10th Circuit Bump Stock Argument

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  • wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    Here is the oral argument that was had today

    Link to argument here.
    https://www.ca10.uscourts.gov/oralarguments/19/19-4036.MP3


    https://www.courthousenews.com/gun-enthusiast-lobbies-10th-circuit-to-block-bump-stock-ban/
    DENVER (CN) – Machine guns are prohibited under federal law. But what about bump stocks, a plastic accessory that can make a perfectly legal semi-automatic weapon behave like a machine gun?


    A bump stock is attached to a semiautomatic rifle at the Gun Vault store and shooting range on Oct. 4, 2017, in South Jordan, Utah. (AP Photo/Rick Bowmer)
    One Utah man is challenging the bump stock ban enacted by the Bureau of Alcohol Tobacco Firearms and Explosives, which falls under the U.S. Department of Justice, arguing it takes an act of Congress to ban bump stocks, not a bureaucratic agency.

    In the elaborate wood paneled courtroom on the second floor of the Byron White Courthouse in downtown Denver, W. Clark Aposhian asked a panel of federal appeals judges Wednesday to allow him to keep his bump stocks while he challenges the ban adopted by the ATF.

    Chairman of the Utah Shooting Sports Council, Aposhian sued the bureau in January 2019 after the Trump administration instituted a rule change that categorizes bump stocks as machine guns. The move effectively banned people from owning them.

    The rule change came in response to the 2017 massacre at a country music festival in Las Vegas, where a man killed 58 people and injured hundreds more using a bump stock device.

    But it was a pivot from previous policy which distinguished bump stocks from machine guns. According to attorney Caleb Kruckenberg with the DC-based law firm New Civil Liberties Alliance, who represents Aposhian, the agency had it right the first time.

    “The ATF was correct when it found it did not have the authority to enact such a ban. The ATF has recognized it has no substantive rulemaking power,” Kruckenberg argued. “There is no ambiguity. The statute makes it clear the difference between a machine gun and a non-machine gun is manipulation of the trigger.”

    Kruckenberg argued human hands are needed to keep a bump stock-equipped gun firing, which means it is regulated under the existing automatic weapon ban.

    Both parties agree the law is clear but read it quite differently.

    “If someone is going to be criminally prosecuted, it’s under the statute not the regulation,” countered U.S. Attorney U.S. Attorney Brad Hinshelwood.

    U.S. Circuit Judge Mary Beck Briscoe pushed back.

    “The ambiguity issue is lurking. I’m not clear what automatic means,” the Bill Clinton appointee said. “I’ll give you a shot [to define it], no pun intended.”

    Hinshelwood explained a device qualifies as a machine gun if a single function of the trigger leads to continuing fire.

    “There are all manners of creative devices people use to try to skirt around the statute’s meaning of machine gun,” Hinshelwood added.

    U.S. Circuit Judge Joel Carson III, appointed by President Donald Trump, pressed this point.

    “What if I don’t have a bump stock, but I have a gun that I can pull the trigger on 300 times in a minute?” Carson asked.

    “Then it’s not a machine gun,” Hinshelwood said. “You won’t turn yourself into a machine gun. The point is once the shooter sets the conditions and pulls the trigger, [with a bump stock] the weapon continues to fire.”

    Carson continued to run through the possibilities.

    “My definition of a machine gun may differ from the statutory definition,” Carson said, his chin on his hands. “I see a bump stock and it looks like a machine gun, but I’m having issues squaring the language.”

    Aposhian purchased his Slide Fire device in 2014, described in his appeal as a “hollow shoulder stock intended to be installed over the rear of an AR-15” and “intended to assist persons whose hands have limited mobility to ‘bump-fire’ an AR-15 type rifle.”

    Under the ATF’s ban, anyone caught in possession of a bump stock can face criminal charges and up to a decade in prison.

    U.S. Circuit Judge Nancy Moritz, a Barack Obama appointee, rounded out the panel. The judges did not indicate whether they will allow Aposhian to hold onto his bump stock while the U.S. District of Utah considers the rest of the case.
     

    srephwed

    Active Member
    Jul 25, 2010
    379
    harford county
    All I know is that I bought a piece of plastic that was very expensive but also very enjoyable and now my elected officials have decided it is no longer legal to own and I should consider my money flushed down the toilet. God help us if Trump does not get a second term. I know he also was against bumpstocks but maybe the courts will prevail.
     

    bkuether

    Judge not this race .....
    Jan 18, 2012
    6,212
    Marriottsville, MD
    All I know is that I bought a piece of plastic that was very expensive but also very enjoyable and now my elected officials have decided it is no longer legal to own and I should consider my money flushed down the toilet. God help us if Trump does not get a second term. I know he also was against bumpstocks but maybe the courts will prevail.

    If Trump doesn't get re-elected, I think a lot of folks will be putting their bump stocks "back on".
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,365
    SoMD / West PA
    Good news!

    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).

    Although this entire case will be reheard en banc, the parties shall specifically address the following question in supplemental memorandum briefs:

    1. Did the Supreme Court intend for the Chevron framework to operate as a
    standard of review, a tool of statutory interpretation, or an analytical framework that
    applies where a government agency has interpreted an ambiguous statute?

    2. Does Chevron step-two deference depend on one or both parties invoking
    it, i.e., can it be waived; and, if it must be invoked by one or both parties in order for the
    court to apply it, did either party adequately do so here?

    3. Is Chevron step-two deference applicable where the government interprets
    a statute that imposes both civil and criminal penalties?

    4. Can a party concede the irreparability of a harm; and, if so, must this court
    honor that stipulation?

    5. Is the bump stock policy determination made by the Bureau of Alcohol,
    Tobacco and Firearms peculiarly dependent upon facts within the congressionally vested
    expertise of that agency?


    https://www.courthousenews.com/wp-content/uploads/2020/09/BumpStockEnBanc-10CA.pdf
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Oh boy!!! This is going to be one heck of a war of words in the courtroom....

    If it goes like the DC circuit, it is going to be horrible. They are going to talk about a lot of irrelevant things and ignore the real issue. Is the process automatic or self sustaining? It was so poorly argued that the DCCA thinks one long trigger pull is more than one action. It seems pretty clear that a bump stock is not self sustaining because it requires the operator to perform an additional non trigger action (push the firearm forward) which then causes the trigger to reset and an additional trigger pull to continue firing additional shots.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    If it goes like the DC circuit, it is going to be horrible. They are going to talk about a lot of irrelevant things and ignore the real issue. Is the process automatic or self sustaining? It was so poorly argued that the DCCA thinks one long trigger pull is more than one action. It seems pretty clear that a bump stock is not self sustaining because it requires the operator to perform an additional non trigger action (push the firearm forward) which then causes the trigger to reset and an additional trigger pull to continue firing additional shots.

    I'll go back a read the arguments, & will agree with you.

    Now that I "think" I know a little more than average about judical deference! There are are a number of case about judical deference.

    One comes from Turner or Turner II, seems to me about the same thing.

    And.
    2. Does Chevron step-two deference depend on one or both parties invoking
    it, i.e., can it be waived; and, if it must be invoked by one or both parties in order for the
    court to apply it, did either party adequately do so here?

    So, What does deference really mean in this case? Does is matter if the court apply's Turner or Chevron two step deference?

    Marbury v. Madison that "it is emphatically the province and duty of the judicial department …

    I'm somewhat confused on the judicial deference! Please explain simply if you can. thank You.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I'll go back a read the arguments, & will agree with you.

    Now that I "think" I know a little more than average about judical deference! There are are a number of case about judical deference.

    One comes from Turner or Turner II, seems to me about the same thing.

    And.


    So, What does deference really mean in this case? Does is matter if the court apply's Turner or Chevron two step deference?

    Marbury v. Madison that "it is emphatically the province and duty of the judicial department …

    I'm somewhat confused on the judicial deference! Please explain simply if you can. thank You.

    https://en.wikipedia.org/wiki/Judicial_deference

    https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.

    Turner dealt with legislative deference. Chevron is about agency deference. The agency in this case is BATFE.

    The Chevron test is
    First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Here is another description of deference

    Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if as an original matter, a court might find contrary views more persuasive."). Therefore, even if a so-called "expert" conclusion would contradict the agency's expert's conclusions, this Court can give it no force. Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992).
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    https://en.wikipedia.org/wiki/Judicial_deference

    https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.

    Turner dealt with legislative deference. Chevron is about agency deference. The agency in this case is BATFE.

    The Chevron test is

    But how should a court handle deference where an agency's determination has changed suddenly and diametrically without a change to either fact or law? Which agency opinion should be given deference, and why?

    Issues like the change in ATF's finding on bump stock legality impugn the foundation of Chevron Deference, the supposed superiority of expertise within Executive Branch agencies.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Here is another description of deference

    Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if as an original matter, a court might find contrary views more persuasive."). Therefore, even if a so-called "expert" conclusion would contradict the agency's expert's conclusions, this Court can give it no force. Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992).

    Here’s another:

    Politicians give the bureaucrats power and judges bow to that power. Doubleplusgood.*

    Yea!

    Regards
    Jack

    *Newspeak, the language of bureaucrats and politicians, regarded as deliberately ambiguous and misleading. [From Newspeak, , a language invented by George Orwell in the novel 1984.] https://www.thefreedictionary.com/Doubleplusgood
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    But how should a court handle deference where an agency's determination has changed suddenly and diametrically without a change to either fact or law? Which agency opinion should be given deference, and why?

    Issues like the change in ATF's finding on bump stock legality impugn the foundation of Chevron Deference, the supposed superiority of expertise within Executive Branch agencies.

    This case is all about the record that was developed. See https://www.federalregister.gov/documents/2018/12/26/2018-27763/bump-stock-type-devices

    According to this record, the law itself was not changed. The record indicates that ATF clarified the meaning of two terms in the law and that led to the determination that bump-stock-type devices are now considered machine guns under the law.

    The job of the lawyer is to demonstrate, using the record, why the ATF clarification is not reasonable. You cannot just explain why your interpretation is reasonable.

    The record appears to read just like the subsequent cases that were filed and most 2A cases for that matter. The plaintiffs present one side of the issue. The government presents a different side of the issue. The government wins because the plaintiffs fail to demonstrate that the governments position is unreasonable.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    By appointments, the 10th is 7 D, 5 R for active judges...

    It's hard to tell what you end up getting as far as the 3 judge panel. Depending on the circuit you could end up having 2 senior judges or 2 district court fill ins as part of the panel, although I see those typically more in the 9th circuit than other circuits.
     

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