bump fire stock ban
Dan Z for TTAG
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A notable decision came out of the DC District Court on Sunday. You may wonder what this has to do with guns, but please bear with me.

Judge rules Cuccinelli appointment to top immigration post was unlawful, voiding some asylum orders

[Judge Randolph] Moss said the June 2019 appointment of [Ken] Cuccinelli, a vocal proponent of President Trump’s hardline immigration agenda, violated the Federal Vacancies Reform Act of 1998. The federal judge, an appointee of President Obama, held that Cuccinelli was not eligible to become acting USCIS director last year because the position of principal deputy he initially assumed was not a “first assistant” job, as defined by the 1998 law.

The Federal Vacancies Reform Act is one of those dry, boring laws no one pay much attention to. The vacancies clause of the Constitution grants the President the power to make temporary appointments to some offices without Senate confirmation.

Certain positions, though, were considered important enough to write laws specifying succession should the office be vacated. For those positions, the “first assistant,” automatically steps up and serves temporarily until the President nominates, and the Senate confirms, a permanent replacement.

President Trump bypassed the lawfully designated temporary successor in order to appoint Cuccinelli as acting director of the U.S. Citizenship and Immigration Services. Yesterday the U.S. District Court in Washington, D.C. said no.

Here’s the reason this latest decision, largely impacting the flow of immigrants and refugees, is important to Second Amendment rights. Trump did exactly the same thing in bypassing the lawfully designated “first assistant” to the Attorney General when Jeff Sessions resigned. He appointed Matthew Whitaker, bypassing the Deputy Attorney General at the time.

Whitaker, as acting AG, oversaw the rule-making for the “bump-stock-type devices ban, and signed it on December 18, 2018. It took effect on march 26, 2019.

If, like Cuccinelli, Whitaker wasn’t lawfully appointed to the acting position, then the actions he took in that role have no effect. The administration has tried to dodge that problem by having newly confirmed Attorney General Barr “ratify” the bump stock ban by signing it again.

FPC v. Whitaker/Barr * [the appeal of which the Supreme Court denied earlier today] challenged the validity of Whitaker’s actions, along with the Administrative Procedures Act violations and sheer denial of physical reality. D.C. District Court Judge Dabney L. Friedrich has rejected that challenge, essentially calling Trump’s appointment of an acting AG over the lawfully designated successor close enough for government work.

You can read the plaintiffs’ opening brief in the appeal of that ruling, filed February 26, 2020, here.

Note that two different judges on the same US District Court have have now issued conflicting rulings on FVRA, despite the arguments in both cases being virtually identical, with little changed in the two cases other than the names of those involved.

It’s hard to avoid the conclusion that the letter of the FVRA must be followed if that allows open, unlimited immigration, but it’s OK to be only “close enough” if it permits violating Second Amendment rights.

Then again, I’m cynical.


* Disclosure: My work is cited and I provided information regarding the rule-making process to plaintiffs’ attorneys.

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  1. If the law says “Should,” SCOTUS “Will” rule in favor of POTUS, although they “May” not. Time “Shall” be required to hammer this out.

  2. Unrelated, but want throw it out again.

    To any riflemen out there. Looking for a Springfield Armory tanker in .308 w/BM 59 folding stock. Will pay fair market value. Trac PX # provided upon response.

    To JWT. When can we expect your review of the new Python?

  3. Lets just admit that this country is just about all but gone. Corruption is running rampant throughout the Govt & liberal states. Criminals are set free, the law abiding people are getting locked up for having a piece of plastic. The media is one sided, shutting your voice down if they don’t like what you say.
    Maybe the world does need a major pandemic to wipe out 80% of the population to start over again!

    • Loving all the comments about how this is Obama’s fault.

      Obviously has nothing to do with Trump refusing to submit his appointees to Senate approval even though the GoP is in control. He would rather make his incompetent personal loyalist “acting” officials, and in the case of Cuccinelli is nominating someone because that gives him an extra year with his guy as an acting official to “allow for confirmation” that probably won’t go through because it’s the same guy he wanted to appoint a year ago and was told he didn’t have the votes. Nothing has changed.

      Trump has been very clear, we don’t need a State Department because he’s the best negotiator. We don’t need the generals because he wouldn’t go to war with those losers. We don’t need the intelligence agencies or the CDC because he knows more about world events and public health than any of them do.

      All hail the king. MAGA, KAGA, TEOTWAWKI.

    • “Maybe the world does need a major pandemic to wipe out 80% of the population to start over again!”

      I’ve been saying that for 35 years. Though 80% reduction would only put the global population back a bit over 100 years. A 90% reduction would be more like 300 years ago.

      • “Though 80% reduction would only put the global population back a bit over 100 years. A 90% reduction would be more like 300 years ago.”

        Runs parallel to the enviro whacko movement who consider humans a deadly virus.

        • No, not really, just unsustainable.
          Global population has more doubled in less than 50 years, and that was double of 50 years before that. But it took nearly 100 year to double before that and 150 years prior to that.
          On the current growth curve I would guess about 15 BILLION PEOPLE by 2060.

  4. Liberal moron on the federal bench protecting the failed 0bama legacy at any cost. This is so obvious that even Stevie Wonder can see it.

  5. I don’t see this case going too far unless the Senate has to step in to ratify the appointment and that wasn’t done. Maybe I’m crazy but this seems like a setup to an eventual loss to me.

  6. The sky in falling. You disagree with the courts so it must be wrong. I agree with the support of the second amendment, but for the most part the systems work. Most of you have failed to vote, many of you don’t like the law or cops, guess being a outlaw is cooler. Go to the voting booths, get smart and get political. That is the ONLY way your going to get change. Ask your congresspersons why the ethics laws that applied to the federal civil service do not apply to the congress? How is it that they go into office poor and while they get paid less then $200,000 per year they come out millionaires? This is happening on both parties. Then ask why the tax system is so complex. Why not NO DEDUCTIONS NO EXEMPTIONS and 1 PERCENTAGE tax bracket. Lots of other things we need to get on the books.

  7. It all depends on whose ox is gored. The rich. Criminal or Law abiding, will always have rapid fire weapons. Including the rich man who shot up Las Vegas.

    • Now will the civil rights lawyers use this as away to get bump stocks made legal? Do they really want bump stock legal??? Do they really want low cost rapid fire weapons in the hands or regular people???

  8. Regardless of the final FVRA outcome, it’s a delay at most. Best case, the regulation is thrown out, and Barr signs it again. Worst case, regulation is completely vacated, all cases against it are thrown out as moot, identical regulation is proposed with new comment period, Barr signs it, and cases are refiled with 2-4 year lost before a final decision. Maybe new injunction allow temporary possession by everyone, duplicates current FPC members only, or covers nobody. I guess fantasy best best case would be Barr resigns over Trump’s tweets, new pro-gun AG with a spine is confirmed, original regulation gets vacated, and new AG refuses to have it reimplemented.

    • Depends how the final ruling is phrased, now don’t it? As I’ve been saying for almost two years, the “bump stock ban” is a landmine for the NFA. Until there’s a ruling on the merits, there’s nothing to discuss. This entire series of articles is just clickbait citing left wing sources that have no idea how the legal process works.

  9. The Court has unwisely ducked the issue here, in my view. That said, the administration’s order, and the song and dance produced by the BATFE stand. What remains to be determined is the level of compliance or non-compliance, I expect the latter to outweigh the former, from people who purchased, in good faith, an item openly offered for sale. Believe it or not, I never had any interest in owning one of these Bump Stocks when they were commercially available, and they are no more attractive to me now.

    Neither the Trump Administration, The Supreme Court nor the BATFE have covered themselves in glory here, as I see the thing.

  10. Violations of Gun Rights, two years after The Black Panthers formed. When heroin comes to Harlem and spills to white neighborhoods ,the sound of government backfire.


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