By now, I hope you’ve heard that two cases challenging the bump-fire stock ban suffered a serious setback on Monday.*
David Codrea points out some issues with the ruling and lets us know an appeal has been filed.
Appeal is good. Because that ruling is a mess. Friedrich just shot an upright middle finger to the Constitution, statutory law, administrative procedure, physical reality, and sanity. It’s that bad.
The ruling came Monday, but I’m only know publishing this because of the sheer volume of material I had to review. The ruling itself is 64 pages long. Then there’s the motion for preliminary injunction, the government’s opposition to that, and the Guedes reply to the government response. I was provided with some supplemental material, too.
The Guedes case and the — previously — separate Codrea challenge were consolidated as Guedes et al. So this ruling is twice as damaging as it might’ve been.
The hours I spent studying hundreds of pages of documentation can be summarized quite briefly.
- A preliminary injunction temporarily stopping implementation of the rule is denied.
- A preliminary injunction isn’t called for anyway because you can get compensation later… for losing an “unlawful machinegun” for which compensation isn’t offered?
- Administrative Procedures Act (APA) required 90 days of commenting, not the 85 we got. Tough shit. Unless you can prove someone definitely would have offered something not presented by another commenter, no harm, no foul. So what if their right to speak was denied?
- APA requires a public hearing, which was denied. Tough shit. ATF said no one would have offered anything new (even though FPC/FPF was trying to do just that).
- New definitions of old terms. (This will require elaboration below.)
- The president can appoint acting-anything regardless of the Constitution and statutory law.
- Judge Dabney L. Friedrich is nuts.
In declaring bump-stock-type devices (BSTD) machineguns, the ATF found it necessary to redefine a couple of terms. A machinegun is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”
While it was long believed that “automatically” referred to the process of chambering, firing, extracting, and reloading, the government’s lawyer, one Eric Soskin, informs us it now means something that “thus allows the ordinary — of the ordinary skill, the ordinary shooter to shoot must [sic] faster.”
“Function of the trigger,” received a similarly crazed reworking. I’ll spare you the pages of argument, but it goes: “function of the trigger” refers to the finger, not the trigger. The government’s definition of machinegun now becomes…
“any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot much faster, without manual reloading, by a single volitional function of the trigger finger.”
With bump-stocks, it no longer matters that the finger engages the trigger and operates it for every shot. Engagement doesn’t count unless the finger itself is intentionally moved to operate that trigger. Volitional movement of other body parts — like the non-trigger hand and arm that move the rifle into the finger — don’t count. They defined the trigger as actually being the finger, or as plaintiff’s attorney Joshua Prince put it:
I think then it becomes the question of whether the person is actually the machine gun, and how are we going to contend with that. Because now if we’re saying for it to operate automatically it has to be the person who actuates it, we’re talking about every single person in the United States and throughout the — through the world as being a machine gun, if that’s the rabbit hole we’re going to go down.
A year ago, I was warning that this made body parts into machineguns, along with anything that can be fired “much faster.” The federal government just went to court and said so. You’re welcome. Please hit my tip jar.
As for pants and rubber bands… that remains to be seen. When all this documentation becomes public, you must read the discussion of rubber bands. When asked if a closet full of semi-auot rifles and a box of rubber bands would be considered by the ATF to be a machinegun, the DOJ lawyer answered:
You know, I think until we — I don’t think we are in a position to come out and give an advisory opinion on what the agency might decide to do with a particular rubber band.
Perhaps you thought I was joking about turning in rubber bands last year, too. Tip jar!
In denying the preliminary injunction, Friedrich found that it was not justified because “the Coalition is unlikely to succeed on these final challenges to the bump stock rule.” She essentially found that the ATF may arbitrarily redefine any word for which Congress neglect to specify a definition (the discussion included “the” and “shall,” and probably should have included “and.”
Friedrich found that federal agencies are not required to follow federal law if they don’t think it would helpful.
And she found that the President can do whatever he wants.
Did I wake up in Maduro’s Venezuela this morning?
I’m sure someone will trot out the old argument that this is Trump’s multidimensional art of the deal. When the ANPRM dropped, it was, “He’s just going to get a bunch of opposed comments so he can say no one really wants this.” When NPRM dropped, it became, “Nah, it a cunning plan to collect comments so the ATF can say they made a mistake and the rule isn’t justified.” When the rule dropped, “His plan is to get this challenged in court so it’ll get tossed as obviously, blatantly illegal.”
Well, it’s in court, and the judge isn’t tossing it. In fact, she says it’s probable that it will stand. And guess who appointed Dabney L. Friedrich, who looks to be upholding the ban, to the DC District Court.
Go ahead, tell me about the dimensional shift to SCOTUS.
Oh, and Friedrich? It’s not “Condrea.”
* That NBC article illustrates just why I will not use that outlet as a source without confirmation. It’s factually wrong on multiple points. The judge did not — yet — uphold the ban. Friedrich did not dismiss the case. And her court is not in Washington state.
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