‘Small Cadre’ Had Big Impact on Fifth Circuit Bump Stock Ruling

Slidefire Solutions Bump Fire Stock on an Anderson Rifles AR15 Lower
When one path is closed off, try another. And don’t stop.

U.S.A. – -(Ammoland.com)- “There is still hope,” attorney Stephen Stamboulieh advised the “small cadre” while sharing the judgment of the Fifth Circuit Court of Appeals in Cargill v. Garland, a case challenging the Bureau of Alcohol, Tobacco, Firearms and Explosive’s “bump stock” ban. The court found that such stocks are not machine guns and that the ban violated the Administrative Procedures Act. They remanded it to the district court.

This judgment differs from the Tenth Circuit’s ruling in Aposhian v. Barr, where that appeals court sided with ATF. Now that there’s a circuit split, the likelihood that the Supreme Court will resolve this is greatly increased. With a circuit split, the treatment of litigants will be different between jurisdictions.

What there’s “hope” for is our case since it consolidated with the Guedes case and ruled against in the United States District Court for the District of Columbia. The Supreme Court then declined to review the case, leaving it dead in the water unless something happened in another case — like the Fifth Circuit’s split from the Tenth.

The “small cadre” I referred to in the lede is a group of colleagues who have joined together in other legal actions designed to advance the right to keep and bear arms, particularly involving Freedom of Information Act requests and complaints if the recipient agencies are not responsive. It’s so designated because United States Attorneys filing an Opposition Motion for Attorneys Fees and Costs snottily attempted to trivialize, disparage and dismiss our efforts and smear our motives:

“In short, there is a tangled web of connections between a small cadre of firearms activists and their efforts to recover fees through largely unsuccessful FOIA litigation.”

Yeah, that’s why we do it. Nothing says “Get rich quick,” like attempting to recover costs that shouldn’t have had to be borne in the first place if the government was doing its job of “securing the Blessings of Liberty to ourselves and our posterity.” Founding intent and consent of the governed demand these arrogant … functionaries… should be defending our rights, not infringing on them and belittling those attempting a course correction – instead of circling the wagons and stonewalling to protect the powerful interests they’ve sold their loyalties to.

So what does the “small cadre” have to do with Cargill? The Fifth Circuit judges who ruled favorably were influenced by arguments formulated and advanced by two of its principals, firearms designer Len Savage and attorney Stamboulieh. They, along with many other legal observers, pointed out the inapplicability of Chevron deference (“the doctrine of judicial deference given to administrative actions”) and the applicability of the rule of lenity (“a principle used in criminal law, also called the rule of strict construction, stating that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant, or to construe the statute against the state”), and that ATF does not have authority to make laws.

They also offered two unique specifics the court picked up on.

From page 3 of Savage’s “Analysis and commentary regarding DOCKET NUMBER: ATF 2017R-22 & BUMP-STOCK-TYPE-DEVICES” (link will download file):

“The .22 rim fire cartridge made the real skill in the Akins Accelerator the tuning process involved in adjusting the operating spring that regulated his device. They were tricky to set up to work, (lots of trial and error), but once set up ran like a sewing machine.”

Now consider this section of the court’s opinion from page 51 of the above-linked Cargill judgment:

“Consider an automatic sewing machine. With a machine that sews automatically, you don’t just push a button—you also move the cloth forward with your hand.”

From page 6 of Savage’s analysis:

“THE SCOPE OF THE NPRM IS OVERLY BROAD DUE TO VAGUE LANGUAGE The NPRM has descriptive language that is so vague it could be describing hundreds of thousands of pump shotgun in the US, making each a potential machinegun. As there are several models of shotguns that operate precisely as stated on page (1) of the NPRM “firing without additional physical manipulation of the trigger by the shooter” (There were approximately 500,000 Model 37 pump shotguns made by Ithaca alone).”

From page 24 of the Court’s judgment:

“For example, the ATF’s treatment of the Ithaca Model 37 ‘slam fire’ shotgun confirms that bump stocks do not enable automatic fire. With the Model 37, a shooter can pull the trigger once and hold it. Then, after each pump with the shooter’s nontrigger hand, a new shell is loaded and immediately discharged. According to the ATF, the Model 37 fires multiple shots by a single function of the trigger, but it does not do so automatically because the shooter must manually pump the shotgun with his non-trigger hand.”

What this helps show is that submitting comments can make a difference because some judges will pay attention to them. It’s easy to conclude otherwise when agencies like ATF approach things with preordained conclusions that aren’t going to be swayed by anything the citizenry says, even if it’s clear the people are right, and the bureaucrats are dead wrong. But checks and balances aren’t yet completely irrelevant. The remarkable system established by the Founders hasn’t yet been completely eviscerated by the enemies of liberty.

It also shows that successful efforts are the result of many knowledgeable defenders adding their pieces to the whole and that just because one or more attempts hit a brick wall as our complaint did in the DC Circuit Court, it doesn’t mean continued pushing by parties that refuse to give up can’t bear fruit.

What remains to be seen is what the Supreme Court does with Cargill, especially noting that all they must do to let things stand is nothing. It’s difficult to see how they could allow such a split to remain, but we’ll just need to wait and find out.

And then regardless, to resolve not to give up, and to work as individuals, as members of our own “small cadres,” and as parts of the greater alliance of gun owners  committed, as Patrick Henry urged at the Virginia Ratifying Convention, to “Guard with jealous attention the public liberty.”


About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

David Codrea

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Deplorable Bill

Great, next we have the atfe trying to make 40 million righteous, law abiding, constitutionally directed and protected people into instant felons —- all because of a pistol brace. There is nothing in the 2nd amendment that limits the free American citizen from any type of weapon, in fact, the 2nd amendment actually limits the government in such matters see; SHALL NOT BE INFRINGED”. Not that the atfe has ever been constitutional but they are playing with fire. What IF 40 million people said no, we will not comply? What if the rest of us, along with them said enough,… Read more »

2brknot2bfree

It’s not a matter of if, but when? When are law abiding gun owners simply going to resist, and fend off, tyranny?

Deplorable Bill

The day will come when “they” knock on the door of someone who will enforce the laws against tyranny, treason, assault, murder, theft, lying on government paperwork and in court, threats, intimidation etc. etc. etc. If they pick me, then so be it. When this happens that person should get on social media, the phone, the news, the c.b. radio and announce it. Everyone who lives in the same zip code should arrive on site. If you see a hostile act…… I don’t know how many people would answer the call but, another attack such as on Waco or Ruby… Read more »

CourageousLion

WHY WE NEED THE MILITAS goes right along with what you just stated. https://courageouslion380.substack.com/p/why-the-militia

USMC0351Grunt

Florida Congressman Gaetz is doing ecactly what needs to be done so THERE is the office to flood with our support and any other Representative that joins onto his Bill!

https://www.foxnews.com/politics/gaetz-introduces-abolish-atf-act-ruling-against-stabilizing-braces

Deplorable Bill

We should ALL absolutely back him and anyone else who would get rid of the atfe and any other non constitutional law or entity.

Arm up and carry on

Arny

How many dead will it take ? Look what happened in NC ? If that was a black guy BLM would be burning cities. But here we sit doing what ?And do you think the ones in charge don’t see it ?

Deplorable Bill

Arny, I just don’t know, one is too many, but in all conflicts, should it come to that, there will be many. Maybe it will start with me but either way, 40 MILLION ticked off, freedom and rights loving, pro constitution American citizens will have to be listened to. Either the constitution reigns or it doesn’t. If it does then America as founded will live if not….. Yes, I do think that those people who are in charge do know what’s going on but most are petrified for fear of the new world order.

Arm up and carry on

DDS

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” — Thomas Jefferson”

DIYinSTL

I don’t recall where I first saw it but “Our forefathers would be shooting by now” has been emblazoned on T-shirts, including ones I have had printed to wear when voting, at the range, and assemblies like NRAAM. It’s not a hill I would want to die on however there is a profound difference between “would want to” and “would.”

USMC0351Grunt

There’s no cowardice in wanting to stick around for as many skirmishes as you can possibly attend. I would much rather prefer it that way as well. “And I’m an excellent shot.”

HLB

every firearm owner should call his congressman”

Well, we could just go see them in Washington DC.

HLB

Roland T. Gunner

As an aside, it has been several years since I got anything in response from my senators or congressman besides a form letter, or got anyone to answer their telephone when I have called sbout BUTFK overreach or gun rights.

USMC0351Grunt

Yet and truly, how many of us have ever contacted our representatives offices and complained about the dismal gatekeepers that are avoiding our issues and not making our voices heard by our representative’s ears? Perhaps we may want to think about dropping the, “humbly requesting” blather and punch it up a bit like: “Honorable Representative (NAME), On such and such a date, at this particular time you will are invited to visit with 5,000 of your armed constituents at your (Name An Address, Town) office building to hear our demands that have failed to reach your ears due to a… Read more »

Last edited 4 days ago by USMC0351Grunt
Deg4u

I heard on Fox news the other night that one of McCarthy’s group (one guy that wasn’t for him) say, its time for ATFE to be put out of office. I hope they will get it done.

Last edited 4 days ago by Deg4u
Arny

Looking for donations are they ? lol

Ansel Hazen

Yup.

I_Am_The_3_Percent.png
Deplorable Bill

Scouts out!

Arm up and carry on

2brknot2bfree

Why does no lawyer ever challenge a law based solely on the meaning of the word “infringed,” as in “shall not be infringed”?

HLB

It might be that everybody would go home after such simplicity of logic. Then what would they do?

HLB

Joe R.

Plot twist – “Small Cadre” is the name of a new pistol brace.

USMC0351Grunt

Or, Cadre in Small, Medium and Large?

CourageousLion

“A regrettably large share of our legal experiences operate not in the shadow of the Constitution and its constraints, but rather in the shadow of explicitly unconstitutional rules, actions, and orders. In the time it takes for improper Executive Orders to be reined in, for illicit administrative decisions to be corrected, and for misinterpretations of constitutional power to be overturned, so much of society’s activity is framed by what we might call the not-Constitution — all those acts of government that are deemed illegal only after they have caused enduring harm. A most troubling aspect of government power is its… Read more »

hippybiker

One Thomas Jefferson once opined in an official document something profound. “ He has created a multitude of New Offices, and sent out hither swarms of Officers to harass our people, and eat out our existence.”
Times may change, as well as technology but human nature remains the same as well as tyranny and corruption!

Last edited 4 days ago by hippybiker
Watch um

One only has to look in a museum of antique firearms in the period before the Revelationuary War to see pistols with stocks or as the ATF calls short barrel rifles that were in common use and unrestricted. In that decision in New York State Rifle & Pistol Association Inc. v. Bruen, the justices struck down New York’s law about who can carry a concealed weapon. In doing so, they for the first time expanded the right to possess a gun outside of the home and laid out a legal test of sorts for gun regulations that looks to the… Read more »

USMC0351Grunt

You almost had that right… “In doing so, they for the first time expanded the right to possess a gun outside of the home and laid out a legal test of sorts for gun regulations that looks to the history and tradition of the Second Amendment” That right has ALWAYS been there, it was just clarified by SCOTUS, AGAIN in this matter and it will be again and again until we work our way back to a Supreme Court ruling that will abolish the acts of congress pushing bills with the hidden pork as well as the UN-constitutional laws, and… Read more »

Roland T. Gunner

It’s good to read more of your writing Mr. Codrea; it’s been a while, and I’ve missed it.

musicman44mag

Let’s pray the Republican Matt Gaetz is successful in shutting down the ATF. That could change this story line and results of many infringements that obidens regime is putting in place by changing rules.

Joe R.

I’d [almost] settle for just curing the ATF&E’s schizophrenia regarding classifications of firearms.

3%er

Not enough! The ATF is just a criminal enterprise. Gaetz is showing a spine and a backbone. ATF has to be put out of business once and for all. Rescind NFA too.

Last edited 5 days ago by 3%er
Wild Bill

The BATFE has a long history of manufacturing evidence in criminal trials. For that alone it should be eliminated. It would only take a memo and they would be gone.

Ope

Bill, how’s it been going? I wonder if Gaetz even knows about the memo part of this thing? I might email his office about that.

Wild Bill

We have been busy shoeing horses, again.

The memo would have to come from a cabinet level member of the executive branch, so a repealing memo would be beyond his authority. Gaetz is using the power inherent to his office, and getting rid of the BATFE could be done legislatively … in theory.

At least someone has eliminating BATFE on their mind.

musicman44mag

Shoeing horses. Not an easy task. I miss the old days when we had horses. Better than any 4×4 and even walking while hunting because they game doesn’t think it is any threat.

Good luck.

USMC0351Grunt

But isn’t it the, “power that establishes also has to be the power that does away with”?

Wild Bill

The House of Reps could refuse to appropriate funds for the agency. The Congress could pass a bill that the President would have to sign. The Sec of Homeland Security could type up a memo rescinding the Sec. Treas. creation memo (the BATFE used to be under the Treasury Dept and was transferred to Homeland Security when Tom Ridge needed a job and G. W. Bush came to his rescue.) The POTUS could write up a rescinding memo. Lots of ways to get rid of BATFE because they were not created by an act of Congress.

musicman44mag

I would like to agree with you but ATF has already proven to be in the pocket of the left and that they are not only anti gunners but a political ideal enforcement agency now. Something different could be made better. I will take the left’s position on this one just like the shot. My body my choice and sometimes you have to tear it down to rebuild it and make it better. Your right, classifications need to be changed and or eliminated. The shotgun has rifling’s in the barrel so it is a rifle? Eliminating SBR, Shooting brace, Sound… Read more »

2brknot2bfree

Not sure how you expect to make tyranny better? Was this an attempt at humor, or satire, or both?

musicman44mag

I was dead serious. We need to start over and do our best to make sure we have proven people in there that are honest and supportive of the 2nd amendment even though they will not be allowed to change rules making new laws and criminals of innocent people regardless of what the president wants or says. Three things that would be a good start to fixing our problems is board of people that vote on what laws will be passed that are spread across America that never go to Washington, what can be entered as trailers into bills if… Read more »

gregs

at least with tyranny you know what you are getting with tyranny instead of having a Constitution and Bill of Rights and then having congress/a bunch of oligarchs and unelected bureaucrats take a big dump on our constitutional rights.

Roland T. Gunner

Why did they refuse to ship to an FFL in another state? Thats how our current system works.

musicman44mag

I am not sure if was the store or state policy but none the less I was and still am able to legally have a weapon.

Deg4u

It’s on count of your governing’s doing.

musicman44mag

Ok, I think you are right. But when they run the FBI background check. Do you think it covers all of the USA or just the state you live in? If it covers all of the USA, I shouldn’t have to deal with not having a license in their state and especially now since it is all kept on a database when you fill out the form electronically. We already have proof that the DOJ has like 350 million records or some ungodly number like that which was reported on Ammoland? Why all the hassle other than to restrict our… Read more »

musicman44mag

Whoever keeps down voting me over anything I say shows that you are ignorant. I say things that are true and support gun ownership but we may not always agree. I see you can’t handle that. You are like the left, if you don’t agree with everything we think, our way, then you must be destroyed, discounted and reprimanded. Too bad the best you can muster up is just a down vote. I do understand that it takes brains to make a comment and that might sometimes be beyond your ability. The one thing about the up or down vote… Read more »

HLB

If you have a thought, you should put it in writing here. That is what the “Reply” button is for. The down vote is like swatting some one instead of walking up to them and speaking your problem. Speaking of other problems here, it is discouraging to click on a story to read it and find that everything is sorted by up-votes. There is a natural tendency for the earlier postings to get more up-votes than later postings. It is a pain to keep having to resort the entries to find out who has posted. Now, I am happy that… Read more »

musicman44mag
Last edited 3 days ago by musicman44mag
USMC0351Grunt

That’s why in the older days they just hung, shot, fried the bad guys, problem solved. No need for fancy words like recidivism. Just ANOTHER social ill created by the left wing-nuts for society’s “village” to have to deal with. As far as the 2nd Amendment, in common usage terms, we COULD buy and / or build a gun, weapon, cannon in ANY state we travetel to / through. Remember the days that all we had to do was flip through the Monkey Wards or Sears & Roebuck pick oujt a gun, send in a check or money order and… Read more »

Last edited 4 days ago by USMC0351Grunt
musicman44mag

I don’t know what a VRF-14 is? I spend most my time looking up the acronyms that people use. I hate text and don’t use it but now I am seeing what used to be text in emails and articles. The 14 makes me think of an M-14. Makes me feel all warm and fuzzy inside.

Roland T. Gunner

NOT ENOUGH! Their cure is the Bitter Pill.

Bigfootbob

Matt Gaetz is one of the 20 warriors that stood for principles and helped affect change. It’s up to us to send him and the other 19 reinforcements.

This is very doable and I for one am very pleased Congressman Gaetz has put the ATF on notice. Please support his efforts. It’s going to get ugly as the opposition already HATES him because he is truthful and effective.

musicman44mag

There is no question that he has my support. Him, Ted Cruze, Rand Paul. Allot of people don’t like Rand but I remember all the things he was saying about the government and letting them have such a large data base that stored information on us without restraints to find terrorists when 9/11 happened. He said eventually it would be used to track us and be used against us. Well, here we are, and he was right.
Oregoneistan

USMC0351Grunt

He’s (Gaetz) got my full cooperation.

Tionico

Perhaps a serious legal action toclip BATF dirctor’s wings charging him with perjury for failing to uphold the oath f office he swore. “faithfully execute the Constitution and the laws not policies, suggestions preferences, opinions) of the United States. Yeah I know, the big brick wall would be finding a judge of competent jurisdiction that would honestly adjudicate the case. The jurisdiction would alost certainly be within the distroct of Corruption. Sigh.. yes our forefarthers surely would have been shooting by now. If nothing else Waco would have triggered it. Say, wasn’t that the “work product” of BATF? Janet Reno?… Read more »

musicman44mag

How about the shooting of the cattle rancher from AZ, Finicum in Oregoneistan. If they only would have stopped rather than trying to get away, he might not have been killed. Don’t forget to add that one to your list.

It’s a shame when the current liar and thief says in essence, that I lied, I am a politician, what did you expect and it is supposed accepted, that Huston, we have a problem.

Oregoneistan

HLB

If you mean Robert LaVoy Finicum, the patriot who was murdered, he did stop, but continued on since they had no probable cause to detain him. I saw all the videos.

HLB

musicman44mag

Right on, I am glad you know the story. Thanks for sharing.

USMC0351Grunt

Finnicum was in a carload of patriots headed north to another county at the assurance of a County Sheriff that if they were to come up to his county they would all be treated fairly. They were ambushed by State Troopers, FBI and Finnicum was murdered.

https://www.bing.com/search?FORM=AFSCVH&PC=AFSC&q=finnicum+murder+video

musicman44mag

That is the story that I have heard over and over again in articles and some people talking. One person said that they watched all the video and confirms what you say. I read an article by the Oregonian a very leftist newspaper and they say the FBI fired a sponge bullet and hit the driver in the hand first. I also read that the person that killed Finicum was promoted. I don’t have all the facts and never saw all the information. The oregoneistan news limits you to what the left only wants you to hear and see or… Read more »

USMC0351Grunt

If Patrick Henry, George Washington, Jefferson, Madison and the rest of the gang were here with us today, their responses at the very minimum would be,

“SWEET!”

Ope

USMC, I wonder if that word would had been common vernacular with our founders back in the day? It would be hilarious to see Washington stand up and say “SWEET” loudly and with emphasis.

USMC0351Grunt

Just trying to tie-together two eras of great patriots.

Ope

USMC, absolutely,I knew what you meant.

Watch um

Question, how do you attach a picture to your comments? What format should I use

TStheDeplorable

I do not think it will help the right to keep and bear arms for the Supreme Court to take up the bumpstock issue, because the only reason they would choose to make a bumpstock case one of the 2% of cases they agree to hear would be to use these gimmicky range toys to restrict gun rights, rather than expand them. The fact is that the Supreme Court and its clerks do not understand firearms, and likely fear them, and they are looking for a justification to create a precedent that “shall not be infringed” allows broad bans on… Read more »

Ope

TS, “these gimmick range toys” ? Showing any bias there? I didn’t realize the 2A needed any help from anyone, the SC included. A constitutional right is absolute!

Wild Bill

Original comment on hold. The history and manner in which BATFE came to its current “rule’ about bump stocks makes “Cargill” a perfect vehicle for disciplining BATFE and putting all of the agencies in their places. That would not only be a good thing for the Second Amendment, and the Administrative Act, but also the Congress, and for us, as well. IMHO.

USMC0351Grunt

And by this, Wild Bill is talking about PUTTING ALL Departments, Agencies, Bureaucrats, etc BACK IN LINE the way the Constitution was designed for ALL amendments rights, rules and remedies.

Wild Bill

That is exactly what I am saying!

Wild Bill

The history and manner in which BATFE came to its current “rule’ about bump stocks makes “Cargill” a perfect vehicle for bitch slapping BATFE and putting all of the agencies in their places. That would not only be a good thing for the Second Amendment, and the Administrative Act, but also the Congress, and for us, as well. IMHO.

HLB

Heller was not wanted either. I did fear that Heller would come to no good, but it was a change in the 2nd Amendment current. If your fear is not correct, a bumpstock ruling may give us machine guns again. If you are correct, we still have the 2nd Amendment for our own use – if we have the guts to use it.

HLB

DDS

While “Heller” was an important case, and an obvious sign that the tide may have turned in our favor, I believe the “slack water” moment may have been Emerson. I understand that’s a judgement call and don’t expect the rest of you to agree with me in any fashion. Regardless, we should all be more aware of a factor that helped push the district courts, and SCOTUS, into a mode where they began taking the historical roots of The Second Amendment more seriously. And that factor was the publication of a book. https://www.amazon.com/Origin-Second-Amendment-Documentary-Commentaries/dp/0962366455 Essentially, the book’s editor, David E Young,… Read more »

Wild Bill

As soon as I read your missive, I knew that “Origins” was a book that I wanted to read. I checked the usual used book sites and finally found a copy for sale for $31 (including shipping). Thanks for the heads up!

USMC0351Grunt

Tell ya what, you just turn in ALL your firearms and any “gimmicks” that you might hve and wait until the adults finish their discussions. We’ll let you know when it is once again to come out of hiding and start enjoying your freedom and liberty.

Last edited 4 days ago by USMC0351Grunt
DDS

First they came for anything full auto, and I did not speak out because I didn’t own anything full auto.

Then they came for the small cheap handguns, and I did not speak out because i didn’t own any small cheap handguns.

Then they came for the assault weapons, and I did not speak out……

With apologies to Martin Niemoller

https://encyclopedia.ushmm.org/content/en/article/martin-niemoeller-first-they-came-for-the-socialists

Considerthis

Whether bumpstocks are any value or not is not the issue. It is the method by which this infringement took place, and if this government agency can impose unconstitutional laws as they wish. If allowed to stand it is a sure thing that many infringements will follow. until you and I and all American citizens have no Second Amendment Rights whatsoever.

Finnky

Whether bumpstocks are of any value is a question each individual consumer must make for themselves. For me it is not valuable – but the right to choose is invaluable.

Ope

Finnky, you’re right, I tried out bumpstocks on two occasions and just didn’t like anything about it. But millions of people do and did. That choice shouldn’t be denied to anyone.