Here it is.

A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows: The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal. Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed, and this case is restored to the docket as a pending appeal.

Short and to the point.  This isn’t over yet.  It shouldn’t be.  It was an awful usurpation of power, and a stupid thing for Trump to do.

GOA.

Springfield, VA – Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court’s decision, which had denied GOA’s motion for a preliminary injunction on bump stocks. Gun Owners of America is seeking an injunction to prevent ATF from implementing a final rule incorrectly classifying bump stocks as machineguns under federal law.

This case was brought by Gun Owners of America (GOA), Gun Owners Foundation (GOF), the Virginia Citizens Defense League (VCDL), Matt Watkins, Tim Harmsen of the Military Arms Channel, and GOA’s Texas Director, Rachel Malone.

Dave Hardy has additional details.

“Notwithstanding the ATF’s frequent reversals on major policy issues, we understand that the Court would consider the bureaucrats at the ATF as experts in firearms technology. But that technical knowledge is inapposite to the question of what should be criminally punished and what should not.”

“Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns, we hold that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference. Consequently, the district court erred by finding that the ATF’s Final Rule, which interpreted the meaning of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron deference. And because we find that “single function of the trigger” refers to the mechanical process of the trigger, we further hold that a bump stock cannot be classified as a machine gun because a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled. Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits and that that their motion for an injunction should have been granted.”

Here is the ruling.  Occasionally a court gets it right.  One may suppose that the DoJ/ATF knew the weakness of using executive orders to supplant federal law.  Any case that has hinged on ownership of a bump stock should now be appealed.

News from Ohio.

The appellate judges upheld a Hamilton County trial court’s 2019 ruling against the ban, reasoning the bump-stocks — i.e. trigger activators — are essential to the function of at least some guns and therefore cannot be regulated without violating the U.S. and Ohio constitutions.

Congratulations to Buckeye Firearms Foundation and Ohioans for Concealed Carry.  We can all be thankful for small victories.

News from Texas.

The first case testing a Trump administration edict outlawing bump stocks failed during a brief federal bench trial in Tuesday in Houston.

A federal prosecutor withdrew the unique charge before the trial began for a Houston man accused of owning the device. However, the defense was prepared to call an ATF expert to testify that bump stocks, attachments that cause a rifle to fire more rapidly, do not render a semiautomatic gun a machine gun.

Senior U.S. District Judge Gray H. Miller convicted Ajay Dhingra, 44, on three remaining counts that he lied when he purchased a handgun, rifle and ammunition, and illegally possessed a weapon as a person who had been committed for mental illness.

Experts had conflicting views on the matter, said defense attorney Tom Berg. But Rick Vasquez, a retired ATF agent and firearms expert, would have told the court the bump stock did not meet the statutory definition of a machine gun. The prosecution dismissed case, he said, because the government couldn’t prove beyond a reasonable doubt the bump stock was a machine gun.

Prosecutors don’t indiscriminately drop cases.  They do it if they think they have a bad case and a non-trivial chance of losing, coupled with high consequences of a loss.

This continues a pattern of cases where the ATF feels that continued prosecution of a case could possibly cause a loss in court and a restriction of their ability to enforce other regulations.

It’s good to see this loss, as the bump stock ruling should never have even seen the light of day.

Reason.

The lawyers at the Department of Justice (DOJ) came up with a new Bureau of Alcohol, Tobacco, Firearms and Explosives regulation “to clarify that [bump stocks] are ‘machineguns’ as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968” because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” The federal ban on machine guns, in other words, would be interpreted by the Trump administration to ban bump stocks too.

That unilateral executive action has now come under fire from two federal judges appointed by Trump himself.

On March 2, Supreme Court Justice Neil Gorsuch issued a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The executive branch “used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite.” Yet “the law hasn’t changed, only an agency’s interpretation of it,” Gorsuch complained. “How, in all of this, can ordinary citizens be expected to keep up….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”

Gorsuch wasn’t alone. On March 30, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, issued a blistering opinion in Lane v. United States that basically accused the DOJ of ignoring foundational constitutional principles in its defense of Trump’s bump stock ban.

The Justice Department justified the ban as a lawful exercise of the “federal police power,” Starr observed. But “the federal government forgot the Tenth Amendment and the structure of the Constitution itself,” which grants no such power to the feds. “It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn’t abolish the states to take their police power,” Starr wrote, he had no choice but to deny the government’s motion to dismiss the case. He then tartly added: “The Court will allow the government to try again and explain which enumerated power justifies the federal regulation.”

Complaining isn’t the same thing as overturning and nullifying because it was, is, and always will be, unconstitutional.

Judges and justices using their opinions to bitch about things, even if that’s all the power they have if they’re aren’t in the majority, is extremely weak tea.

CNN.

Last year, the Bureau of Alcohol, Tobacco, Firearms and Explosives banned bump stock devices — attachments that essentially allow shooters to fire semiautomatic rifles continuously with one pull of the trigger.

A group of bump stock owners and Second Amendment groups sought to challenge how the administration went about banning the devices.

Justice Neil Gorsuch, who was appointed to the court by Trump, wrote a statement saying he agrees the current case should not be heard and that the court was correct not to intervene, but he was concerned with how the lower court handled the issue.

“Justice Gorsuch’s separate opinion isn’t about the merits of the bump stocks rule, but rather whether the lower court applied the correct standard of review in considering those merits. The court’s denial here suggests that the justices are willing to let lower court litigation over the controversial Trump administration rule run its course before deciding if — and how — to intervene,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

Here is what Gorsuch wrote.

The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

His was the dissenting opinion, the only “justice” who expressed any problems with it all.  And if the Supreme Court had heard the case and assigned it to Gorsuch to write the opinion, he could have spent less time declaring the whole thing unconstitutional.

Thus, the Supreme Court has no balls.

Len Savage received this document as part of his FOIA request.  He asks, “I wonder how many other members of Congress received similar letters?”

This congressman stood by mute while the ATF did an end run around the constitution concerning how laws are made.  Because overlords.  Because administrative state.

And note, Trump is as willing to use this administrative state to accomplish his ends as the democrats.

In order to prevent you from having to download a PDF, I’m showing this to you in JPEGs.

Guns.com.

A federal judge last week dismissed a claim from bump stock retailers who sued the government for damages they incurred after having to destroy their inventory.

The plaintiffs include two companies as well as two individuals who in all lost 74,995 bump stocks to the ban which took effect in March. The case, filed in a Washington, D.C. federal court, argued that the ban’s requirement that bump-stocks be surrendered or destroyed within 90 days, with no opportunity for registration, violated the Takings Clause of the Fifth Amendment which states that private property can’t be taken for public use without compensation.

The court didn’t see it that way.

“The law is different in this case because the government, as the sovereign, has the power to take property that is dangerous, diseased, or used in criminal activities without compensation,” said Senior Circuit Judge Loren A. Smith in his nine-page ruling. “Here, ATF acted properly within the confines of the limited federal police power.”

Smith, appointed to the federal bench in 1985 by President Ronald Reagan, said the $500,000 claim under the Tucker Act would be different “if the government confiscated a gun legally possessed by a person not committing a crime,” but argued that “machine guns,” which was how bump stocks were reclassified, are not protected by the Second Amendment.

First of all, machine guns, since they are used for military purposes, are absolutely protected by the second amendment.

Second,this is called “begging the question.”  I hate it when writers misuse the term “begging the question.”  It doesn’t mean that something necessarily brings up a question, as many writers assume.  It is a formal logical fallacy.  It’s circular reasoning, or proving the presupposition.  Bump stocks were declared machine guns.  Now that they have been declared machine guns, they can be regulated as such, so argues the judge.  That’s like declaring your skin to be green, and for proof reverting back to my declaration.

That’s not the issue.  The issue was and is whether the FedGov ever had the right to declare bump stocks to be machine guns in the first place, and then do they have the authority to take it without compensation.  So much for “judges.”  So much for Reagan.  So much for the constitution.

The constitution, which is merely a covenant, is unimportant to these people.  The FedGov can declare anything they want to be illegal, take it, and ignore appellations in court.  The constitution is a dead document.  The covenant has been broken.  It is null and void, like when a spouse cheats.

The Washington Times.

The federal government collected fewer than 1,000 bump stocks during the run-up to a new ban in March, despite estimates that hundreds of thousands of the devices that mimic machine gun fire are in circulation, according to federal data provided to The Washington Times by the Justice Department.

As the nation marked the second anniversary Oct. 1 of the Las Vegas massacre, which prodded the Trump administration to ban bump stocks, the numbers offer a cautionary tale on the scope and resources needed to enforce any sort of gun buyback program.

Between the issuance of the final rule banning the devices in December 2018 and April 4, 2019, shortly after the prohibition took effect in late March, 582 bump stocks were “abandoned” to the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to Justice Department records, and 98 bump stocks were kept as evidence.

The Times obtained the records through a Freedom of Information Act request.

The administration cited estimates that 280,000 to 520,000 bump-stock-type devices were in circulation when it published the final rule in December.

I’ve seen estimates as high as 550,000 in circulation, but we’ll take their number of 520,000.  That computes to 0.1119%.

What do you think will happen when the FedGov demands that citizens turn over $1000 rifles which have been bought with the intent of bequeathing to their children for personal defense?

Reddit/firearms.

I suspect this is the way it’s going to be for bump stock owners.  No one will come hunting for bump stocks, but if somebody commits a crime, the possession of a bump stock will add to the charges.

Well, I guess the DOJ is proud tonight.