Firearms Policy Coalition Files for Expedited Appeal of Bump Stock Ban Ruling

Firearms Policy Coalition

Last week and DC District Court judge OK’d President Trump’s bump stock ban which arbitrarily re-classifies bump fire stocks as machine guns. Now the Firearms Policy Coalition and their co-plaintiffs have filed for an expedited appeal with the DC Circuit Court of Appeals. Here’s their press release:

WASHINGTON, D.C. (March 4, 2019) — Today, attorneys for Firearms Policy Coalition and Firearms Policy Foundation filed opening briefs in their consolidated appeals with the Court of Appeals for the D.C. Circuit in the ongoing federal litigation challenging the confiscatory “bump-stock” ban rulemaking by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Copies of the briefs and related filings are available at BumpStockCase.com.

On February 25, United States District Judge Dabney L. Friedrich denied motions for preliminary injunction in the matters. The ruling came little over one year after President Trump directed the Department of Justice, at the time headed by Attorney General Jeff Sessions, to “as expeditiously as possible” propose “a rule banning all” bump-stock type devices. The challenged Final Rule was signed by Acting Attorney General Matthew Whitaker and published December 18, 2018.

Counsel for FPC and FPF filed notices of appeal on February 25, and on February 26, they requested an expedited appeal schedule from the Court of Appeals for the D.C. Circuit. Last Friday, March 1, a three-judge panel of the D.C. Circuit granted FPC’s and FPF’s joint motion to expedite the briefing and arguments, setting today as the deadline to file the opening briefs. The government’s answering brief will be due on March 13, and the appellants’ reply brief will be due on March 15. Oral arguments will be heard by the Court of Appeals on March 22 at 9:30 a.m.

In its brief, FPC argues that the Rule is invalid because it was issued by then-Acting Attorney General Matthew Whitaker. FPC explains that the designation of Mr. Whitaker – who was neither in the Department of Justice chain of command nor confirmed by the Senate – to serve in that role was both illegal and unconstitutional.

In the Guedes appeal, FPF argues that the text of the federal statutes at issue in the Final Rule are clear and unambiguous, that the rule of lenity precludes the ATF’s proposed new definition of ‘machinegun’, and that the rule is unreasonable, arbitrary, and capricious. The brief also argues that the “district court abused its discretion in finding the statutory language ambiguous and erred as a matter of law in according ATF Chevron deference regarding the terms ‘single function of the trigger’ and ‘automatically’.”

Thomas C. Goldstein, Daniel Woofter, Charles H. Davis, and Erica Oleszczuk Evans of Goldstein & Russell, P.C., are on the brief for the FPC appeal. Attorneys Joshua Prince and Adam Kraut of Civil Rights Defense Firm, P.C., and Erik Jaffe of Schaerr Jaffe LLP are on the brief for the FPF appeal.

Unless the appeals result in a temporary injunction or stay of enforcement, the ATF’s Final Rule will take effect on March 26, when the federal government will consider the affected devices to be illegal “machinguns” and carry severe criminal penalties including large fines and up to ten years in federal prison.

FPC and FPF remain committed to protecting Americans who own and possess bump-stock devices from the ATF’s unlawful Final Rule.

Attorney Tom Goldstein (www.goldsteinrussell.com) is an appellate advocate, best known as one of the nation’s most experienced Supreme Court practitioners. He has served as counsel to a party in well over 100 merits cases at the Court, 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, the firm’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 (www.scotusblog.com) – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.

Attorney Erik S. Jaffee (www.schaerr-jaffe.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and has been a sole practitioner since 1997. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the cert. and merits stages.

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.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.

comments

  1. avatar pwrserge says:

    I’m with the FPF reading of the relevant precedent. There’s no way that the ATF can redefine basic English to make it fit their agenda. Allowing them to do so is an absurd precedent.

    1. avatar uncommon_sense says:

      pwrserge,

      Oh, come on now, our legislatures and courts have elevated verbal gymnastics and verbal jiu-jitsu to a level heretofore never imagined. Get with the program and show your support!

      /end_sarcasm

      1. avatar BATF Criminal Fraud says:

        BATF was the B.I.R. ( Bureau Internal Revenue ) during prohibition. When that was declared unconstitutional it was , with stroke of pen by Treasury Secretary who had no authority , reclassified as a ” NEW AGENCY “.

        If A.T.F has any venue & jurisdiction at all , it is limited to collecting TAX on an IMPORTED firearm.

        ” The Bureau of Alcohol, Tobacco, and Firearms, has no venue or jurisdiction within the borders of any of the 50 States of the united States of America, except in pursuit of an importer of contraband alcohol, tobacco, or firearms, who failed to pay the TAX on those items. As proof, refer to the July 30, 1993 ruling of the United States Court of Appeals for the Seventh Circuit, 1 F.3d 1511; 1993 U.S. App. Lexis 19747, where the court ruled in United States v. D.J. Vollmer & Co. that “the B.A.T.F. has jurisdiction over the first sale of a firearm imported to the country, but they don’t have jurisdiction over subsequent sales.” http://usa-the-republic.com/revenue/BATF-IRS%20Criminal%20Report.html#tgotm

  2. avatar Rusty Chains says:

    If Congress wants bump stocks banned, they should do it themselves, so we know who to primary. The executive branch isn’t allowed to redefine terms as and when it sees fit.

    1. avatar binder says:

      Why bother. The way it is, the pro-gun side is chewing themselves to peaces, and all they have to do is wait for someone to used one again and they can just fingerprint more. Congress KNOWS that they can get it passed, but if they do, it will just make Trump look like more of a moderate.

      And trust me, they are not toys. Every thread about their construction was shut down on the AR sites. Every “good” video about setting them up was pulled from the not just from YouTube but also the Full30, not by Tim, but by the content creators. Poke around the internet a bit, but you need to look at archives. If they were just “toys” why in the hell did all the “pro gun” sites pull all their info?

      1. avatar Cooter E Lee says:

        I don’t trust you and they are toys and I am speaking from experience and yes I have a bipod and recoil rail. I saw your tired videos that never show the target and read your drivel about them being comparable to a SAW. Dude, have you ever fired a bumpstock because I have to wonder?

        Every time they come up and even when they don’t you always are bringing up this same nonsense. I don’t care what your malfunction is, but the readers of these comments might think you are the voice of reason and experience on bumpstocks when you clearly haven’t got a clue.

        For anyone that hasn’t had the opportunity to play with one, the stock is loose and and you have to hold it a particular way not conducive to accuracy with your support hand. Even with a bipod and a recoil rail it jumps all over because the whole gun has to be loose enough to slide back and forth 1/4 inch. Come to a machine gun shoot and shoot a M4 and feel the difference in control. After 90 rounds the barrel in ANY .223 is going to be smoking and hard to hold without gloves. Further firing will likely cause malfunctions and eventually barrel damage. That’s why on a SAW, you can quick change the barrel.

        An objective shooter experimenting going from a bumpstock back to a semi auto aimed shots is going to get more hits on target in a given amount of time by AIMING. Honestly, we’re lucky the guy in Vegas didn’t use a bolt action hunting rifle and AIM. Or he could have spent a little time and figure out how to go full auto illegally since firearm laws aren’t really a compliance priority when you’re trying to murder as many people as possible. And that’s the TTAG using bumpstocks.

        1. avatar Binder says:

          Wait, are you telling me you have used one with a bipod? And I’m assuming you figured out how to overcome stoppages. And it “jumps all over”? 😉

          Ok I guess you’re right, they are just “toys” and totally useless.

          Also, word of advice, that recoil rail uses a spring. Slidefire + spring may equal Akins. Just saying, I personally would not want to be the test case. But then again what do I know.

          And only 90 rounds out of your AR before an overheat stoppage, may want to get a new gun.

        2. avatar Rusty Chains says:

          Cooter is right, it is a range toy that I wouldn’t give a damn about otherwise. The Problem was ATF did as they were told and redefined what a machine gun is. That definition is already set in the law and they do not have the power to change it. The only reason the thing was at all effective in Los Vegas was because the large crowd created a single very large target while they were all packed together.

        3. avatar Cooter E Lee says:

          Yes, I own one on a currently on a Colt OEM 1 6920 that has a bipod and I have no issues with stoppages. I can mag dump 3 consecutively and then the rifle gets hot. I could continue at that point, but I’d rather play it safe than get it too hot and cause issues. I have also used it on a MP 15-22 with a lighter trigger and a recoil enhancer.

          Typically what I’ve done is put a old barn metal roofing panel with a target taped on at 75 yards. The first round of a “controlled” burst is the only one on target. On a mag dump I might get an additional 2 or 3 hits on the metal somewhere.

          So I’ve never had anyone time me, but it takes maybe 2.5 seconds to mag dump and then maybe ?5 seconds? To change mags and charge? Longer if it’s on a bipod and you have to work closer to the ground. I really don’t know times as I don’t race like that. I do know that I can consistently hit a paper plate at 75 yards with semi auto fire about every 1-2 seconds. While someone with a bumpstock is changing mags and adjusting, I’m putting aimed rounds on target and I can easily switch from one to the next.

        4. avatar Cooter E Lee says:

          A bumpstock on a bipod “jumps around” because it is inherently sloppy in its movements because you have a plastic surface sliding on another plastic surface with the tolerances to allow that without bearings, bushings, or lubricants. Even on a bipod, you’re support hand can’t hold it down or it won’t function

          At one time, there was a video online of slidefire using an AR turned upside down in a carriage that was attached using picatinny rail to slides with bearing. The problem was that it used a fixed bar on the carriage platform to actuate the trigger. I’m not a lawyer, but using that bar to actuate the firing mechanism changed the determining factor of finger breaking the trigger to finger pushing forward the stock. At that point, I believe it to be a machine gun as the “trigger” is now just pushing the rifle forward and that would allow multiple shots to be fired with one “trigger.”

          I never got to try that, but I would assume multiple mounting points and sliding on bearings would make it far more effective and probably compete with SAW accuracy.

          But if you don’t care about laws & you’re smart and handy enough to get some drawer slides and pic rail connections, you’re probably also intelligent enough to mill out for a DIAS or drill an extra hole for a FA fire group.

  3. avatar James J. White says:

    Bump stocks are a freaking toy. Learn to live without them and go on to something important like the democrat party’s plan to confiscate firearms.

    1. avatar Ton E says:

      OK if you don’t see the precedent being set by the president directing the DOJ to redefine what constitutes a machine gun not only are you missing the point but trying to convince you that it being upheld will enable the next Democrat president. Most would rather them not have more ammo to try and do that.

    2. avatar EWTHeckman says:

      Banning bump stocks IS part of the plan. It establishes precedent to simply change the law without going through congress. It establishes the ability to ban “rate increasing devices.”

      In other words, it’s the scout mission blazing the trail for banning semi-automatic firearms that are “easily convertible into machine guns” just by adding or modifying a part just like is done with a bump stock.

      It violates the 2nd Amendment, the 5th Amendment, and the Constitutional separation and authority to exercise powers. Though the devices are “toys”, the action taken against them is flagrantly unconstitutional and tyrannical.

    3. avatar Defens says:

      They may very well be a freaking toy. I never had the desire to attach one to any of my semi-autos. But that’s not the point. If ATF can arbitrarily re-define the clear legal definition of a machine gun to include a semi-auto with a different stock, then they can redefine almost any other gun component to fit the needs of a confiscatory agenda. This has really nothing to do with the utility of a bump stock – it’s all about putting a stop to regulation by fiat. That’s not the role of the executive branch.

    4. avatar doesky2 says:

      Bumpstocks perfectly aligns with the idea of “….pursuit of happiness.”
      You’re a know nothing.
      Would like to be on the receiving end of this toy?
      800rds/min on a bone stock 6920.

    5. avatar Green Mtn. Boy says:

      They may or may not be a toy,however they were legal and legally owned property that is now by fiat declared illegal,with no just compensation of privately owned property,aka UnConstitutional from the beginning.

    6. avatar barnbwt says:

      I don’t expect you to understand this, but Trump is confiscating firearms with this move. MGs are considered firearms.

      So what you are really saying, is you prefer Republican/Trumpian confiscation to Democrat confiscation.

  4. avatar Truckman says:

    I have never owned one or wanted one I think if citizens of this nation they should be able to have a bump stock or as far as that goes any gun that is available to the military or police forces should be able to buy what they can afford

  5. avatar NORDNEG says:

    I think the President screwed up on this one. I’m not a fan of the bump stock, but it’s still not a machine gun like the anti’s think it is. They still have a trigger mechanism that will do the same thing. All there good for is burning up ammo, in a fire fight they could be useful, but otherwise, just something to play with. Like all autos there is no accuracy to be had after the first couple of rounds. Like I said , if you’re getting bum rushed it’s a different story…

    1. avatar Binder says:

      Funny how the military uses machine guns, but ever notice how they don’t shoot them off handed. Please everyone get this through your head, you don’t fire rifle caliber machine guns, even intermediate rounds, unsupported if you want to hit anything. But a supported machine gun is a mass murder machine.

      1. avatar EWTHeckman says:

        Yes, they’re “mass murder machines”, because all soldiers fighting a war, even to defend their own country and/or lives, are nothing but mass murderers.

        ::: hard eye roll :::

        Congratulations, you’ve proved beyond all doubt that you’re a fool.

      2. avatar Esoteric Inanity says:

        Numbers 22:28.

        1. avatar James J. White says:

          Something ain’t right about the “firearms coalition” based in Sacramento, Ca. As of 2014 their entire assets were around 200k and their expenses were around 200k. Why would they take on an expensive lawsuit about “bump stocks”?

        2. avatar Esoteric Inanity says:

          “Something ain’t right about the “firearms coalition” based in Sacramento, Ca. As of 2014 their entire assets were around 200k and their expenses were around 200k. Why would they take on an expensive lawsuit about “bump stocks”?”

          No idea, but something tells Esoteric Inanity that it has little to nothing to do with Balaam and his talking ass.

  6. avatar Saint Mike says:

    DJT will be a one term President. Bumpstocks. In two weeks 550,000 plus instant felons former / current Trump voters.

    1. avatar barnbwt says:

      It was complete madness; the guy wins by a mere 200,000 voters, and pulls this shit. All I can guess, is he knows he can’t win regardless now that Florida is a solid-blue state, and decided to pin the inevitable loss on the “gun nuts” he’s always hated & worked against. He’ll make us look petty & vindictive for being the missing link in turnout numbers that costs him the election, the new openly anti-gun wing he opened in the party driving us from the RNC for good.

      1. avatar Saint Mike says:

        Agreed , complete madness. Nobody was even talking about bumpstocks when he decided to ban them.

        Donald “due process later” Trump?

  7. avatar Jim Bullock says:

    Decent chance we’ll get a couple useful precedents out of this, limiting administrative law making in general, and executive orders, specifically. Which state’s recent gun law said “certain” guns n etc without ever defining which “certain” guns they meant? No, you can’t punt all the lawmaking over to some agency with: “Do stuff.”

    As for the politics, on this issue Trump is not ideological. He needs to look to himself smarter than whoever is coming at him. His thinking goes: bump stocks are silly. I’ll do the obvious thing when all those anti-gun people couldn’t. He’s very like Obama in that “Git er done.” way.

    As for policy, it’s dumb, but when has that ever stopped anything.

    Myself, I’m intrigued by the back and forth w congress over the wall funding exec shenanigans. D’s just to get the prez, n R’s some in principle, accidentally reeling in exec fiat. I wonder if they realize that winning this one means they might have to do their jobs in the future?

    1. avatar Saint Mike says:

      Whatever Trump’s thinking is does not matter, I repeat 550,000 instant felons in two weeks, DJT will be a one term President.

  8. avatar Wally1 says:

    I was taught a technique that does not need a bumpstock for rapid fire. With a little practice it allows rapid fire with a unmodified AR. Now what next, are they going to outlaw how I hold a firearm. The issue is not bumpstocks, It’s the ATF being allowed to re-write law and definitions of firearms with no oversight, which according to law is Illegal. Just imagine a county commissioner being able to re-write your property lines with no restrictions, based solely on their idea of where that property line should be, not based on facts!

    1. avatar James J. White says:

      The resources could be better spent on law suits that accomplish important 2nd Amendment victories rather than making toys for big boys legal. Since the bump ban was instituted by President Trump I sense a political motive.

      1. avatar Anymouse says:

        The issue is the BATFE arbitrarily redefining something as a machine gun, contrary to written statutory definition. By the same logic they used, all semi auto can be reclassified as machine guns if recoil force is greater than trigger force. If they can take a gun and make it fire more than one round per “single action of the trigger,” it’s a machine gun. You can bump fire just about any semi auto, including handguns, without using a bump stock. I know they said in this rule that bump fire without a bump fire stock is ok, but they can just reverse themselves with another ruling, as they did on this case. This would mean that just about all semis, except heavy DAO, made after May 1986 would need to be destroyed without compensation since they also ruled that they are ineligible for NFA registration. Even heavy DAOs might be banned since they would be “easily convertible” to a machine gun by replacing with a lighter trigger. I guess you’d rather wait for that fight.

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