Firearms Policy Coalition Files Lawsuit Against Acting AG Whitaker Over Bump Stock Ban

fpc firearms policy coalition bump stock ban suit

courtesy firearmspolicy.org

When President Trump ordered the ATF to reverse its ruling on bump fire stocks and magically designate them as machine guns (yes, that would be funny if it weren’t so arbitrary, ludicrous and dangerous), he had to know that the Department of Justice would be sued as a result. The Firearms Policy Coalition along with three other plaintiffs did exactly that literally within hours.

Now the FPC has filed a new lawsuit directed at the authority of acting Attorney General Matthew Whitaker. They’re arguing that by issuing the rule change under Whitaker’s signature, Trump violated the Constitution’s appointment clause. Here’s their press release:

WASHINGTON, D.C. (December 26, 2018) — Firearms Policy Coalition (FPC) announced today that attorneys Thomas C. Goldstein and Daniel Woofter of Goldstein & Russell, P.C., have filed a new federal lawsuit challenging the Trump Administration’s “bump-stock” ban, and Acting Attorney General Matthew Whitaker directly. A copy of the court filings can be viewed at www.whitakercase.com. Goldstein, widely known as one of the nation’s foremost appellate and Supreme Court practitioners, is lead counsel in the matter.

FPC, which owns a “bump-stock” device, seeks a preliminary injunction, a permanent injunction, and declaratory relief preventing Matthew G. Whitaker from exercising any authority as Acting Attorney General, and preventing from going into effect the ATF’s Final Rule on “Bump-Stock-Type Devices” (Docket No. ATF-2017R-22).

The case and motion argue that Acting Attorney General Mathew Whitaker, who President Trump placed into the role after the resignation of then-Attorney General Jeff Sessions, has no authority to issue the rule because the President failed to adhere to the Constitution’s Appointments Clause and federal laws regarding succession and vacancies in the office.

“Mr. Whitaker’s designation as Acting Attorney General violates both the Constitution’s Appointments Clause . . . and the applicable statutes,” the motion argues. “Thus, he was not authorized to sign the Rule, and the Rule cannot go into effect without violating the Administrative Procedure Act (APA) and irreparably harming Plaintiff and its members.”

“Whatever President Trump’s policy preferences, we believe that the Constitution and federal statutes require that the bump-stock rule be enjoined,” said FPC President Brandon Combs. “The American people deserve a government that respects their rights, property, and the rule of law.”

Mr. Goldstein is one of the nation’s most experienced Supreme Court practitioners, having served as counsel to a party in well over 100 merits cases at the Court, and personally arguing 42. Only 3 lawyers in the Court’s modern history have argued more cases in private practice. He has been counsel on more successful petitions for certiorari over the past decade than any other lawyer in private practice. Over the past fifteen years, Goldstein & Russell, P.C.’s petitions for certiorari have been granted at a higher rate than any private law firm or legal clinic.

In addition to practicing law, Tom has taught Supreme Court Litigation at Harvard Law School since 2004, and previously taught the same subject at Stanford Law School for nearly a decade. Tom is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms. FPC advocates on a wide variety of important constitutional, legal, policy, and social issues, including free speech, due process, separation of powers, limitations on government action, and others. FPC works to advance individual liberty through programs including strategic litigation, legal efforts, direct and grassroots advocacy, research, education, and outreach.

Here’s the FPC’s outline of the lawsuit:

Summary: FPC v. Whitaker is a federal constitutional, statutory, and APA challenge to the DOJ/ATF ban on “bump-stock” devices brought President Trump’s ban on “bump stock” devices by executive fiat

Arguments:

  • The President’s Designation of Matthew Whitaker Violated the Constitution’s Appointments Clause
    • The President unconstitutionally assigned the Attorney General’s responsibilities to a non-officer
    • The President’s designation of Mr. Whitaker violated the Appointments Clause because he is serving as a principal officer
    • The Government’s arguments defending Mr. Whitaker’s service under the Appointments Clause are non-responsive
  • Applying the canon of constitutional avoidance, the Vacancies Act is fairly read not to give the President the power to appoint a non-confirmed official in these circumstances
    • The AG Act automatically designates the Deputy Attorney General as the Acting Attorney General
    • The Government’s contrary arguments are unpersuasive

Plaintiffs: Firearms Policy Coalition

Defendants: Bureau of Alcohol, Tobacco, Firearms and Explosives, Acting Attorney General Matthew Whitaker, ATF Acting Director Thomas Brandon, United States of America

Litigation Counsel: Thomas C. Goldstein; Daniel Woofter – Goldstein & Russell, P.C.

  • Tom Goldstein is an appellate advocate, best known as one of the nation’s most experienced Supreme Court practitioners. In addition to practicing law, Tom has taught Supreme Court Litigation at Harvard Law School since 2004, and previously taught the same subject at Stanford Law School for nearly a decade.  Tom is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.

  • Daniel Woofter joined Goldstein & Russell after completing clerkships for the Honorable Pamela A. Harris of the United States Court of Appeals for the Fourth Circuit and the Honorable Judith E. Levy for the United States District Court for the Eastern District of Michigan. Before his clerkships, Daniel was an associate at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, where he worked on commercial litigation, as well as civil rights and asylum cases. Daniel graduated from Georgetown University Law Center. At Georgetown, he served as an Executive Editor of the Georgetown Journal of Legal Ethics.

comments

  1. avatar frank speak says:

    how could they not see this coming?

    1. avatar Esoteric Inanity says:

      Arrogance and pride. Once the NRA gave the ATF their blessing to re-examine the legality of bump stocks, they believed that nobody of note would go against them. After all, the entirety of America’s gun community blindly follows the NRA’s dogma without a thought. This is why they have 5 million members, and hence why the US still has the 2nd Amendment.

    2. avatar rosignol says:

      I kinda think they did, and there’s a real chance that they won’t be all that unhappy if they lose.

      1. avatar George from Alaska says:

        I agree with Rosignol… they knew exactly what they were doing and the NRA are not traitors against us, in fact if it were not for their suggestion for the ATF to look at their rulings again, over 10 years of accepting bumpstocks, then Feinstein would have reintroduced her ready to go “Assault Weapons Ban” and no doubt even many Republicans caught up in the emotions after the almost unbelievable slaughter would have moved to ban everything, Not Just the Bumpstocks! It’s my belief that Trump is kept informed by his son or son in law… the kid that is very pro 2A, owns NFA items and frequently visits with Silencerco and others.
        In retrospect, this may very well have saved us from overly emotional passage at the Congressional level of bans against many things… Remember, if Trump really wanted the things gone he would have Executive Ordered it so… as he has done on other issues. Instead, he and the NRA have now put the ATF/NFA in the unenviable position of impeaching their own “Past Practice”… a very serious legal issue.
        I’ve read the whole ATF proposal.. they have really stepped on their own meat. Their own words contradict the very nature of the NFA.

    3. avatar Hannibal says:

      They don’t care. Win or lose, it doesn’t matter to them. Those that think this some sort of 3D chess where they’re trying to lose are deluding themselves, but it’s not like they really care about banning them either. It’s just politics.

  2. PENCE without Trump 2020?
    LOL!

    1. avatar TexasLaw says:

      Mad Dog 2020

      1. avatar LarryinTX says:

        Orange man forever!!!

      2. avatar Taylor LeBlanc says:

        You do realize hes a major lib right?

        1. avatar Hannibal says:

          Because you’re goofy-haired fool tells you so? Yeah, must be true.

      3. avatar Guardiano says:

        Yeah let’s elect another globalist warmonger, great idea.

  3. avatar Ed Schrade says:

    Maybe there will be a challenge to the rights of the ATF to invent law out of thin air or opinion instead od the legislature that is supposed to make law.

    1. avatar Nanashi says:

      You miss this article?
      https://www.thetruthaboutguns.com/2018/12/ttag-contributor/breaking-supreme-court-grants-cert-in-case-that-could-end-deference-to-regulatory-agencies-challenge-atf-regulatory-power/

      Better hope Ginsberg dies before it’s decided. Kavanaugh outright told Cruz in his confirmation (and stated it in the celebrated by never quoted Heller ruler) he doesn’t care about the Constitution if he likes the effect a law has had.

      1. avatar Guardiano says:

        What was the actual Kav quote?

        Don’t get me wrong, I’m already leery of him after he voted to deny cert to that Planned Murderhood case. Just don’t remember him saying anything like that.

        1. avatar Nanashi says:

          The Heller statement: “In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller ‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)”

          The Cruz questioning:
          https://www.youtube.com/watch?v=f2hAX1rzd6o
          28:20

        2. avatar Guardiano says:

          Thanks!

          Scalia’s written statement on Heller is one of the reasons I always shake my head when people called him a staunch 2A justice.

  4. avatar Stateisevil says:

    I’m confused. The fatwah is in direct contradiction with the statutes on machine guns written by the Congress. The kourts will ignore the AG’s status but will have to get even more creative to deny that law is being just straight up broken.

  5. avatar Wally1 says:

    This will be interesting to see if real world facts matter and a bump stock does not make an AR15 a machine gun under the new definition of one pull of the trigger. Isn’t amazing that lawyers can rewrite physics?
    America is doomed, I believe that in 2007 America took a radical turn based on demographics, in 2007 was the year that the census reported more people in the US of A now lived in large metro areas than in rural America. This is important because history shows every civilization in which this has occurred has started a rapid decline and ultimate failure. Too many people in cities making decisions not based on facts but rumor and innuendo. These decisions become law and lead to self destruction, as far back as the romans. Just my opinion, your mileage may vary!

    1. avatar Guardiano says:

      It’s not just rural vs urban, if you want to talk demographics. You can’t ignore the fact that the majority of nonwhites are against both the 1st and 2nd amendments.

  6. avatar Anonymous says:

    Trump: Ok look guys. Well put this in Whitaker’s signature so later the FPC can file suit against it. Mkay?

    NRA: Just as discussed earlier.

    FPC: Ok then it’s settled. We’ll pretend to be the bad guys this time around. While we all keep the semi-retarded libs distracted. Put Goldstein on this one would you. You know they’re their definitely a Jew when you’ve got both “gold” and “stein” hahaha.

    Goldstein: Yeah yeah. Knock it off.

    NRA: So we’re playing the 4D chess card on this one?

    FPC: Yep. For the first time.

    Trump: Hey. I heard that!

  7. avatar Esoteric Inanity says:

    Burn the witch!!!

  8. avatar Ralph says:

    “Tom Goldstein . . . is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court”

    I read SCOTUSblog religiously. It’s awesome, and not just for lawyers.

  9. avatar Warlocc says:

    Multiple states have already banned ’em, been sued, and judges upheld it.

    Why would this be different? Any lawyers out there?

    1. avatar Nobody special says:

      When a legislative body writes a law and its passed by two house and then signed by a governor unless directly in violation of the constitution it’s generally considered a law. When a bunch of clowns sit down and write a decree and call it a law with no elected body passing it. It’s not actually a law. ATF doesn’t write the law neither does the attorney general or the potus. That’s why this is bs. More over it goes directly against how the law says a machine gun works. If we let it stand it won’t be long befor everything is banned by the same style of decree.

      1. avatar Manse Jolly says:

        Spot on this.

      2. avatar Warlocc says:

        Attorney General in MA unilaterally banned black rifles just recently. Said “Anything that even resembles one now falls under the law”. And again, judges upheld it.

        I think we’re banking a little too much on the courts putting this one down.

  10. avatar Broke_It says:

    You guys ever bump fire a glock? Gives me the willies, feels like I’m gonna shoot my left hand if there’s any tomfuckery. Always have that dopey smile after doing it tho. The .40 to 9 conversion can easily rip thru the 33rounders.

    1. avatar Weapon Of War says:

      You ain’t a badass until you bumpfire a 686. It’s over rather quickly, but the giggles last for several hours dude.

      1. avatar Broke_It says:

        Isn’t fanning the hammer the wheelie version of bumpfire?

  11. avatar Sora says:

    So what happens when the Dems smell this lawsuit and pass a bill in the house right before 2020 elections to put the Republican controlled senate and Trump in a bind?

    We get a national Bumpstock ban law that includes 9+ mags, trigger mods, binary triggers, two stage triggers, one stage triggers, triggers that don’t require a 5 minute timer lock, etc.?

    1. avatar Nanashi says:

      That one is easy if you’ve paid attention to anything in politics: The Senate doesn’t vote on it. That’s literally all they have to do. Republicans are still the majority in the senate and it can be held in committee indefinitely.

      1. avatar Shwiggie says:

        Yes, much like the Concealed Carry Reciprocity Act of 2017….

  12. avatar Elot says:

    Everyone here needs to put some money where their mouth is and donate to FPC. It could just be $5, but do something.

  13. avatar Anymouse says:

    I don’t like this lawsuit. It may win, but it just means the rule has to wait for an AG that passed Senate hearings. It says nothing about the ability of a regulatory agency to make rules that exceed the scope of written legislation. It’s more interesting regarding recess appointments and acting officers that 2A itself.

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