U.S.A. – -(Ammoland.com)- An application to stay implementation and enforcement of the “bump stock” ban was filed Tuesday in the Supreme Court by attorneys for the appellants in the consolidated case of Guedes et al., v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. The request to Chief Justice John Roberts, as Circuit Justice for the United States Court of Appeals for the District of Columbia Circuit (who in March denied an emergency stay application), asks for a ruling “until the resolution of a forthcoming petition for writ of certiorari, and any subsequent proceedings, in this case.”
“Today’s application asks to put a hold on the agency’s Final Rule,” attorney Stephen Stamboulieh, one of the counsels for applicants, explained to AmmoLand Shooting Sports News. “Because the Circuit Court’s majority and the District Court both incorrectly relied on the Chevron doctrine, we believe the Supreme Court needs to weigh in and clarify whether the application of Chevron really applies to a criminal statute.
“We believe Judge Henderson [the dissenting Judge in the United States Court of Appeals for the District of Columbia Circuit — DC] reached the right conclusion that the ATF exceeded its statutory authority in expanding the definition of machinegun, and we are hopeful that the Supreme Court gives this case the attention it deserves,” Stamboulieh declared.
To clarify, as defined by Cornell Law School, “A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The U.S. Supreme Court uses certiorari to select most of the cases it hears.” Simply put, Tuesday’s application asks for a stay until a petition is filed with the Court and a decision to hear the case is rendered.
Likewise, many will be unfamiliar with the term “Chevron deference.” Again per Cornell, “the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question.”
As plaintiffs have argued, and as the application again points out:
“Despite the government expressly and repeatedly rejecting Chevron deference, and having never invoked such deference in the district court or the court of appeals, the court of appeals nonetheless determined that Chevron could not be waived, that it applied to the interpretation of the criminal statute in this case, that the statute was ambiguous, and that the government’s reading was an acceptable interpretation of the ambiguous statutory language.”
The insistence that “Chevron review does not apply to a statute/rule with criminal sanctions” comes from the opinion of DC Circuit Judge Karen LeCraft Henderson, in her dissension-in-part with the April 1 order [Also included as “Attachment A” in the above-linked application — DC].
“Like countless other Americans, I can think of little legitimate use for a bump stock,” Judge Henderson wrote. “That thought, however, has nothing to do with the legality of the Bump Stock Rule. For the reasons detailed supra, I believe the Bump Stock Rule expands the statutory definition of “machinegun” and is therefore ultra vires [beyond ATF’s legal power or authority — DC]. In my view, the plaintiffs are likely to succeed on the merits of their challenge and I would grant them preliminary injunctive relief.”
Henderson also showed the flaws in the rationale for changing the definition providing a unique argument.
“[A]wkward syntax does not equal ambiguity, as illustrated by the lost art of diagramming,” she wrote, and then provided the proof:
At this point, resubmitting the case to the DC Circuit for an en banc (full court) review remains an option, and the application was submitted to SCOTUS to continue the stay pending submission of a petition for writ of certiorari. If and when that happens, all the High Court need do to uphold the ban is…nothing. They can refuse to hear the case and not even give a reason why if they feel like it. On the other hand, they can agree to hear the case, at which point gun owners will find out if their optimism in a perceived 5-4 advantage has been justified.
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Notes:
- See key related filings and events at the Firearms Policy Collation website.
- Disclosure: Attorney Stamboulieh represents me in this and several other matters.
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UPDATE: The Supreme Court has denied the latest stay application.
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.
The NRA was wrong for telling Trump Bump Stocks were garbage; Trump was also wrong for banning them by executive powers. The democrat party has failed us, the republican party has failed us and trump is failing us. I have no confidence in our government local state or federal. There is continued talk of a coming collapse or civil war or even world war. i dont know whats going to happen but it doesn’t look good. I do know people are starting to stockpile food, medial supplies and ammo. I heard a talk show host claim magazine sellers were deliberately… Read more »
A.T.F. acting director stepping down at end of April : Rats abandoning ship.
a most excellent observation, Freebird!
It is an illegal taking.
John Roberts and RBG will be a problem for years unless the President can get another pro-second amendment justice in. I had a Slide-Fire stock and it jammed my carbine up often so I sold it. But, I don’t believe in the ban!
So this is another reason why the reins act needs to be passed and shoved down the throat of Congress and the Senate.. it should be law that Congress has to specifically pass laws that would have an effect on the citizens. In other words, the unelected beuracrat overreach has to be stopped. In this same line of thought, Congress has to be responsible for the laws, rules, and regulations that the bureaucracy forces us peasants to comply with. Also, a burning question comes to mind. In what world of unconstitutional illegal unlawful overreach does a simple majority passed law,… Read more »
@Joe, Ahem … the Senate is part of Congress. There is no act that can be shoved down Congress’s throat because later Congresses have the authority to modify, or repeal acts of a previous Congress. Every act of Congress has an effect on citizens … so what is this “reins act” that you are referring to?
If acting attorney general Whitaker signed the original order some could say he didn’t have the authority to do so since he wasn’t confirmed by the senate to be acting attorney general, so said the democrats and the media after president Trump nominated him.
Can’t have it both ways therefore the entire order should be moot unless the new attorney general who has been confirmed by the senate signs a new order.
I strongly support the Second Amendment. The legal and 2A definition problem here is the bump stock is NOT a “protected” firearm. It is an accessory (like a suppressor) and therefore can be restricted. Now, maybe down the road the Gov. will allow bump stocks to carry a serial number, ATF fee, registration etc. and then be a Class III item. But I bet (and don’t like) the Supremes will uphold the ban because it is not 2A protected in the Bill of Rights as a firearm.
Jim: Your logic is flawed but I’ll follow it. You assert it is an accessory and can be “restricted” the same as a suppressor. Following your logic, ATF could restrict a scope, laser, thermal imaging device…anything they deemed an accessory to a firearm. Where, exactly, would YOU draw the line on what “accessories” the government could control or restrict and, more to the point, HOW would you draw any distinction between what could and couldn’t be restricted? Or would you rely on Chevron Deference, which we’ve already witnessed as having the general interest of taking freedoms from citizens, not enhancing… Read more »
@jh45gun, parts is parts. Can’t ban parts or the elitists would have banned barrels, or receivers, or triggers years ago. Agencies do not have the power to change the intent or verbiage of a Congressional act.
The Commerce Power was not intended to ban anything from interstate commerce. It was intended to prevent states from taxing and tariffing each other.
AND to declare it a breach of the Constitution when State C declares Item 114, (made in State T and laawful to manufacture, distribute, sell, and be used by its residents in State T) may NOT enter State C. The current massive acquisition of standard capacity magazines made in various states that had been banned in California but that ban just having been stricken down is an example of a violation of the intent of the Interstate Commerce Clause. California never DID have constitutoinal authority to ban the Standard Capacitu magazines. Their itiotic AtG Javvie the Beast is wringing his… Read more »
so what you are saying, taken literally and fully applied, would hold that that SecondArticle of Ammendment protects my right to ARMS.. so I can have my Brown Bess or rifled musket. Agree so far? But by your tortuous “logic” I can NOT have my bayonet, sling, cartridge box, powderhorn, flint can, wiping rags, oil can, tallow lumb, ball moulds, a stock of lead back home, nor a fire and kettle in which to melt same. Nor might I possess, let alone mount and use, a telescopic sighting device (which DID exist on 19 April 1775) To which I call… Read more »
@Tionico and all, YEAH! What he said!
Tionico, that happens to be state law in Oklahoma. If it deals with firearms, nobody may prevent its possession or use (by those legally able to possess said firearms).
People who say ” I support the second amendment but…” Are full of poo
Jim: “The legal and 2A definition problem here is the bump stock is NOT a “protected” firearm. It is an accessory (like a suppressor) and therefore can be restricted.” — Where have you been, Jim? The problem is that the ATF has “determined” that bump-fire stocks ARE machineguns, and NOT mere accessories. And with the exception of dissenting Judge Henderson, so far the courts are accepting the ATF’s ruling. https://zelmanpartisans.com/?p=5929 If you want to get up to speed on the subject search “bump-fire” on that site. And I’ll give you an excerpt from a coming column: “We are fighting lunatics… Read more »
Relying on the OPINION of either a politician or 9 judges to determine whether you have a Right that is clearly defined in the Bill of Rights. Is not only folly. It is spitting in the face of every person who fought and died . To not only provide You with those Rights but, also preserved those Rights. We’ve been playing this game for far to long. I for one no longer care what they decide. I will either LIVE Free or DIE Free. Keep Your Powder Dry.
It’s on purpose, so they can bull shit us.
IMOA some members of the Supreme Court are unable to interpret the written Constitution and BoR.
“The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.”
https://www.supremecourt.gov/about/constitutional.aspx
It seems the Taking Clause, in part, would defeat this “rule” change. The ATF repeatedly advised Americans Bump Stocks are not machine guns, thus legal to manufacture, purchase and possess without any fear of reprisal, no tax stamps, nothing. Full steam ahead, legal commerce flourished by some reports up to 1/2 million Bump Stocks purchased. Did not the Brady Bill (now expired and Congress refused to reinstate) grandfather those firearms at issue, thus the Taking Clause was honored. Does not the NFA grandfather machine guns purchased before the restrictions effective date, now requiring a tax stamp ($200) to own a… Read more »
I don’t believe the Supreme Court will even Hear the Case. You check back on 2nd Amendment Cases heard in the Supreme Court they are few and far between! The Supreme Court on almost any Case dealing with the 2nd Amendment takes the stance Let The Chips Fall Where They May! Which is a Shame they take that attitude when the 2nd Amendment is the only Amendment to the Constitution That Has The Claus “Shall Not Be Infringed” No other Amendment Has That or An Equal Clarification of the Amendments!
i can think of little legitimate use of an appointed judge, judge henderson .how can most judges be fair when we already know which way the lean the day they are appointed and by who appointed them?
In these “court” cases, the use of FOREIGN LANGUAGE should not be allowed. ENGLISH is the language of America. ENGLISH is what ALL “OFFICIAL” laws, contracts or agreements MUST be conducted in. STOP THE USE OF FOREIGN LANGUAGE WORDS. ONLY COMMON USE ENGLISH WORDS MUST BE USED!!!!!!!!
I think what you are referring to as FOREIGN LANGUAGE WORDS is Latin,the root/base of all language.
@Green Mtn Boy, What you mean is the root / base of a DEAD language. So, with common sense, which still appears to be illegal to use with politicians, if the language is dead so is the use of it.
It’s on purpose, so they can bull shit us.
They won’t hear the case. They, like EVERYONE else, are not on our side. When will all of us realize this? No, not even DJT, as much as I admire what he is trying to do, is not on our side. None of these people come from where we come from. They have different beliefs. I predict the the case will not be heard and this precedent will be the basis for even more, new ways to rape us and the Supreme Court knows it. This is only going to stop when we stop it and we are so decided… Read more »
Let’s hope that the courts make the right call, otherwise we will all be one step closer to #2AmRev.