Today we filed the opening brief on appeal in the Codrea bumpstock case

You can read the filing here. Essentially, we believe the district court made clear errors of law. The statement of the case is as follows:

This appeal is about an agency action in which a regulation was promulgated which seeks to dispossess hundreds of thousands of Americans from their private property. The ATF expressly acknowledges that “[b]etween 2008 and 2017, however, ATF also issued classification decisions concluding that other bump-stock-type devices were not machineguns . . . .” 83 Fed.Reg. 66514, 2018 WL 6738526 (Dec. 26, 2018). It is also undisputed that ordinary law-abiding individuals have spent, during that time period, millions of dollars of the purchase of such items in full reliance on repeated decisions of the ATF. Id. at 66543 (“This final rule is expected to have an impact of over $100 million in the first year of this regulatory action.”).

Yet, under the ATF’s new rule at issue here, if those Americans don’t surrender or destroy their heretofore legal private property, they will be prosecuted as felons. However, due to political pressure from an incident in Las Vegas at the Mandalay Bay and an instruction from President Trump to ban bump stocks, the ATF has taken an unambiguous congressional statute and has redefined plain text into something congress did not intend when it passed the National Firearms Act (“NFA”), just at ATF itself acknowledged during this time period. Worse, the district court sustained this agency action by applying the Chevron doctrine in direct contravention of controlling Supreme Court precedent that make plain that the Chevron doctrine has no place in the construction of criminal statutes.

Justice requires an injunction issue in this case. It requires such because the ATF has no authority to rewrite a congressional statute to fit the current agenda. Congress has expressly denied the ATF the authority to issue regulations with retroactive effect. “Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law.” Wis. Cent., Ltd. v. United States, 138 S.Ct. 2067, 2074 (2018). This is not merely a suggestion to the agencies, but a mandate from our highest court. While individuals may or may not like bump stocks, that “new social problem[ or] preference[]” is properly left to Congress to declare such and not an unelected agency which has stated over and over in the past that is has no authority to regulate bump stocks.

The case will be argued on March 22, 2019 in Washington, DC.

(Mobile Link: http://docs.wixstatic.com/ugd/c601ae_f98b2c031e134de19cde23c6581e9455.pdf


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