Court Strikes Down Trump’s Executive Order Banning Bump Stocks

P. Gardner Goldsmith | March 30, 2021
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As someone with any grasp of the Constitution might have expected, a three-judge panel of the Sixth Circuit Court of Appeals on March 25 by reversed a district court ruling in favor of President Trump’s 2018 Executive Order banning so-called “bump-stocks.” 

This 2-1 ruling against the ban, coming in the case of “Gun Owners of America Inc, et al, v Garland, et al” represents a huge victory for plaintiff Gun Owners of America – but it reveals something troubling.

The judges comprising the majority focused far too much on legalese and statutory detail while overlooking the obvious, fundamental rights and constitutional rules that should drive their jurisprudence.

In other words, even though this is a ruling that helps bump-stock owners in the short-term, it does nothing to support the fundamental right to keep and bear arms or challenge the faulty, dangerous idea that politicians can attack that right if they merely pass a statute.

As Jordan Davidson writes for The Federalist:

The Trump administration first issued the regulation in 2018 approximately a year after a shooter used bump stocks on his rifles to carry out a mass shooting at a country music festival in Las Vegas that left 58 people dead and hundreds injured. Bump stocks, federal officials argued, modified semi-automatic rifles enough to be classified as machine guns, which U.S. civilians are prohibited from owning without special federal permission, and required quick action from the Department of Justice to make it a felony offense to own or use one. Those who had bump stocks at the time the rule was issued were ordered to destroy or surrender the gun modifiers to ATF.

To be more specific, Trump’s Executive Order charged the ATF to consider a bump-stock to be a “machine gun,” thus making it “illegal” to own without special federal permission, per the blatantly unconstitutional 1934 National Firearms Act.

And, as one might guess, the judges of the Sixth Circuit spent a lot of time and a lot of page space focusing on the semantics of whether bump-stocks are “machine guns” and whether the “regulatory agency” of the ATF can ban them and threaten legal punishment without first having a new criminal statute written by Congress.

Amazingly, after many pages explaining their tiresome research into the obvious, the majority on the Sixth Circuit panel found that a bump-stock is NOT a machine gun, writing:

In sum, based on the text and context of § 5845(b), and further supported by the Supreme Court’s interpretation in Staples, we conclude that the phrase ‘the single function of the trigger’ refers to the mechanical process of the trigger, not the shooter’s pulling of the trigger. Consequently, a bump stock cannot be classified as a machine gun under § 5845(b). 

Thank goodness for their genius.

And they also cited legal precedents informing them that a regulatory agency simply can’t expand its purview and apply criminal penalties to transgressions which were not originally part of an agency’s statutory charge.

In part, they wrote:

Even when an agency implements the will of the public correctly, that determination may still violate the separation of powers.

But that overlooks a much more important point.

Rights are not supposed to be subject to “the will of the pubic” working through the polis. That’s why they are called rights.

And that’s why the Second Amendment explicitly prohibits ANY infringement on the right to keep and bear arms. 

Prohibiting something that can make one’s firearm function as one wishes is a clear infringement of one’s right to self-defense with a firearm, just as banning handguns would be, or banning certain kinds of rounds would be.

And the court’s lack of perspicacity, the judges’ evident laziness to get to the root of the matter, is extremely troublesome. Indeed, if the majority on the court are so concerned about the “separation of powers” that is laid out in the Constitution, why don’t they consider the rest of the Constitution and open their eyes to the fact that the ATF and all the federal, state, and local statutes that have attacked the right to keep and bear arms are clearly, obviously, infringements on the right to keep and bear arms that is supposedly protected by the US Constitution’s Second Amendment?

How much more obvious could it be that the judges are picking and choosing which portions of the Constitution they want to stress as untouchable?

Related: Powerful Truth: Americans Have NOT Complied with Federal Bump Stock 'Ban'

In fact, the “separation of powers” isn’t even a right. It’s just a functional concept that doesn’t go as deep as an in-born human right. In fact, DC has no power to ban peaceful trade of ANYTHING, let alone bump-stocks.

Now, to give the majority in the Sixth Circuit credit, they did rule on two aspects of the case that offer good reminders of at least a couple constitutional points. As The Federalist’s Davidson notes:

“The newest ruling out of the Sixth Circuit, however, grants the movant, Gun Owners of America, a preliminary injunction against the order, affirming the group’s concerns that the federal regulation violated the ‘Administrative Procedure Act, the Fifth Amendment’s takings clause, and the 14th Amendment’s right to due process.’”

The latter two are very important and valid points, points that many who argued against Trump’s ban made when he signed it in 2018.

Now that Donald Trump is out of office, and Joe Biden is in, the new administration likely will appeal this all the way to the Supreme Court.

And it’s likely that the majority on the court will rule as narrowly as the Sixth Circuit, not doing what is proper, not abiding by their oaths to protect and defend the US Constitution, and not striking down the 1934 National Firearms Act, as they should.

Meanwhile, more politicians will propose more statutes to crush the right to self-defense, and more law students will learn about precedents like this, in the grand tradition of lawyers and politicians who, on the whole, don’t show a moment’s care about the fundamental rights of man.

Related: Trump Announces Rule Banning Bump Stocks