Monday, April 1, 2019

DC Circuit's April Fools Joke On The Constitution

The US Court of Appeals for the District of Columbia released its decision in the combined cases of Guedes et al v. BATFE et al and Codrea et al v. Barr. It was a per curiam decision with Judge Karen Henderson dissenting in part and concurring in part. The court sided with the District Court in denying the preliminary injunction of the bump stock rule.

PER CURIAM : In October 2017, a lone gunman armed with bump-stock-enhanced semiautomatic weapons murdered 58 people and wounded hundreds more in a mass shooting at a concert in Las Vegas, Nevada. In the wake of that tragedy, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“Bureau”) promulgated through formal notice-and-comment proceedings a rule that classifies bump-stock devices as machine guns under the National Firearms Act, 26 U.S.C. §§ 5801–5872. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (“Bump-Stock Rule”). The then- Acting Attorney General Matthew Whitaker initially signed the final Bump-Stock Rule, and Attorney General William Barr independently ratified it shortly after taking office. Bump- stock owners and advocates filed separate lawsuits in the United States District Court for the District of Columbia to prevent the Rule from taking effect. The district court denied the plaintiffs’ motions for a preliminary injunction to halt the Rule’s effective date. Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives , 356 F. Supp. 3d 109 (D.D.C. 2019). We affirm the denial of preliminary injunctive relief.
 The case was heard by Judges Karen Henderson, Sri Srinivasan, and Patricia Millett. Srinivasan and Millett were appointed to the Court of Appeals by former President Obama while Judge Henderson by President George H. W. Bush.

In reaching their decision, the court found that BATFE was entitled to Chevron deference and that the plaintiffs were unlikely to succeed in their case as a result.

Judge Henderson parted company with her colleagues and said that the bump stock rule does contradict the statutory definition of a machine gun. As such, she would have granted the injunction.
She examined the history of the National Firearms Act, rulings of BATFE, the previous rulings that the bump stock was NOT a machine gun, the slow motion video evidence submitted to the District Court, and the affidavit of Richard Vasquez who had done the technical evaluation of the bump stock.

She concluded:
If the focus is —as it must be—on the trigger, a bump stock does not qualify as a “machinegun.” A semiautomatic rifle shoots a single round per pull of the trigger and the bump stock changes only how the pull is accomplished. Without a bump stock , the shooter pull s the trigger with his finger for each shot. With a bump stock, however, the shooter —after the initial pull —maintains backward pressure on the trigger and puts forward pressure on the barrel with his non- shooting hand; these manual inputs cause the rifle to slide and result in the shooter’s stationary finger pulling the trigger. Bump -Stock - Type Devices , 83 Fed. Reg. at 66,533 (“The constant forward pressure with the non- trigger hand pushes the firearm forward, again pulling the firearm forward, engaging the trigger, and firing a second round.”). T he bump stock therefore affects whether the shooter pull s his trigger finger or keep s it stationary . It does not change the movement of the trigger itself , which “ must be released, reset, and fully pulled rearward before [a] subsequent round can be fired.” Verified Declaration of Richard (Rick) Vasquez, former Acting Chief of the Firearms Tech . Branch of ATF, at 3–4.

Like countless other Americans, I can think of little legitimate use for a bump stock. That thought , however , has nothing to do with the legality of the Bump Stock Rule. For the reason s detailed supra , I believe the Bump Stock Rule expands the statutory definition of “machinegun” and is therefore ultra vires . In my view, the plaintiffs are likely to succeed on the merits of their challenge and I would grant them preliminary injunctive relief.

Accordingly, I respectfully dissent


  1. There are many arguments against the bump stock ruling, and Judge Henderson almost opens that door but doesn't specifically say that the next step is that it outlaws every semiautomatic gun ever made because the commercial bump stock is just a "circus trick" to make it easier to do that with less practice.

    The majority said, a lone gunman armed with bump-stock-enhanced semiautomatic weapons murdered 58 people and while it is reasonable to assume they may have seen things that haven't been publicly released, AFAICT nobody actually knows which weapon was (or weapons were) actually used, so that nobody knows if he used a bump stock or not.

    He may have used bump stocks and he may not have. The bigger point there is that one crime in the history of the world used a bump stock and for this we force everyone onto the slippery slope that they can outlaw any gun at any time simply because it was used in one crime. That's a pretty low threshold.

  2. Still waiting for the classification of rubber bands and finger exercisers as machine guns. I know they'll say "that will never happen" but then they say that about a lot of things. Hopefully this will get overturned at a higher level but I am doubtful. Most judges know little to nothing about firearms. Why would they, living in or around Washington, D.C.