Thursday, a Tenth Circuit Court of Appeals judge issued a temporary restraining order blocking the ATF’s new rule that re-classifies bump stocks as machine guns. That ruling only applies to the plaintiff who filed that suit. Today, the DC Circuit Court of Appeals has done the same thing.

Like the Tenth Circuit’s ruling, this one only applies to plaintiff Damien Guedes who brought the suit along with the Firearms Policy Coalition. Their lawsuit challenging the bump stock ban was initially denied by a District Court, but a DC Circuit three-judge panel today has agreed to issue the stay.

The bump stock ban will go into effect as of March 26.

From the ruling . . .

It is

FURTHER ORDERED, on the court’s own motion, that the effective date of the Bump-Stock Rule, 83 Fed. Reg. 66514 (Dec. 26, 2018), be administratively stayed in its application only as to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending further order of this Court. The purpose of this stay is exclusively to give the Court sufficient opportunity to consider the disposition of this highly expedited appeal, and should not be construed in any way as a ruling on the merits of the appeal. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018).

You can read the full ruling here (PDF).

UPDATE:  Our friends at the Firearms Policy Coalition, which is a party to this lawsuit, noted some questions in the comments below and have sent these clarifications:

You have that backwards. FPC had their suit dismissed. The stay only applies to Codrea, Madison Society Foundation, and Florida Carry. It does not apply to Guedes or FPC.”

1) The FPC lawsuit was not dismissed. FPC dismissed its interlocutory appeal yesterday following oral arguments. (See attached motion. The oral argument audio recording is here [note that it’s about 2 hours long].) FPC plans to “to move to amend its Complaint to respond to the ratification in ways that are relevant to the Court’s eventual application of the voluntary cessation doctrine.” Then FPC can “secure a final judgment in the district court, and to then appeal from that judgment.” The FPF/Guedes claims will proceed [separately now] on their current litigation track.

2) The order of administrative stay is “to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending further order of this Court.” The named appellants in no. 19-5042 are: Firearms Policy Foundation, Shane Roden, Madison Society Foundation, Inc., Florida Carry, Inc., and, of course, Damien Guedes. See the operative complaint here and the appeal brief here. I’m not sure why the commenter would think the stay is limited to “Codrea, Madison Society Foundation, and Florida Carry” given the order’s text; Codrea is a plaintiff-appellant in no. 19-5044 (Codrea, et al. v. Barr, et al.), and, as noted, Florida Carry, Inc., and Madison Society Foundation, Inc., are plaintiffs-appellants in 19-5042 (Guedes, et al. v. BATFE, et al.).

Why is this only being applied to individuals and not as a whole?

The D.C. Circuit panel issued the order on its own motion (“FURTHER ORDERED, on the court’s own motion…” Order at 2.). Our requested relief was for all affected persons (not just the named parties). In light of the stay today we have asked the government if they would voluntarily move the deadline back for all people, recognizing that these issues are serious and that people should not be threatened with prosecution while the issues are still up in the air. Even if they decline, we hope to expand on this stay order to protect everyone affected before the deadline.

I’m curious *how* it can be ordered to be so-applied, also. What, are these two guys gonna end up with the only transferable bump stocks? Will the Hughes Amendment be clearly broken but only for them, despite the whole ‘equal protection under the law’ thing?

At this time we do not know if the subject devices will be “transferable bump stocks.” The order says [only] that “the effective date of the Bump-Stock Rule, 83 Fed. Reg. 66514 (Dec. 26, 2018), be administratively stayed in its application only as to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending further order of this Court. The purpose of this stay is exclusively to give the Court sufficient opportunity to consider the disposition of this highly expedited appeal, and should not be construed in any way as a ruling on the merits of the appeal.”

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27 COMMENTS

  2. You have that backwards. FPC had their suit dismissed. The stay only applies to Codrea, Madison Society Foundation, and Florida Carry.

    It does not apply to Guedes or FPC.

    “Following oral argument, the Firearms Policy Coalition, Inc. filed a voluntary motion to dismiss its appeal, or in the alternative to stay its appeal, and advised that the government opposes the motion to dismiss. In light of these representations, it is

    ORDERED that the motion of the Firearms Policy Coalition, Inc., to dismiss its appeal, No. 19-5043, be granted. Appeal No. 19-5043 is hereby dismissed. It is

    FURTHER ORDERED, on the court’s own motion, that the effective date of the Bump-Stock Rule, 83 Fed. Reg. 66514 (Dec. 26, 2018), be administratively stayed in its application only as to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending further order of this Court.”

    • There are a number of redundant attacks on the bump stock rule being waged; I’m going to wild-ass-guess as a layman that the stay granted mooted that other specific suit. Doesn’t mean they aren’t all working together on the case in every way but the letterhead & paycheck distribution. Legal semantics. The goal of all these actors at the present time is to obtain a stay ahead of the deadline when at least some portion of bump stocks will be permanently destroyed and the vast majority of the remainder cast into limbo pending the ultimate/inevitable court ruling.

  3. Firearms Policy Coalition, Adam Kraut’s group.

    Remember to vote for Adam Kraut (only) at the NRA convention this year (if you haven’t done so by mail already). This is his group’s accomplishment, despite the best efforts of the NRA to sacrifice bump stocks on the Fudd altar of gun banners.

    Seeing as the deadline is Tuesday, the rule applies federally to a half-million bump stock devices, destroyed stocks can’t be “un-destroyed” upon a future ruling, and there is still unquestioned precedent that makes it impossible to add new machine-guns to the NFRTR…one has to ask what exactly these judges think they’re doing by granting a stay to the plaintiffs alone. At the very least these stay’s should apply to their entire circuits’ jurisdiction. Best I can reason, they are granting a general stay but trying to appear that they are not so as to, what, avoid getting nasty tweets from Trump?

    • I’m curious *how* it can be ordered to be so-applied, also. What, are these two guys gonna end up with the only transferable bump stocks? Will the Hughes Amendment be clearly broken but only for them, despite the whole ‘equal protection under the law’ thing?

      The fact two judges have now done this suggests to me there must be some sort of legal shenanigan, but exactly what they’re hedging for I can’t say. Hopefully just trying to issue an effective ‘blanket’ stay without the appearance they are over-stepping their authority with a broad ruling.

      • Yeah, all I can figure is the judicial branch is completely out of control. I saw the headline a few days ago that a judge in Montana blocked oil drilling in Wyoming because of climate change.

        Umm, WTF? He has no authority to do that, there’s no law written that says before the federal gov’t leases land for natural resource mining that the impact of climate change must be investigated. All these activist judges that have been foisted upon us by Democratic presidents and rule with an iron gavel. The gavel may as well be a scythe today and every judge in a black robe as Death himself.

      • The (hughes amendment) of 1986; along with the (nfa act) of1934, the (gca) of 1968; and the [atf and fbi] are ALL UNCONSTITUTIONAL LAWS! Or organization! Do your research!!! Federalist #29 and #46. Most of all “THE DECLARATION OF INDEPENDENCE,” AND THE “CONSTITUTION OF THE UNITED STATES”

  5. Obviously these judges haven’t read the rules from the dudes in Hawaii, who seem to be able to issue injunctions that apply to the entire world…

  6. I’ve been out this afternoon getting my moneys worth with my slide fire on SW 15-22 having a blast. I wasted 30 minutes dragging out my canoe in the pond and having girlfriend make a video so when they ATF kicks in the door and shoots my dog, I can show it’s at least plausible I lost it in a boating accident.

    • Think of it as a test run for when the Progressives get enough votes to put in a ban on standard capacity magazines, semi-autos, etc.

    • So, you don’t care about the executive branch using the Chevron deference to rewrite law without Congress? Interesting!

      Get this in your head, this isn’t about the stupid bump stocks. What you witness here is precedent being created for banning anything that a President perceives needs to be banned by executive fiat.

      Applying the Chevron deference to the “ambiguity” of the terms “single function of the trigger” and “automatic” is the core issue in the bump stock cases, according to the government’s statements and the judges opinions. A prior decision in the Chevron v. Nat. Res. Def. Council case “permits an agency to reasonably define undefined statutory terms.” If this stands, the ATF can define that a certain magazine capacity creates an automatic firearm. It can even define every semi-automatic firearm to be an automatic firearm. No Congress needed!

      Thank you NRA and thank you President Trump for this mess!

      • A few on scotus are likely to toss chevron or greatly restrict it. It would be the pinacle of awesome if this case was won AND tossed chevron.

  8. We have got to wind up some press on this issue; hook the silly people on:

    – Orange man bad!

    – But, but guns bad; Ban All The Things!

    The legal machinery matters, and we want the final result. But, every event along the way is a chance to let them feel their dilemma. The issues, both, will become distasteful, and some of them will shy away. Folks who take a position to feel good about themselves are vulnerable to this.

  9. How are they going to re-classify a bump fire stock as being a fully automatic machine gun, when it still requires a trigger pull to fire each and every round, and then ban law abiding citizens from owning one and require the people that already own one to destroy it or turn it in to the government? This makes no sense when it is still very legal to possess, own and use a true, fully automatic or select fire machine gun by paying the BATFE $200 for a tax stamp and pass their background check. By them re-classifying a bump fire stock as being a machine gun and outlawing the possession of one because it is now a machine gun will also make it a crime to own or possess a true fully automatic or select fire machine gun. Where does that put all of the people that own or possess a true machine gun that requires a single trigger pull to continue firing rounds until you either let off the trigger or run out of ammunition? If it is illegal to own or possess a stock because it is now a machine gun, why is it still legal to own and possess a genuine machine gun? I believe this is going to open a huge can of worms when they tell the people to turn in or destroy their very, very $$expensive$$ full auto toys. If one machine gun is illegal then all machine guns are illegal aren’t they?

    • Dixie Shooter, you may want to read up on all the legalese behind the bump stock ban and the 1986 machine gun ban. In short, the ATF reclassified bump stocks to be machine guns. Since they were produced after the 1986 machine gun ban, bump stocks are effectively banned as they can not be added to the machine gun registry. That, however, has zero impact on the existing pre-1986 machine guns that are still legal to own with the proper registration paperwork.

      To formulate it differently, the ATF effectively declared that a bump stock is the same as a drop-in auto sear. If you have one that was manufactured before 1986 and was properly registered, you would be OK. However, no bump stock was manufactured before 1986 and was properly registered.

      As far as the “single function of the trigger” goes, that is the legal argument currently in the courts. The ATF says that “Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837” gives them the authority to rewrite the regulation what “automatic firearm” means without an act of Congress.

      • The chevron thing does not fly because it was the ATF that ruled three times that the bump stock is legal to own and not a machine gun!
        They cannot rule one way today and the opposite tomorrow depending on which way the wind is blowing!
        That happens in Monarchy’s and Dictatorships, not in a country with a Republic form of government and rule of law.

        • Actually, that’s exactly why the Chevron deference might fly. The Chevron deference deals with the problem of ambiguity in the law as passed by Congress. If a regulatory agency finds that ambiguity in the law leads to inconsistent decisions, then it can reinterpret the law in a way that it is less ambiguous by changing or inventing definitions. In other words, when Congress fucked up because they don’t know shit, then a regulatory agency can make up shit as it goes, all with the stamp of approval by SCOTUS. This is a gigantic shit show brought to you by President Trump and the NRA. From the regulation at https://www.govinfo.gov/content/pkg/FR-2018-12-26/pdf/2018-27763.pdf:

          “Congress thus implicitly left it to the Department to define ‘‘automatically’’ and ‘‘single function of the trigger’’ in the event those terms are ambiguous. See Chevron, 467 U.S. at 844. Courts have appropriately recognized that the Department has the authority to interpret elements of the definition of ‘‘machinegun’’ like ‘‘automatically’’ and ‘‘single function of the trigger.’”

  10. On a different subject in the same vein. I got a extremely painful disease and was denied any treatment because part of the treatment was pain medication. So while drug addicts shooting up illegal Fentanyl from China are given a safe haven and clean needles ( cant have criminals getting infections or diseases ) the GOV and CDC are saying prescription pain meds are banned so for 18 months this law abiding citizen with a job was allowed to become terminal.2 months later my mom was diagnosed with terminal stage 4 cancer but oncologist left out terminal and the fact that cancer is in lymph nodes so he could make easy money on my mom suffering from chemo.

    Thank you big GOV for taken my constitutional rights of life and liberty.

    When does the over reach stop? This is not the America I grew up in

  11. So what happens if I put a bump stock on a registered M16? Is it now twice a machine gun? Is the bump stock now legal because it’s on a registered gun?

    • No, the bump stock itself is considered a machine gun, just like a drop-in auto sear. If you have an unregistered drop-in auto sear and put it into a registered machine gun, you are still in possession of an unregistered drop-in auto sear, i.e., an unregistered machine gun. 1+1 != 1.

      • So one function gun (as defined by any reasonable person) can be two machineguns? I’m not a lawyer, I am also not an idiot. And that is idiotic.

        • The law, as written, defines a machine gun part to be a machine gun as well. Hence, a drop-in auto sear that can convert a semi-automatic firearm into an automatic firearm is a machine gun itself. Hence, a bump stock that supposedly converts a semi-automatic firearm into an automatic firearm is a machine gun itself. See https://www.law.cornell.edu/uscode/text/26/5845

          26 U.S. Code § 5845 (b) Machinegun

          The term “machinegun” means 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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

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