Another Trump-Appointed Judge Benchslaps the Trump Administration for Rewriting Federal Gun Laws

“The federal government forgot the Tenth Amendment and the structure of the Constitution itself.”


In response to 2017's mass shooting in Las Vegas, President Donald Trump vowed to use executive authority to ban bump stocks, a type of firearms accessory that the shooter reportedly used. The Justice Department soon delivered on Trump's promise with a new rule amending "the Bureau of Alcohol, Tobacco, Firearms and Explosives regulations to clarify that [bump-stock-type devices] are 'machineguns' as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968" because "such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger." In effect, the Trump administration rewrote federal gun law in order to achieve the president's preferred policy outcome.

That unilateral executive action has now come under blistering criticism from two federal judges appointed by Trump himself.

On March 2, Supreme Court Justice Neil Gorsuch issued a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The executive branch "used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite." Yet "the law hasn't changed, only an agency's interpretation of it," Gorsuch complained. "How, in all of this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"

Gorsuch just got some company. This week, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, issued an opinion in Lane v. United States that basically accused the Justice Department of ignoring basic principles of constitutional governance in its defense of the Trump administration's bump stock ban.

The Justice Department justified the ban as a lawful exercise of the federal police power, Judge Starr observed. But "the federal government forgot the Tenth Amendment and the structure of the Constitution itself," which grants no such power to the feds. "It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power," Starr wrote, he had no choice but to deny the government's motion to dismiss the case. He then tartly added: "The Court will allow the government to try again and explain which enumerated power justifies the federal regulation."

To say the least, Trump's bump stock ban is not off to a winning start in federal court.

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  1. was it off to a winning start anywhere? who said “yay”?

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    2. I’m happy that a judge appointed by Trump nullified an unconstitutional order of Trump’s. Seems to me he appointed a good judge there.

      Don’t libertarians want judges who support the Bill of Rights and not the edicts of whoever appointed them?

      1. I don’t think anyone is claiming otherwise.

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    4. All the dems who were chomping at the bit to pass sweeping anti-gun legislation and would have had the support to do so had the feds not been seen doing something. Funny then that what they did will fall apart when challenged leaving the net effect zero additional regulation.

  2. Well, I don’t think this will actually hurt Trump. He can say he did something but the courts stopped him, and he can point to those who say he only appoints yes men to the fact that the judge who rules against him is his appointee. Overall, I think the ruling is correct and Trump was wrong to have initiated the order in the first place.

    1. I mean, I kinda like the fact that Trump’s instating judges that aren’t afraid to tell him no rather than toeing the party line. Gorsuch especially has been great, can we get another dozen of him?

      1. “He can say he did something but the courts stopped him, and he can point to those who say he only appoints yes men to the fact that the judge who rules against him is his appointee”

        It’s win/win for Trump who could probably care less about bump stock bans and was just kicking the legs out of the DNCs cause du jour at the time.

      2. Yeah, I agree about that. The judges he appointed are doing exactly we wanted and hoped for: the impartial administration of justice, and interpretation of the law.

  3. Way to bury the lead! Judge references the 10th and you keep that tidbit to the very end???

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  4. Why is his hair not orange in that picture? He actually looks presidential here. Is it just a trick of the camera or is Trump trying to act a bit more like his age?

    1. You know that the pictures in a Reason article cannot be directly related to the story – – – – – –

    2. I’m not imagining it!

      I’m not going to buy into the theory that it’s just a crass political move, but if that is his natural hair color then he should keep it. And dispense with the fake tan too. Real gentlemen should strive to look real.

      1. Yeah I wouldn’t buy it either. Every president I have lived under has gone gray and/or shown visible signs of wear and tear from the job. Nothing new there, from Reagan to Trump, they all end up looking haggard.

        1. He’s aged a lot over the last month. Lot of responsibility, sitting in that chair. Probably not a lot of good news in his recent briefings either.

    3. Salon closed. Crisis and all…

      1. I liked the orange. It was fun.
        I hope he starts feasting on carrots to compensate.

    4. The news service forgot to adjust the color balance to turn Trump orange. He really is blond, with possibly an orangeish fake-tan skin color.

      Neither film nor digital photography is capable of accurately recording color given differences in lighting and background. When you get good color, it’s either from great luck, or more usually from an adjustment in post-processing. But to do that adjustment, the tech must know what the color is supposed to be for some areas of the picture, then he adjusts to get the expected color there. E.g., when Desilu studios produced the pilot for Star Trek (TOS), there was a scene where a green Orion slave girl tried to seduce Captain Pike. They slathered green make-up all over the actress, shot the scene, and sent it to processing. The rushes (quickly developed film for the director and producer to check) came back with a white girl. They caked on a thick layer of the darkest green make-up available and shot the scene again. The actress was still white in the rushes, and I suspect Pike was looking rather red or something. They finally realized that the lab did not know she was supposed to be green (and may have been ignoring any defined color samples in trying to get her “right”)… In the final cut, she is green and it’s hard to tell how Pike could resist.

      So if you get a clip of Trump from news cameras, and you send it to techs who think (inaccurately or maliciously) that his hair should be orange-tinted, you get orange-tinted hair. Then the next time, the techs start with their memory of that orange-tinted clip, and (being union members working in a severely left-tilting industry) likely increase the orange…

      1. Correction: He _was_ blonde. Given his age, he’s probably fully gray. If he is dying the little that is left, he certainly can afford to hire a competent hair dresser that can give it a natural-looking color!

        Now, I think the comb-over is accurately shown and is a reflection of his vanity. But how does that make him different than other politicians?

        1. True. The orange came from his skin from carrot pseudo-tan pills, not blond hair,

          Even the Trump Baby confirms this.

  5. 10th amendment my ass; what about the 2nd?

    1. Why not both?

      1. Why not add in there is no enumerated power to ban products or services.

        The federal government can only “regulate” interstate commerce. This is limited and does not give the power to ban only to some degree control commerce that travels interstate and internationally.

        1. Judge Starr did!, “He then tartly added: “The Court will allow the government to try again and explain which enumerated power justifies the federal regulation.””

          This is so awesome! Another reason why President Trump (while sometimes just-lately doing wildly disappointing things) still has excellent marks in my book. Appointing judges who ACTUALLY read the Constitution… 🙂

          1. +1000

            I think Trump to that pressure early on as President and didnt want to flipflop on the policy. Notice he didnt implement any other gun control nonsense even after massive political pressure with the more recent shootings.

            This was still a mistake of Trump. Luckily these judges fixed it.

        2. Founding fathers: We’ll give the federal government the power to regulate interstate trade to stop states from screwing each other over, thus benefitting the people.

          Modern politicians: It’s the power to do the opposite by federalizing the same economic interference it was intended to stop the states from doing!

    2. Because then they would have to question the NFA restrictions on machine guns and other restricted weapons.

      1. Which hopefully will be coming if Trump wins re-election and gets to replace Ginzburg.

      2. Oh for the days when you could walk into the local Western Auto and walk out ten minutes later with a Thompson Sub-Machine Gun and all the ammunition you could carry.
        Will you have that with a stick or drum magazine sir?

        1. Or just order it from the Sears Catalog.

  6. Yeah, I wouldn’t be shocked if this is pretty much what Trump wanted. He buckled to the pressure to “do something” perhaps well knowing (or being advised) that it would be on shaky ground anyway and likely overturned. Especially since previously these devices had been explicitly given the OK by the very same department that is now saying not only are they not OK going forward, but they never were and you need to destroy one if you have it or you’re a federal criminal. It was kind of the best thing he could do, politically- he “did something,” there was a decent chance it would get overturned anyway, it realistically affected a small minority of gun owners (even though all gun owners should be stridently opposed to the principle), and it probably resonated with the only non-hardcore Republicans that might matter to him (soccer moms and their beta husbands) since it was “closing a loophole that put machine guns in our kids’ schools!!!”

    1. If so, it’s a dangerous game. The confiscation had already been judicially sanctioned after at least one and possibly two previous major challenges to its constitutionality, and the “contraband” has long since been collected and destroyed without compensation (or their owners kept them and became felons). De facto, the damage is a done deal, and until this week, we thought it was a done deal de jure as well. Frankly, we don’t have the numbers, the principled judiciary it would take, to reasonably depend on this strategy.

  7. Look Neil, how are you gonna “judicial deference” if you keep thinking like that? Gorsuch has got a lot of learning to do.

    Bureaucrats rule and the judiciary enforces. It really is that simple…

  8. “The Court will allow the government to try again and explain which enumerated power justifies the federal regulation.”

    Love it. Need to look more into this Judge Star character but if this how rules normally, put him on the short list for RBG replacements.

  9. Good. Let this be a warning to all presidents who use their pen and phone.

  10. A word that I would like SCOTUS to use far more frequently when ruling on bureaucratic actions is “capricious”. Accompanied by a hard slapdown of the agency in question.

    1. Yeah, one supposes they can’t really say “bullshit”.

      1. Only in chambers. But the formal written ruling has to conform to some sort of norms of politeness.

        (Unless one is ruling on the use of the word)

  11. All gun control is unconstitutional.

    The bump stock ban was unconstitutional.

  12. This was an actual case of 5d chess. Trump does exactly what Ds want (violate 2A and limit civil liberties through executive fiat), judges tell him off. Comparing it to a recent discussion about coronavirus discourse among non-experts, the judges are the “experts” and the Ds are laypeople. Ds should accept that opposition isn’t just partisan; the experts disagree with their laws. This will force the Ds to abandon gun control entirely because they won’t be able to use the NRA boogeyman anymore.

    There has only ever been one way to constitutionally implement gun control; amend 2A.

    1. Technically even if there was not 2A the federal government still has no enumerated power to ban products or services.

      Arms are products in their basic form. You can build them, trade them, sell them, and buy them like any other product.

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  14. So, instead of ruling on a large Constitutional issue and at least partially reinstating the 10th Amendment and Article 1, Section 1, Judge Starr allowed the government to amend its argument so that those questions wouldn’t make it to the next level?

    1. He boxed them in by limiting their arguments to the Enumerated Powers.
      No interpretation of overreach as a reason to extend bureaucratic overreach even more.

  15. The judiciary system is working!!! Seems like its been 100-years, since FDR, the popular opinion court. This nation just might straighten itself back out again.. Freak-en awesome 🙂

    1. The Lefties want to pack the SCOTUS, so of course that shows that they are losing on the Constitutional jurisprudence front,

      1. Democracy is important. Until it isn’t.

        1. Right… I just as soon not even touch the word Democracy since the very definition of Republic contains democratically elected legislative representation held under the supreme law of the Constitution. No need to confuse the ignorant.

          The USA is not a democracy – It’s a Republic 🙂

  16. This is an issue that affects me personally.
    I had 2 bumpstocks and 3 bump triggers.
    I used them often for years.
    Then DJT turned my prized legally acquired property into felony level contraband.

    The state of Florida followed his example.
    I turned mine into the ATF Palm Beach office and joined the lawsuit against Florida.
    Our lawsuit was dismissed.
    This action was the straw that broke my back and I left the Republicans.
    I read Reason just for the intelligent, lively, and insulting comments.
    I just wish the Libertarian Party was a viable third party gun owners could join.
    It seems they are forever doomed to be irr

    1. Irrelevant

    2. “ I just wish the Libertarian Party was a viable third party gun owners could join.”

      Just how viable is voting for the same two parties over and over again expecting different results?

      How viable is voting for the lesser of two evils-and in the end, getting only evil?

      Every time you vote (D) or (R), you are sanctioning their actions. You are telling them-“yep, I love it. Keep doing what you’re doing”. Talk about throwing your vote away.

  17. There is NOT ONE SHRED of real evidence that even one bumpstock was actually used in the Las Vegas incident. Yes, some staged pics up in the “nest” showed a few sterile clean giuns that had bump stocks fitted to them. But FBI refused to allow BATF to examine any of the guns, or take any found projectiles or shell casings. It CERTAINLY did not allow for any ballistics tests to be made on any of the guns aledgedly used, and certainly not on any with bumpstocks.
    Thus the meme that that killer used bumpstocs is based on one statement made with NO corroborating evidence.

    Next, we have the EXECUTIVE branch making law… (interpreting law IS making it when the interpretation radically changes the status quo)

    THIRD, yes it seems true Trump told the ATF goons to “fix the bump stock” issue…. at which point BATF went to work to massage the language, predetermine the outcome, ignore ALL evidence (squeeze me, there WAS no “evidence” to ignore….) make the outcome they wanted, ignored all public comment, and effectively passed new law which violates the ex post facto prohibition of the US Consittitution .
    My sense of it from the git go is that Trump really did not care about the bump stock business….. he sort of wound up his minions and let them do as THEY pleased. Taking of property with no due process OR just compensation, illegal.
    Good to see some REAL judges slapping the FedGov boys around.

    1. It annoys me no end that even “winning” rulings like this one cite the use of bump stocks in LV as a “fact.” Surely this is a point that must have at least appeared tangentially in any brief against the ban, and the court must be aware of the complete lack of evidence for the claim. By citing the claim as fact in the ruling, it assumes the mantle of uncontested fact in later precedent.

    2. I’m not sure what you are trying to prove. Why in the world would BATF examine anything on the scene. It is a murder scene being handled by the FBI. If they wanted to refer something for BATF enforcement, they could… .but why would the?

      And what do you mean, “no evidence”? Do you really think the FBI can’t figure out what a bump stock is? Or do you doubt your own ears? The HnR discussion at the time was filled with folks who heard the cadence of the shots and said “that sounds like he’s using a bump stock!”

      And to what point? To prove that they should not have banned bump stocks?

      The whole argument seems absurd. You can get to “shouldn’t ban bump stocks” by simply referencing the text of the second amendment. You don’t need some weird conspiracy theory that leads nowhere.

      Besides, bump stocks are not exactly a tool for actual shooting. The fact that he used a bump stock may well have saved lives. He probably had a hard time hitting a target the size of a field from his perch above the crowds. (while using his rifle as intended probably could have yielded a 50% hit rate from that location).

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  20. They will use the commerce clause, most likely.

    1. Fine. Then I can only purchase bump stocks made within my state. End of discussion.

      1. Reread Wickund.

  21. You missed the real story Mr. Root, Every administration tries to push something too far and gets struck down by the courts. Different administrations have different agendas and get hit for different issues. On its face, that isn’t a story. The real story is that despite the howling from various quarters, Trump has appointed quality, independently minded jurists who are completely unafraid to rule against the Trump administration. This is nowhere more clear than with Gorsuch and Kavanaugh who have been on opposite sides of several issues.

  22. ATF is wrong (again). The bump stock does NOT initiate a continuous fire stream with a single pull. The finger pulls the trigger for each round fired, albeit with a mechanical advantage. What’s next, rubber bands and belt loops?

  23. benchslap… Im glad we’ve lowered the courts to the same status as the rest of politics. Entertainment for the lowest common denominator.

  24. Libertarians are gleeful, because our society will be so much better off with machine guns.

    buh FREEDUM!!!!

    1. … because obviously only criminals (who ignore laws) get to own machine guns. The rest of us should just call the police while getting shot and lynched by the mob.

      There’s a million in a half tools on this planet that can kill as fast as a machine gun. It’s not the tool – it’s the person. Taking away all the tools of good people will not stop the bad.

    2. The world will be much better off when lefty fucking ignoramuses like you fuck off and die.

  25. He boxed them in by limiting their arguments to the Enumerated Powers.
    No interpretation of overreach as a reason to extend bureaucratic overreach even more.

  26. Well, I don’t think this will actually hurt Trump. He can say he did something but the courts stopped him, and he can point to those who say he only appoints yes men to the fact that the judge who rules against him is his appointee. Overall, I think the ruling is correct and Trump was wrong to have initiated the order in the first place.

    1. Pimps get flagged, pimp

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