Bump-Fire ban is signed

[Beetlegeuse]

Wait, ... did Trump just make his own order to ban bump-fire stocks illegal?


No More ATF “Guidance”?

October 11, 2019 by Shawn

Some big news this morning that may not seem that big to a lot of people. Everything from the IRS randomly changing rules on people to the ATF issuing “guidance” out of their ass could be effected by this. Only time will tell to what extent the swamp will be able to “interpret”/nullify it, of course, but it is definitely a step in the right direction.

“The order instructs federal agencies to “treat guidance documents as non-binding both in law and in practice,” include public input in formulating guidance, and make the documents “readily available to the public”:

Agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law or as incorporated into a contract.

They have 120 days following the “implementing memorandum” from the Office of Management and Budget to review their own guidance documents and rescind those that they determine “should no longer be in effect.” If it wants guidance to remain in effect, an agency must publish the document in a “single, searchable, indexed database” on its website.

The second order bars federal agencies from pursuing “a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.”

It notes that the Freedom of Information Act amended the Administrative Procedure Act to better protect Americans from “the inherently arbitrary nature of unpublished ad hoc determinations”:

The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy.

Unfortunately, departments and agencies (agencies) in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA’s goals of promoting accountability and ensuring fairness.

The order binds agencies to “apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise” to a target of enforcement, adjudication or other forms of “determination” that have “legal consequence.”

It even requires them to publish any document that they intend to enforce “arising out of litigation (other than a published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement.” This means agencies can’t spring new rules out of thin air on parties that weren’t subject to the litigation.”

One wonders if this means trump just made his own bumpstock ban illegal..

[Obs]

Not sure I am understanding...
From what I read agency code is meaningless which would make 99% of laws null and void

[Beetlegeuse]

Dis be bad. Last I checked fewer than 600 of the estimated 500,000 bump-FIRE stocks sold had been turned in.

Court: No Compensation for Destroyed Bump Stocks

10/28/19 3:17 AM | by Chris Eger

A federal judge last week dismissed a claim from bump stock retailers who sued the government for damages they incurred after having to destroy their inventory.

The plaintiffs include two companies as well as two individuals who in all lost 74,995 bump stocks to the ban which took effect in March. The case, filed in a Washington, D.C. federal court, argued that the ban’s requirement that bump-stocks be surrendered or destroyed within 90 days, with no opportunity for registration, violated the Takings Clause of the Fifth Amendment which states that private property can’t be taken for public use without compensation.

The court didn’t see it that way.

“The law is different in this case because the government, as the sovereign, has the power to take property that is dangerous, diseased, or used in criminal activities without compensation,” said Senior Circuit Judge Loren A. Smith in his nine-page ruling. “Here, ATF acted properly within the confines of the limited federal police power.”

Smith, appointed to the federal bench in 1985 by President Ronald Reagan, said the $500,000 claim under the Tucker Act would be different “if the government confiscated a gun legally possessed by a person not committing a crime,” but argued that “machine guns,” which was how bump stocks were reclassified, are not protected by the Second Amendment.

The ATF rule change, retroactively reclassifying legally-sold bump stocks as illegal machine guns, became effective on March 26, 2019. After that date, those possessing a bump stock could face federal weapons charges that carry up to 10 years in prison and $250,000 in fines for each violation. Between 2008 and 2017, the ATF had issued several classification decisions concluding that certain bump-stock-type devices were not machine guns.

In early 2018, federal regulators believed there could be upwards of 520,000 stocks in circulation.

Mark Maxwell, with RW Arms, one of the plaintiffs, told Guns.com the fight will go on:

We feel strongly that the Court got this ruling wrong, and we are preparing an appeal to the US Court of Appeals for the Federal Circuit. As we plan to file later this week we recognize there are several errors made by the Judge regarding the facts and law, and we are incredibly concerned with the dangerous precedent it sets.

We will continue the fight for the Second Amendment and property rights of all Americans, against the most well-funded defendant in America, who has a history of changing rules and regulations mid-stride.

[Beetlegeuse]

Gun Owners of America is suing the Trump Administration over the unconstitutional bump-FIRE stock ban.

...Understand that whether you like bump stocks or not or think they are worthless or not is not the issue here. It’s an issue of who has authority to write law and what those laws can be written concerning. Furthermore, our Constitution is clear that ex post facto law is prohibited....

[Beetlegeuse]

The first bump-fire stock ban appeal reached SCOTUS today and the court denied a preliminary injunction. They only lost the request for a preliminary so the entire appeal isn't dead. In fact Justice Gorsuch's comments might have lighted the way:

...I agree with my colleagues that the interlocutory petition before us does not merit review.The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments -- provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

That actually to me sounds encouraging. And if it were overturned I can only hope Trump will feel the sting of his fingers getting singed so he'll seek wiser counsel before he does anything this blatantly stupid and anti-RKBA again.

[Beetlegeuse]

Could this be the beginning of the end for the bump-fire ban?

Another Trump-Appointed Judge Benchslaps the Trump Administration for Rewriting Federal Gun Laws

“The federal government forgot the Tenth Amendment and the structure of the Constitution itself.”

Damon Root | 4.1.2020 1:50 PM

In response to 2017's mass shooting in Las Vegas, President Donald Trump vowed to use executive authority to ban bump stocks, a type of firearms accessory that the shooter reportedly used. The Justice Department soon delivered on Trump's promise with a new rule amending "the Bureau of Alcohol, Tobacco, Firearms and Explosives regulations to clarify that [bump-stock-type devices] are 'machineguns' as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968" because "such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger." In effect, the Trump administration rewrote federal gun law in order to achieve the president's preferred policy outcome.

That unilateral executive action has now come under blistering criticism from two federal judges appointed by Trump himself.

On March 2, Supreme Court Justice Neil Gorsuch issued a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The executive branch "used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite." Yet "the law hasn't changed, only an agency's interpretation of it," Gorsuch complained. "How, in all of this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"

Gorsuch just got some company. This week, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, issued an opinion in Lane v. United States that basically accused the Justice Department of ignoring basic principles of constitutional governance in its defense of the Trump administration's bump stock ban.

The Justice Department justified the ban as a lawful exercise of the federal police power, Judge Starr observed. But "the federal government forgot the Tenth Amendment and the structure of the Constitution itself," which grants no such power to the feds. "It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power," Starr wrote, he had no choice but to deny the government's motion to dismiss the case. He then tartly added: "The Court will allow the government to try again and explain which enumerated power justifies the federal regulation."

To say the least, Trump's bump stock ban is not off to a winning start in federal court.

[Beetlegeuse]

Tenth circuit orders en banc rehearing in bump stock case

"En Banc" means it's all the judges who sit in that court. It's usually done to reconsider a decision made by the customary 3-judge panel.

Specific questions the court wants answered:

The Petition and response were circulated to all non-recused active judges of the court. A poll was called, and a majority of the non-recused active judges voted to rehear this matter en banc. Accordingly, the Petition is GRANTED, the court’s May 7, 2020 judgment is VACATED, and this matter is REOPENED. See Fed. R. App. P. 35(a); see also 10th Cir. R. 35.6 (noting the effect of the grant of en banc rehearing is to vacate the judgment and to restore the case on the docket).

Although this entire case will be reheard en banc, the parties shall specifically address the following question[s] in supplemental memorandum briefs:

1. Did the Supreme Court intend for the Chevron framework to operate as a standard of review, a tool of statutory interpretation, or an analytical framework that applies where a government agency has interpreted an ambiguous statute?
2. Does Chevron step-two deference depend on one or both parties invoking it, i.e., can it be waived; and, if it must be invoked by one or both parties in order for the court to apply it, did either party adequately do so here?
3. Is Chevron step-two deference applicable where the government interprets a statute that imposes both civil and criminal penalties?
4. Can a party concede the irreparability of a harm; and, if so, must this court honor that stipulation?
5. Is the bump stock policy determination made by the Bureau of Alcohol, Tobacco and Firearms peculiarly dependent upon facts within the congressionally vested expertise of that agency?

No clue what the "chevron" business is about.