U.S.A. – -(Ammoland.com)- An application to stay implementation and enforcement of the “bump stock” ban was filed Tuesday in the Supreme Court by attorneys for the appellants in the consolidated case of Guedes et al., v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. The request to Chief Justice John Roberts, as Circuit Justice for the United States Court of Appeals for the District of Columbia Circuit (who in March denied an emergency stay application), asks for a ruling “until the resolution of a forthcoming petition for writ of certiorari, and any subsequent proceedings, in this case.”
“Today’s application asks to put a hold on the agency’s Final Rule,” attorney Stephen Stamboulieh, one of the counsels for applicants, explained to AmmoLand Shooting Sports News. “Because the Circuit Court’s majority and the District Court both incorrectly relied on the Chevron doctrine, we believe the Supreme Court needs to weigh in and clarify whether the application of Chevron really applies to a criminal statute.
“We believe Judge Henderson [the dissenting Judge in the United States Court of Appeals for the District of Columbia Circuit — DC] reached the right conclusion that the ATF exceeded its statutory authority in expanding the definition of machinegun, and we are hopeful that the Supreme Court gives this case the attention it deserves,” Stamboulieh declared.
To clarify, as defined by Cornell Law School, “A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The U.S. Supreme Court uses certiorari to select most of the cases it hears.” Simply put, Tuesday’s application asks for a stay until a petition is filed with the Court and a decision to hear the case is rendered.
Likewise, many will be unfamiliar with the term “Chevron deference.” Again per Cornell, “the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question.”
As plaintiffs have argued, and as the application again points out:
“Despite the government expressly and repeatedly rejecting Chevron deference, and having never invoked such deference in the district court or the court of appeals, the court of appeals nonetheless determined that Chevron could not be waived, that it applied to the interpretation of the criminal statute in this case, that the statute was ambiguous, and that the government’s reading was an acceptable interpretation of the ambiguous statutory language.”
The insistence that “Chevron review does not apply to a statute/rule with criminal sanctions” comes from the opinion of DC Circuit Judge Karen LeCraft Henderson, in her dissension-in-part with the April 1 order [Also included as “Attachment A” in the above-linked application — DC].
“Like countless other Americans, I can think of little legitimate use for a bump stock,” Judge Henderson wrote. “That thought, however, has nothing to do with the legality of the Bump Stock Rule. For the reasons detailed supra, I believe the Bump Stock Rule expands the statutory definition of “machinegun” and is therefore ultra vires [beyond ATF’s legal power or authority — DC]. In my view, the plaintiffs are likely to succeed on the merits of their challenge and I would grant them preliminary injunctive relief.”
Henderson also showed the flaws in the rationale for changing the definition providing a unique argument.
“[A]wkward syntax does not equal ambiguity, as illustrated by the lost art of diagramming,” she wrote, and then provided the proof:
At this point, resubmitting the case to the DC Circuit for an en banc (full court) review remains an option, and the application was submitted to SCOTUS to continue the stay pending submission of a petition for writ of certiorari. If and when that happens, all the High Court need do to uphold the ban is…nothing. They can refuse to hear the case and not even give a reason why if they feel like it. On the other hand, they can agree to hear the case, at which point gun owners will find out if their optimism in a perceived 5-4 advantage has been justified.
- See key related filings and events at the Firearms Policy Collation website.
- Disclosure: Attorney Stamboulieh represents me in this and several other matters.
UPDATE: The Supreme Court has denied the latest stay application.
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.