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09/08/2020 05:12 AM | Chris Eger

Bump Stock Ruling Vacated, to be Reheard

A federal appeals court last week vacated an earlier decision that upheld the federal government's ban on bump stocks and granted a petition for a rehearing.

The U.S. 10th Circuit, based in Denver, Colorado, agreed to an en banc petition in the case of Utah gun rights advocate W. Clark Aposhian, backed by the nonprofit New Civil Liberties Alliance, which takes issue with how government regulators moved to outlaw the devices in 2018.

While a 2-1 panel of the same court previously upheld the ban in May by relying in part on what is referred to as the Chevron deference, which allows courts to default to agency interpretations of ambiguous statues, Judge Joel Carson III, a President Trump appointee, dissented at the time, describing the ban as an overreach, saying, “turning a blind eye to the government’s request and applying Chevron anyway—the majority placed an uninvited thumb on the scale in favor of the government."

Now, the full 12-judge court will rehear the challenge, with a special focus on if and how Chevron applies.

“The full Tenth Circuit has recognized the troubling consequences of the panel’s prior decision," said Caleb Kruckenberg, Litigation Counsel, NCLA. "Chevron deference cannot guarantee a win for an agency even when the parties agree it doesn’t apply, because it contradicts the constitutional rule that criminal laws should be construed against the government. We look forward to the Court setting a major precedent limiting Chevron’s unconstitutional reach."

The original lawsuit, filed in 2019 in a Salt Lake City U.S. District Court, challenged the proper role of administrative agencies– such as the Bureau of Alcohol, Tobacco, Firearms and Explosives– and whether their regulations may contradict a law passed by Congress, specifically the definition of a “machine gun” as set by lawmakers in 1934 and 1968. The case argued that ATF essentially rewrote the definition as set out by previous laws, something that was not in the agency’s power to do.

Between 2008 and 2017, the ATF had issued several classification decisions concluding that certain bump-stock-type devices were not machine guns.

Upwards of 500,000 bump stocks were sold with current possession of an unregistered device punishable by up to 10 years in federal prison for first-time offenders. Last October, a federal court held that the government had the power to take the property without compensation.





 
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A bit late for the manufacturer (Slide Fire).. they had to destroy over 60,000 units


That also devastated the economy of the town Slide Fire was located in.

Hopefully the ruling is overturned, people can own this accessory again and perhaps the company can recover.

Richard
 

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I wonder, when it does get overturned if Slidefire, and owners who surrendered, have a case for recovery of financial losses. And which pocket it would come out of (on paper, I mean. Of course it’s our money)
 

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I don’t see anything about a vacation, temporary or otherwise. I see an appeal for en banc.
So, I went to the source. This is directly from the 10th Circuit document order for the en banc hearing:

This matter is before us on Appellant’s Petition for Rehearing En Banc (“Petition”). We also have a response from Appellees, and Appellant has filed a motion for leave to file a reply in support of the Petition. As an initial matter, Appellant’s motion for leave to file a reply is DENIED as unnecessary.

The Petition and response were circulated to all non-recused active judges of the court. A poll was called, and a majority of the non-recused active judges voted to rehear this matter en banc. Accordingly, the Petition is GRANTED, the court’s May 7, 2020 judgment is VACATED, and this matter is REOPENED. See Fed. R. App. P. 35(a); see also 10th Cir. R. 35.6 (noting the effect of the grant of en banc rehearing is to vacate the judgment and to restore the case on the docket).
 

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Well that renews [slightly] my faith in other people/judges to want to hear the truth (or at least all the pertinent facts) Maybe there IS some hope for justice and liberty for all ??? 👋
 

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I wonder, when it does get overturned if Slidefire, and owners who surrendered, have a case for recovery of financial losses. And which pocket it would come out of (on paper, I mean. Of course it’s our money)
I wonder how many people will take up scuba diving to find those lost in boating accidents?
 
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I wonder how many people will take up scuba diving to find those lost in boating accidents?
I suppose it's possible that they will be able to put the same amount of time and effort into the diving expedition as they did on that original boating excursion....
 

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I will gladly fabricate a new one for my RPD. The semi RPD is fun, but when i had my bump stock for it, it felt almost as good as a full auto
 

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I feel the same way about my Franklin Armory binaries . $400 vs 20K is also a factor .
Chris
This is the real winner here. If the bumps had not been repealed, binary triggers most certainly would have been the next target.
 

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Already toast along with crank`s here because of Parkland by state law 😭 .
Exactly, and this is why the bump stock ban fails to protect things like binary triggers. Instead, it becomes the first test to see what else can be banned. The federal ban inspired a number of states to pass their own bans, but none of them stopped at the stocks. Almost without exceptions, those states banned cranks as well. Florida also killed the binary triggers, and I think they are not the only one. Only reversal of the bump stock bans can assure future legality of both cranks and binary triggers.
 

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Exactly, and this is why the bump stock ban fails to protect things like binary triggers. Instead, it becomes the first test to see what else can be banned. The federal ban inspired a number of states to pass their own bans, but none of them stopped at the stocks. Almost without exceptions, those states banned cranks as well. Florida also killed the binary triggers, and I think they are not the only one. Only reversal of the bump stock bans can assure future legality of both cranks and binary triggers.

Then they'll find another way to ban them. So long as there is a way, they'll find it...and it sticks till shot down. Worse comes to worse (from their perspective) they just pass another law which is good for four years of court delays, after it's shot down they do it again from a different angle.

The only real fix is for Trump to win and appoint another SCOTUS justice and let the "right" side fix the unconstitutional mess for once and all. In Heller, Scalia may have thought (or not) that the decision was clear and encompassing, but all it did (according to the courts, as has been demonstrated) is leave plenty of room for vague manipulation and interpretation. The Federalists argued that there was no need for a BoR because the Constitution was clear (LoL); the Anti-Federalists thought it best to spell it out "shall not be infringed" and sadly, ironically, and laughably the Anti-Federalists were FAR more correct than they knew. Scalia should have been smart enough to know this; whether his vague compilation of Heller was by design for a better day or intentional I can't say. But "somebody" (i.e., SCOTUS) needs to spell it out real clear or the Anti-Constitutionalists will win, and society loses.
 
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