Fifth Circuit Blocks Enforcement Of Trump Bump Stock 'Ban'

P. Gardner Goldsmith | January 9, 2023
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A few prerequisites.

First, government “bans” don’t stop demand. They fuel a criminal black market.

Second. The U.S. Constitution not only does not give the feds any power to ban ANYTHING, the Second Amendment strictly forbids any level of government from infringing on the right to keep and bear arms.

Third. All judges, on all levels, swear oaths to protect and defend the U.S. Constitution, such that, if they encounter a statute alien to the precepts in that document, they are duty-bound, and sworn, to oppose it, lest they, too, become “domestic” enemies of the very so-called “rule book” that allowed previous generations to create their seats as judges.

Fourth. Even if the Constitution were amended to allow the feds or lower level political units to “ban” something like a “bump stock,” such aggressive threats against people who peacefully own a piece of hardware would be immoral.

Which brings us to the big development from the Fifth U.S. Circuit Court of Appeals.

On January 6, the “en banc” empaneled, 16-member court released its majority 13-3 decision in the highly anticipated case of “Cargill v. Garland, Dettlebach, ATF” – and the ruling is a big win for constitutionalists and gun-rights proponents…sort of.

The disputants and judges in this legal wrestling match focused on whether the Bureau of Alcohol, Tobacco, and Firearms (ATF, enjoy looking for that in the U.S. Constitution) were sanctioned to define bump stocks as “machine-guns” and, as a result, claim the “power” to “regulate” or completely ban them based on the already standing 1934 National Firearms Act, the 1968 Gun Control Act, and the 1986 Firearms Owners’ Protection Act (which wasn’t “protection” at all, but an attack on the right to keep and bear arms).

The ATF imposed their “rule” defining bump stocks as “machine guns” in March of 2019, per Donald Trump’s so-called “Executive Memorandum” of February, 2018, instructing his Attorney General (then, Jeff Sessions) to get the bureaucracy moving on new “rules” to ban the gun accessories labeled “bump stocks” -- accessories that help apply pressure to the stock of a firearm in order to more rapidly pull the trigger.

As bureaucrats often do, in order to “ban” the bump stock, the ATF under Trump, and under Biden, has expended great energy to pretend that something is not what it actually is.

And, as we often see on every level of the blindingly obsequious judicial branch in the U.S., though majority of this Fifth Circuit en banc panel ruled against the ATF calling bump stocks “machine guns,” they did not pay heed to the core violation of the ATF existing at all, and did not bother to note that no level of government has any “power” to infringe on the purchase of a gun part or accessory.

Instead, they embraced normalcy bias, accepting the established “gun control” acts, and merely arguing the finer points of whether a federal agency like the ATF has the power to define bump stocks as “machine guns” without the Congress passing a law defining them as “machine guns” and making the previous statutes apply.

Easy, right? In other words, one can ask the majority on the Fifth Circuit, “If Congress – rather than a federal bureaucracy -- takes the reality-avoiding leap of defining a gun accessory as a gun, that makes it perfectly fine to tell people they can’t own such a thing? That makes it okay for the feds to use my neighbor’s tax cash, for the feds to ready GOVERNMENT GUNS within the ATF, and tell peaceful people they’d better urn over the accessory, now defined as a “gun” by Congress?

Related: Full Sixth Circuit Court Splits, Allows Insulting Trump Bump Stock “Ban” To Stand | MRCTV

And, if Congress WERE to define them as guns, wouldn’t the Second Amendment come into play and apply even more protection for the citizen?

As noted, the Fifth Circuit majority focused on the surface, the devilish details, not the devil behind it all: the idea that Congress can do anything to stop people from obtaining guns or gun parts.

Many conservatives are calling this a victory.

Wrote the majority:

“Cargill (the plaintiff, Texas resident Michael Cargill) is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” (sic) set forth in the Gun Control Act and National Firearms Act. But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability.”

What do the judges mean by “rule of lenity?”

That’s tied to what’s known in legal parlance as the Chevron tradition, and goes back (in name, at least) to 1984 and a case called “Chevron, USA, Inc, v. Natural Resources Legal Defense Council, Inc.” According to the tradition, judicial deference given to “administrative actions” if the court members believe said “administrative actions” are consistent with the spirit of the statutes and terms creating the administrative unit and the possible power the Congress might have envisioned for the bureau.

In other words, judges can and will overlook the immoral, unconstitutional existence of an agency, and they even will accept additional insults to the Constitution and basic ethics if the new “power” the agency claims seems to kinda be close to what the Congress wanted when it wrote legislation creating the agency or the field of “regulation” in which the agency is running.

The Fifth Circuit majority notes that they are much stricter about bureaus adhering to the original intent of Congress when the penalty for the newly invented, Executive agency-created, transgression is on felony-level.

 “A rich legal tradition supports the ‘well known rule’ that ‘penal laws are to be construed strictly.’ United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–95 (1820).”

But the Fifth Circuit majority is not strict, in any way, about what are supposed to supersede the bureaus, the officers, the President, and the Congress: the U.S. Constitution, and our more basic, never-changing, always extant Natural Rights.

So, while some might feel a charge of satisfaction in seeing this federal appeals court ruling, while some might view this as both a blow to the insufferable Biden Administration and to Trump’s egregious original attack in issuing the so-called “bump stock ban” in the first place. It’s merely a Pyrrhic victory. A temporary and possibly transitory win that actually reaffirms the erroneous idea that “IF” Congress wrote it in legislation, “THEN” it would be okay for the ATF to ban the bump stocks.

Does anyone else see a problem with this mentality?

Related: Business Federation Meets with Trump on Gorsuch: 'Regulatory Overreach Is Killing Small Business' | MRCTV