Right on cue, and lawfully so, a firearms coalition has filed a federal lawsuit against the Trump administration’s unconstitutional bump stock ban, seeking an injunction against it. Attorneys for an owner of a “bump-stock” device and three constitutional rights advocacy organizations filed a federal lawsuit against the Trump Administration’s new confiscatory ban on firearm parts, additionally challenging Matthew Whitaker’s legal authority to serve as Acting Attorney General and issue rules without being nominated to the role and confirmed by the Senate or by operation of law.
A motion was filed on behalf of Damien Guedes of Whitehall, Pennsylvania by attorneys for Civil Rights Defense Firm. The motion was filed simultaneously with a complaint naming Guedes, Firearms Policy Coalition, Inc., Firearms Policy Foundation, and Madison Society Foundation, Inc. as plaintiffs.
According to the complaint charges that the “ATF’s abrupt about-face on this issue in promulgating and implementing the Final Rule to criminalize that which it had for years expressly deemed legal under the law of Congress inherently smacks of agency abuse or dereliction of duty in following the law.”
The plaintiffs allege that “ATF’s Final Rule is the product of serious, multi-dimensional legal violations rendering the process and the rule invalid, including, inter alia…”
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The complaint also claims that the rule violated Administrative Procedure “in numerous material ways,” “exceeds its statutory authority to promulgate regulations for purposes of implementing or enforcing the NFA or the GCA” and that implementation or enforcement of the rule “would violate the fundamental constitutional protections against retroactive imposition of criminal punishment under ex post facto principles.”
In addition to the complaint, a motion seeking an injunction against the ATF’s unconstitutional rule pointed out the following in basing the plaintiff’s likely success based on the merits below.
- Acting Attorney General Matthew Whitaker is an improper party to implement a new rule under the Administrative Procedures Act.
- Governing law applicable to the APA, GCA, and NFA
- ATF’s prior determinations
- ATF is barred from circumventing Congress to redefine a statutory term
- ATF’s violations of the Administrative Procedures Act in promulgating the final rule by
- Failure to provide underlying documents
- Failure to provide a 90 day comment period
- and the final regulation is arbitrary and capricious
- Plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief
- The balance of equities tips in the plaintiff’s favor
- An Injunction is in the public interest
- No bond or other security payment is required as a condition of relief
Indeed! However, to be fair, the ATF did ask for comments from the public about the bump stock ban.
There are a number of problems in all of this.
Second, the fact that it exists is why we are even having this conversation and since it does exist, it doesn’t even authorize this overreach by the unconstitutional ATF agency nor the Trump administration.
As I’ve pointed out, not only is Congress not authorized to write such legislation, but they certainly can’t write ex post facto laws. The executive branch is not given any authority to write “rules” regarding the law in our Constitution. This “rule” that the ATF is trying to impose is illegal and unlawful.
“The ATF has misled the public about bump-stock devices,” attorney Joshua Prince said. “Worse, they are actively attempting to make felons out of people who relied on their legal opinions to lawfully acquire and possess devices the government unilaterally, unconstitutionally, and improperly decided to reclassify as ‘machineguns’. We are optimistic that the court will act swiftly to protect the rights and property of Americans who own these devices, and once the matter has been fully briefed and considered by the court, that the regulation will be struck down permanently.”
The Firearms Policy Coalition writes:
In a January statement, Firearms Policy Coalition said that the federal “DOJ and BATFE clearly lack the statutory authority to re-define the targeted devices as ‘machineguns.’” Following that, in February, FPC also commented that as they “opposed the lawless manner in which President Obama often ruled by ‘pen-and-a-phone’ executive fiat,” they objected to and would fight “President Trump’s outrageous lawlessness here.”
“In its rulemaking, the Trump Administration is attempting to abuse the system, ignore the statutes passed by the Congress, and thumb its nose at the Constitution without regard to the liberty and property rights of Americans. That is unacceptable and dangerous,” explained Adam Kraut, an attorney for the plaintiffs. “It is beyond comprehension that the government would seek establish a precedent that it can arbitrarily redefine terms and subject thousands of people to serious criminal liability and the loss of property.”
Anyone who owns a “bump-stock” device and who would like to consider participating in the case should contact the FPC/FPF Legal Action Hotline at https://www.firearmspolicy.org/hotline or (855) 252-4510 (available 24/7/365) as soon as possible.
All of that is exactly right! Americans should be literally up in arms over this new rule. Sadly, too many have been controlled by the NRA, who while they have done a lot of good have also compromised quite a bit too, and other organizations that seem to be just fine with this violation of the law and the rights of the people regarding this issue. Now is not the time for complacency, but vigilance!
Article posted with permission from Guns In The News
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