Supreme Court To Deal With Bump Stocks?

BY Herschel Smith
6 months, 1 week ago


… two legal challenges to the Trump administration’s prohibition are pending at the Supreme Court – including one that has been rescheduled for consideration 20 times. The lack of a decision about whether or not the court will hear the litigation has led to speculation among experts who follow the issue closely that the court’s 6-3 conservative majority may not agree on how to proceed.

The court twice declined emergency requests from gun groups to delay implementation of the ban in 2019. And it declined to hear a similar challenge in 2020.

“The six conservatives on the court right now aren’t really on the same page about guns as much as people think they are,” said Dru Stevenson, a professor at South Texas College of Law Houston. Some in the court’s conservative wing, he said, “might be afraid to take the case if they’re not sure that they’re going to get their way.”

In addition to once again raising the issue of guns at the nation’s highest court months after it decided a landmark Second Amendment case, the new litigation also delves into how much power federal agencies have to create regulations when the law those rules are based on is unclear. Conservatives for years have sought to limit that agency discretion and their arguments seem to be gaining traction with the high court.

[ … ]

Feldman points to another reason why the Supreme Court may have been slow to take up the issue of bump stocks: So far, gun rights groups have been losing in appeals courts. The justices often like to see a disagreement in circuit courts – known as a “circuit split” – before wading in to resolve a dispute and provide guidance to lower courts on a thorny legal question.

“Right now,” Feldman said, “there is no circuit split.”

But that may soon change. In a separate case, the New Orleans-based U.S. Court of Appeals for the 5th Circuit has scheduled arguments in a challenge to the bump stock ban for Tuesday. Meanwhile, at least one of the justices has signaled a receptivity to the arguments being made by the gun rights groups.

The ATF, Associate Justice Neil Gorsuch wrote in 2020, “used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it.

“Why should courts,” Gorsuch asked, “defer to such bureaucratic pirouetting?”

Good question.  Here’s the answer.  They shouldn’t.

The bump stock decision was perhaps the worst mistake Trump ever made because of the precedent it set.  I don’t have a bump stock, but that isn’t the point.  The right to own one without interference from the FedGov is enshrined in the 2A.

But more importantly, with all due respect to Justice Gorsuch and his observation on pirouetting (which is correct since the ATF has taken contradictory positions on this as they have on many other things), this is about the question whether a bureaucratic organization has the authority and power to write law.

Here’s the answer.  They don’t.  Beyond that, even the ban on machine guns, I claim, runs afoul of the 2A.  So if the ATF had always taken the position that bump stocks met the definition of machine gun and they had never pirouetted on this issue, it still doesn’t make it right.  Pirouetting isn’t what makes this sinful.  It’s the failure to follow the constitution.

However, with the law and order justices, and also with the progressives, I doubt this issue will find traction in the SCOTUS and I have serious doubts they will overturn this ridiculous rule and put the ATF in its place.

So you see, if they don’t overturn it, the conservatives want to have their cake and eat it too.  On the one hand, they want to disgorge the authority of the bureaucrats from making law (de facto authority because they’ve done it unchallenged), but on the other hand, when it comes to bump stocks their Ox may be gored.  So they will find another route to do their disgorgement of the controllers if they ever do it all.

Will the Supreme Court finally deal the death blow to the bump stock ban?  Color me skeptical.


  1. On September 15, 2022 at 10:46 pm, Fred said:

    It’s not a machine gun, it’s just not. They made that up from nothing but their imagination.

    The problem with Republicans is they still see LE as viable to an orderly society. At what point a man realizes that the US government is operating outside it’s covenant, in lawless, in anarchy, I don’t know. I only know when I realized it. Anarchy is not the absence of government, it’s lawlessness, and America is there.

    Bump Stocks are a symbol of the whole. The very worst anarchy is when government operates according to whims. It’s destabilizing as nobody knows what bounds are fruitful for him conduct his affairs. One minute you can sell a thing, the next you can’t. One minute an item is legal, the next it isn’t. One minute you can build a certain property or business, and the next you can’t. How can a country thrive with ever moving goal posts? It’s destructive, the government is destructive to the good order of a thriving civilization. It’s everything; zoning, school curriculum, transportation, medical and medicine, on and on in every sector the government is destroying the country.

  2. On September 16, 2022 at 12:09 am, Georgiaboy61 said:

    @ Herschel Smith

    Re: “But more importantly, with all due respect to Justice Gorsuch and his observation on pirouetting (which is correct since the ATF has taken contradictory positions on this as they have on many other things), this is about the question whether a bureaucratic organization has the authority and power to write law.”

    You answered, “They don’t,” but alas it is not quite that simple, at least in reality.

    The existence of vast federal agencies of this kind, whether the ATF, EPA, DEA, FDA, IRS or what have you – testifies to the fact that a long time ago moved outside of the parameters for making law as set forth by the Founders.

    As originally designed, the legislative branch of government was charged with debating the merits of proposed laws, and voting whether or not to send them to the president for approval or veto, whereupon Congress could then decide whether to attempt to overturn a veto. And so forth.

    However, with the presidency of Woodrow Wilson, the managerial or administrative state was born in this country. Most economic & political historians date the first modern government bureaucracy to Bismarck’s Germany in the 1880s, but in the U.S., the first administration to really expand government’s size and reach were the presidents of the Progressive Era, Theodore Roosevelt and Woodrow Wilson.

    Roosevelt expanded the government somewhat, but it really took off under Wilson, thanks in part to the Great War (a conflict out of which he promised to keep the U.S., but promptly broke that pledge) but also to the new stream of revenue created by the federal income tax passed in 1913.

    The appeal of administrative agencies to the progressives dovetailed with their idea that ordinary people were not sufficiently-qualified to run a country as large and complex as the United States; only the managerial and professional elites were so-qualified.

    The appeal has a darker and more-cynical side, however: Federal legislators and others within the permanent bureaucracy of the U.S. quickly realized that if a dirty and unpopular job needed to be done, they could hand the “hot potato” – whatever it was – to a so-called “regulatory agency,” who would do whatever was necessary.

    Inevitably, cases came before the courts contesting the right of agencies to regulate activities such as commerce. The courts upheld the administrative power of the unelected people running these agencies by distorting and dramatically expanding the reach inter-state commerce clause. The courts also held that agencies could issue directives and edicts with “the force of law.”

    What did “the force of law” mean, precisely? Only time and case law, plus legal precedent would answer that query, but in the meantime, the federal government rested secure in the knowledge that its pockets were effectively bottomless concerning challenges in court. Why? Because unlike private citizens, their legal fees were paid by the taxpayers! Nice work if you can get it, right?

    In theory, only the national legislature can develop, propose and enact law, but in practice, regulatory agencies do it all the time when they create regulations, reams of red tape and blizzards of directives of one kind or another. They do this fairly secure in the knowledge that it will cost a lot of time, money and effort to legally contest anything they direct, hence challenges are likely to be small in number and unsuccessful.

    And in those instances where the courts find against the regulatory agency in question, they can simply reverse the directive and try again some other time when conditions are more favorable.

    The ugly little secret about agencies like the Bureau of Alcohol, Tobacco, Firearms and Explosives, is that they allow Congressmen and Senators to pull off a bit of politically-expedient deception: A given Congressman or Senator may favor gun control, for example, but live in a district where such is politically-unpopular. The BATFE allows firearm regulation to go forward, but since Congressman Smith’s fingerprints aren’t on their actions, he can look his constituents in the eye and smile, while saying he had nothing to do with it… and he can campaign as being in favor of the Second Amendment and win re-election again.

    See how that works? Slick little bit of misdirection, that!

    The deep-state doesn’t want ordinary Americans to possess firearms, but it is political kryptonite in many places to admit to this. What to do? The answer is to create a de facto attack dog to do your dirty deeds for you.

    Many a Representative and Senator has voiced apparently genuine outrage and sympathy at the latest bit of regulatory over-reach by the ATF, IRS, DEA, FDA, or IRS… but these protests are so much political theater and insincere posturing. How do we know this? That’s easy: After years of enduring such abuses and countless protests by the people to members of both houses of Congress, not one single agency has been put out of business.

    The hard fact of the matter is that the vast majority of people inside the beltway like the system and the status quo pretty much just the way they are.

    Res ipsa loquitur – “The thing speaks for itself”

  3. On September 16, 2022 at 5:57 am, Wes said:

    Had a feeling that EPA decision (West Virginia v. EPA) was going to have some downstream effect in this area. That SCOTUS decision popped an uncomfortable flare on the behavior of unaccountable agencies that live by administrative rule-making.

  4. On September 16, 2022 at 5:41 pm, X said:

    The bump stock ban is also a blatant violation of the Takings Clause of the Fifth Amendment which states that private property shall not be “taken for public use without just compensation.”

    Banning bump stocks deprives people of their previously lawfully owned property without compensation by executive fiat. Further this deprivation is not for “public use.”

    The ban also violates the Ex Post Facto Clause in Art. 1, Sec. 9, by retroactively outlawing the possession of what had previously been determined to be legal.

    This would be a pretty cut-and-dried case if the government courts actually followed the Constitution… but of course they don’t.

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This article is filed under the category(s) Gun Control and was published September 15th, 2022 by Herschel Smith.

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