Legal challenge to Trump bump stock ban to have hearing today; Runs up against March 26 deadline

On February 20, 2018, President Trump issued a memorandum instructing the Attorney General "to dedicate all available resources to … propose for notice and comment a rule banning all devices that turn legal weapons into machineguns."

His administration followed through on his wishes, and on December 18, 2018, Acting Attorney General Matthew Whitaker announced that the Department of Justice had amended the regulations of the ATF. The rule was published in the Federal Register on December 26, 2018, and will go into effect 90 days from that date, which is March 26, 2019.

The Firearms Policy Coalition (FPC) immediately acted by filing a lawsuit challenging the Trump Administration’s “bump-stock” ban, and Acting Attorney General Matthew Whitaker directly.

FPC, which owns a “bump-stock” device, seeks a preliminary injunction, a permanent injunction, and declaratory relief preventing Matthew G. Whitaker from exercising any authority as Acting Attorney General, and preventing from going into effect the ATF’s Final Rule on “Bump-Stock-Type Devices” (Docket No. ATF-2017R-22).

The case and motion argue that Acting Attorney General Mathew Whitaker, who President Trump placed into the role after the resignation of then-Attorney General Jeff Sessions, has no authority to issue the rule because the President failed to adhere to the Constitution’s Appointments Clause and federal laws regarding succession and vacancies in the office.

In a separate case, the Firearms Policy Foundation (FPF) argued that the rule itself is illegal:

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’.”

The cases were consolidated, and on February 26, 2019, a federal judge appointed by President Trump ruled that the ban could move forward. The FPC/FPF immediately appealed, stating in part:

It is important to note that today’s order is not a final ruling on any claim, and is merely a trial court’s denial of a temporary injunction. And while we had hoped for a quick and positive outcome at the trial court level, we have been and remain committed to litigating these issues as much as it takes to completely resolve the cases and protect Americans from a rogue and growing executive branch, including by petitioning the United States Supreme Court if necessary.

The FPC/FPF also requested an expedited appeal from the Court of Appeals for the D.C. Circuit, and on March 1 a three-judge panel of the D.C. Circuit granted the motion to expedite the briefing and arguments. On March 4, FPC/FPF filed their opening briefs, and issued a press release documenting the following timeline:

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.

Unless the FPC/FPF appeals result in a temporary injunction or stay of enforcement, the ATF’s Final Rule will take effect on March 26, when the Trump administration 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.

Gun owners who wish to support the costs of litigation and defend the Constitution may contribute at http://bit.ly/bumpstocks.

Chad D. Baus served as Buckeye Firearms Association Secretary from 2013-2019. He is co-founder of BFA-PAC, and served as its Vice Chairman for 15 years. He is the editor of BuckeyeFirearms.org, which received the Outdoor Writers of Ohio 2013 Supporting Member Award for Best Website, and is also an NRA-certified firearms instructor.

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