Fight Against 'Bump Stock Ban' Reaches Fifth Circuit Court

P. Gardner Goldsmith | October 13, 2021
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Late last week the US Court of Appeals for the Fifth Circuit, covering most of Louisiana, Texas, and Mississippi, took up “Michael Cargill v. Garland, et al,” a case challenging the 2017 Trump-issued Executive Order prompting the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF, ATF) to list so-called “bump stocks” as “machine guns” and have them banned according to already-extant federal gun bans.

The “logic” behind the maneuver was that bump stocks allowed shooters to utilize recoil in such a way as to let them pull a trigger more rapidly, turning single-shot rifles into automatic rifles (aka “machine guns”), and that the 1934 Firearms Act already “banned” such auto guns.

As Natalia Mittelstadt notes for JustTheNews, a three-judge panel of the Sixth Circuit Court of Appeals already has heard the case, and the Biden Administration is using the panel’s opinion (which actually went AGAINST the bump stock ban) in this Fifth Circuit case:

Mark Stern, the Justice Department's legal counsel, argued that firearms with bump stocks work like machine guns. He noted that in a decision by a three-judge panel of the 6th Circuit Court of Appeals striking down the ATF rule, ‘there is no practical difference between a prototypical machine gun where you have to keep your pressure inward, and the bump stock, where you keep your pressure outward.’

Stern also asserted that the ATF's rule on banning bump stocks was the proper reading of the existing statute regarding what constitutes a machine gun, and that the agency had simply erred previously in being unclear on the definition of that type of firearm.

As noted, that three-judge panel of the Sixth Circuit found against the bump stock ban, but, as Mittlestadt reports:

The 6th Circuit Court has since vacated its decision against the government, pending an en banc hearing, when the entire court will hear and decide the case. 

The 10th and D.C. circuit courts have also decided cases involving the ATF bump stock rule, both in favor of the government.

In essence, this comes down to a question of how many unconstitutional angels can dance on the head of an unconstitutional pin.

Each of the courts and the litigants involved are not questioning the root of the issue. They are battling over whether or not the bump stock is a “machine gun” and whether or not a President can issue an Executive Order to make the ATF ban them without prior “legislative” – i.e. Congressional – action to pass a statute.

Which is like members of the mafia arguing over whether a victim can be robbed by a Thug A or Thug B and whether said victim’s property is given the title “booty” or “treasure.”

No one is addressing the root points, which are:

One. The Second Amendment already prohibits the feds and all governments from infringing on the God-given right to keep and bear arms, so any Executive Branch “regulation” or “ban” or legislative /Congressional move – be it the 1934 attack on rights, or Trump’s “bump stock” action – is patently unconstitutional. Period.

Two. The ATF is not sanctioned by any enumerated power in the Constitution. In fact, a general reading of the Second Amendment would prohibit its existence.

Three. As the ban on alcohol shows us, prohibition does not work. It merely gives criminals who are willing to flout the so-called “law” an advantage over peacefully minded people who are willing to abide by the “law.”

That last of which is analogous to the Constitution’s prohibition of gun restrictions, and the politicians who would breach that prohibition. The Constitution has not stopped them from breaching the Second Amendment, so why do these gun-banning politicians spout fantasies about prohibitions stopping "civilians"' with ill intent?

The politicians’ very actions tell us that written rules don’t stop those who want to flout the written rules.

Which is another reason why the Founders wanted people to be armed, so that they can resist those politicians who would infringe on their rights.

There are a few people on the government level who are fighting against the ban – a ban now being supported by the Bidenistas. As Mittelstadt notes:

NCLA (The New Civil Liberties Alliance – an individual rights defense group), which represented the plaintiff in the case decided by the 10th Circuit Court, has appealed the court's decision to the Supreme Court. A total of 20 state attorneys general have filed amici curiae, or ‘friend of the court,’ briefs on behalf of the NCLA's client, requesting that the Supreme Court hear the case.

And so it likely will go to the Supreme Court, regardless of what the Fifth Circuit or the other Circuit Courts rule.

Which means, as so often is the case, your rights will be in the hands of nine politically appointed people whom you have to pay, regardless of your own free will.

Isn’t it nice to be free?


Related: Rep. Jackson Lee’s Anti-2A Bill Would Create a Mandatory Federal Gun Registry...And Way More | MRCTV