U.S.A. – -(Ammoland.com)- “There is still hope,” attorney Stephen Stamboulieh advised the “small cadre” while sharing the judgment of the Fifth Circuit Court of Appeals in Cargill v. Garland, a case challenging the Bureau of Alcohol, Tobacco, Firearms and Explosive’s “bump stock” ban. The court found that such stocks are not machine guns and that the ban violated the Administrative Procedures Act. They remanded it to the district court.
This judgment differs from the Tenth Circuit’s ruling in Aposhian v. Barr, where that appeals court sided with ATF. Now that there’s a circuit split, the likelihood that the Supreme Court will resolve this is greatly increased. With a circuit split, the treatment of litigants will be different between jurisdictions.
What there’s “hope” for is our case since it consolidated with the Guedes case and ruled against in the United States District Court for the District of Columbia. The Supreme Court then declined to review the case, leaving it dead in the water unless something happened in another case — like the Fifth Circuit’s split from the Tenth.
The “small cadre” I referred to in the lede is a group of colleagues who have joined together in other legal actions designed to advance the right to keep and bear arms, particularly involving Freedom of Information Act requests and complaints if the recipient agencies are not responsive. It’s so designated because United States Attorneys filing an Opposition Motion for Attorneys Fees and Costs snottily attempted to trivialize, disparage and dismiss our efforts and smear our motives:
“In short, there is a tangled web of connections between a small cadre of firearms activists and their efforts to recover fees through largely unsuccessful FOIA litigation.”
Yeah, that’s why we do it. Nothing says “Get rich quick,” like attempting to recover costs that shouldn’t have had to be borne in the first place if the government was doing its job of “securing the Blessings of Liberty to ourselves and our posterity.” Founding intent and consent of the governed demand these arrogant … functionaries… should be defending our rights, not infringing on them and belittling those attempting a course correction – instead of circling the wagons and stonewalling to protect the powerful interests they’ve sold their loyalties to.
So what does the “small cadre” have to do with Cargill? The Fifth Circuit judges who ruled favorably were influenced by arguments formulated and advanced by two of its principals, firearms designer Len Savage and attorney Stamboulieh. They, along with many other legal observers, pointed out the inapplicability of Chevron deference (“the doctrine of judicial deference given to administrative actions”) and the applicability of the rule of lenity (“a principle used in criminal law, also called the rule of strict construction, stating that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant, or to construe the statute against the state”), and that ATF does not have authority to make laws.
They also offered two unique specifics the court picked up on.
From page 3 of Savage’s “Analysis and commentary regarding DOCKET NUMBER: ATF 2017R-22 & BUMP-STOCK-TYPE-DEVICES” (link will download file):
“The .22 rim fire cartridge made the real skill in the Akins Accelerator the tuning process involved in adjusting the operating spring that regulated his device. They were tricky to set up to work, (lots of trial and error), but once set up ran like a sewing machine.”
Now consider this section of the court’s opinion from page 51 of the above-linked Cargill judgment:
“Consider an automatic sewing machine. With a machine that sews automatically, you don’t just push a button—you also move the cloth forward with your hand.”
From page 6 of Savage’s analysis:
“THE SCOPE OF THE NPRM IS OVERLY BROAD DUE TO VAGUE LANGUAGE The NPRM has descriptive language that is so vague it could be describing hundreds of thousands of pump shotgun in the US, making each a potential machinegun. As there are several models of shotguns that operate precisely as stated on page (1) of the NPRM “firing without additional physical manipulation of the trigger by the shooter” (There were approximately 500,000 Model 37 pump shotguns made by Ithaca alone).”
From page 24 of the Court’s judgment:
“For example, the ATF’s treatment of the Ithaca Model 37 ‘slam fire’ shotgun confirms that bump stocks do not enable automatic fire. With the Model 37, a shooter can pull the trigger once and hold it. Then, after each pump with the shooter’s nontrigger hand, a new shell is loaded and immediately discharged. According to the ATF, the Model 37 fires multiple shots by a single function of the trigger, but it does not do so automatically because the shooter must manually pump the shotgun with his non-trigger hand.”
What this helps show is that submitting comments can make a difference because some judges will pay attention to them. It’s easy to conclude otherwise when agencies like ATF approach things with preordained conclusions that aren’t going to be swayed by anything the citizenry says, even if it’s clear the people are right, and the bureaucrats are dead wrong. But checks and balances aren’t yet completely irrelevant. The remarkable system established by the Founders hasn’t yet been completely eviscerated by the enemies of liberty.
It also shows that successful efforts are the result of many knowledgeable defenders adding their pieces to the whole and that just because one or more attempts hit a brick wall as our complaint did in the DC Circuit Court, it doesn’t mean continued pushing by parties that refuse to give up can’t bear fruit.
What remains to be seen is what the Supreme Court does with Cargill, especially noting that all they must do to let things stand is nothing. It’s difficult to see how they could allow such a split to remain, but we’ll just need to wait and find out.
And then regardless, to resolve not to give up, and to work as individuals, as members of our own “small cadres,” and as parts of the greater alliance of gun owners committed, as Patrick Henry urged at the Virginia Ratifying Convention, to “Guard with jealous attention the public liberty.”
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
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