On October 3, 2022, the Supreme Court denied a writ of certiorari to two promising bump stock cases, one in the Tenth Circuit, another in the Sixth Circuit. The appeals process for those two cases is finished.
Another bump stock case Cargill v. Garland, is in the Fifth Circuit, and may tip the balance.
The case is being considered en banc. It is a well argued and supported case.
The case was filed on March 25, 2019, originally titled as Cargill v. Barr.
In all three cases, the arguments are not about the Second Amendment. They are about the ability of bureaucrats to make law and the separation of powers between the legislative and executive branches of government.
In Cargill v. Garland, supported by the New Civil Liberties Alliance, the district court decided in favor of the government on November 23, 2020. The case was appealed to the Fifth Circuit, and a three judge panel upheld the district court.
A three judge panel issued an opinion on the case in the Fifth Circuit on December 14, 2022.
The three judge panel refused to consider either the separation of powers issues, or the Chevron doctrine, claiming they were irrelevant because the panel ruled bump stocks were machine guns.
The Fifth Circuit was asked to consider the case en banc, which is to say, before the entire court, by a member of the Court. A majority of the members of the Fifth Circuit agreed to hear the case, en banc.
The trend of the case follows the GOA case in the Sixth Circuit. The Sixth Circuit agreed to hear the bump stock case en banc. The Sixth Circuit split evenly, with 8 members voting to rule the bump stock regulation invalid, and eight member voting to rule for the government. In the case of a tie vote, the district court ruling was upheld. The GOA case was denied a writ of certiorari on October 3 of 2022.
The Cargill v. Garland oral arguments were heard by the Fifth Circuit, en banc, on September 13, 2022.
There is a good chance the Fifth Circuit will reverse the opinion of the district court. A majority of the Court agreed to hear the case, starting fresh, en banc. If the Fifth Circuit reverses the opinion and finds for Cargill, the case will create a split in the Circuits between the Tenth, the Sixth, and the Fifth circuits.
This gives the Supreme Court a strong incentive to hear the case.
There is an Owellian quality to the circumstances. For over a decade, the ATF assured Americans that "bump stocks" were *not* machineguns.
About half a million Americans purchased the devices on the assurance they were legal.
To reverse the longstanding interpretation of the law based on presidential preference smacks of the Orwellian imagery. In George Orwell's novel, 1984, history and legal reality were reversed at the whim of the ruling elite. "Oceania has always been at war with Eastasia", even though they were allies yesterday.
With the bump stock regulation, we are told:
bump stocks were always machine guns before the law, even though we were told they were not machine guns for over a decade.
How can a citizen make informed decisions, if the law can be changed by whim of the executive branch?
Opinion:
There is the issue of timing. The Supreme Court has made momentous decisions this term, attempting to restore the rule of law to the nation, away from the insanity of the Progressive notion of the Constitution as a "living document", which can be altered at any time by the judicial branch.
Concurrent is the notion the executive branch can change the law at the whim of unelected bureaucrats.
The justices may not want to tie such a significant change as restoring the separation of powers, as demanded by the Constitution, to a controversial issue such as guns.
Separation of powers cases are percolating through the courts. One of those may be settled at the Supreme Court before the Cargill case. Hat tip to (Mark W. Smith at the Four Boxes Diner.)
The mass of unconstitutional law in the United States is enormous. The Supreme Court justices are not fools. Declaring half of federal law unconstitutional, all at once, might provoke the left into open revolution.
It is better to proceed incrementally, as the infringements were put into place.
©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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3 comments:
My take on this case is Derived from the U.S. Constitution Article one section nine item three No Ex Post Facto laws shall be passed and ATF has no law making authority. They may constitutionally make any further manufacturing of bump stocks illegal but what was legal to buy when you bought it is always going to be legal. Government agencies have the authority to make rules and regulations for the employees of that agency you are required to follow to keep their job. You have to wear a three piece suit or you must wear a dress and so on but no agency had law making authority that is the separation of powers issue We have congress that makes federal laws and state legislatures that make state laws and a supreme court that determines what laws State or Federal are constitutional and only the words ratified in our constitution can be considered No opinions have ever been ratified. therefore opinions can not be considered. What the constitution means is exactly what was ratified and there is no room for opinions of what some one thinks it says. Read the minutes of the constitutional convention they argued over nearly every word written down in the ratified constitution the arguments were to get the exact word that is what they meant to say. Flat out, Shall Not be Infringed requires a constitutional amendment to be changed A little control cant hurt is an opinion and was or never has been ratified. Constitutional law has to be enforced as written Nothing other than the actual ratified words can be considered for a proper constitutional ruling, But liberal ass holes have been destroying our Constitution from the day it was ratified. Out lawing existing bump stocks is the very definition of what an ex post facto law is. Our constitution is continually being attacked and we better wake up and see to it that it is restored to full power. California's plan to out law gas powered vehicles is an example of an unconstitutional ex Post facto Law but California is full of liberal you know what's. Long ears are very appropriate for Californians. I refuse too deny any one an opinion every body has one about almost any thing. but there is no room in our constitution for even one opinion. It says what it says and means exactly what is written. I believe any one that strongly disagrees with our constitution is completely free to move to any other country they please. I once swore an oath to defend our constitution and have never rescinded that oath. This is a Constitutional Republic, Not a democracy.
Would nice to see the register re open thats closed for 36 years
Other points are more relevant (mostley remove sbs/sbr/aow and silencer from nfa) but would cool to have the register re open
best regard
If we are eve invaded, if we haven't been already. The national fire arms registry would be one of the first target for an enemy to want to get their hands on, then all the enemy has to do is walk around and collect the guns and shoot every one that is registered. Think about it, we only have 60 plus million non citizens in this country. too many idiots in this country think we are a democracy instead of a Constitutional Republic. Say the Pledge does it even mention democracy?
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