unelected bureaucrats.
The justices may not want to tie such a significant change as restoring the separation of powers, as demanded by the Constitution, to a controversial issue such as guns.
Separation of powers cases are percolating through the courts. One of those may be settled at the Supreme Court before the Cargill case. Hat tip to (Mark W. Smith at the Four Boxes Diner.)
The mass of unconstitutional law in the United States is enormous. The Supreme Court justices are not fools. Declaring half of the federal law unconstitutional all at once, might provoke the left into open revolution.
It is better to proceed incrementally, as the infringements were put into place.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.