Jonathan Turley: Fifth Circuit Rejects Bump Stock Ban

From attorney Jonathan Turley comes this article on the Fifth Circuit Federal Appeals court rejecting the ATF ban on bump stocks.

The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun.

On December 18, 2018, the ATF issued a rule that bump stock would now be considered unlawful as machine guns and gave bump stock owners 90 days to surrender the devices. After that deadline, possession would be treated as a federal crime. The specific statement read, in part:

The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices — meaning “bump fire” stocks, slide-fire devices, and devices with certain similar characteristics — 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.

On January 6, 2023, the Fifth Circuit handed down its decision rejecting the rule. It explained the technical aspects for the case as well as the clear shift in interpretation by the ATF:

“A bump stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.”

Judge Jennifer Walker Elrod wrote in her majority opinion that “[p]ublic pressure to ban bump stocks was tremendous” after the mass shooting in Las Vegas on October 1, 2017. However, “[a] plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.”

The majority further explained:

The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.

The holding was supported by a rule of lenity that “penal laws are to be construed strictly.” She noted that, as in United States v. Wiltberger, the Court had long followed the rule which Chief Justice Marshall described as “founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”

Thirteen judges agreed with the conclusion though twelve (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reversed on lenity grounds while eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reversed on the ground that federal law unambiguously fails to cover non-mechanical bump stocks…(article continues)

The Hill: White House Yields to a National Rage Addiction

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, wrote an opinion piece for The Hill titled From court packing to leaking to doxing: White House yields to a national rage addiction. In the piece, Turley discusses Democrats’ continued bootlicking behavior toward the mob.

Nearly 70 years ago, a little-known lawyer named Joseph Welch famously confronted Sen. Joseph McCarthy (D-Wis.) in defense of a young man hounded over alleged un-American views. Welch told McCarthy that “I think I have never really gauged … your recklessness” before asking: “Have you no sense of decency, sir? At long last, have you left no sense of decency?”

It was a defining moment in American politics as Welch called out a politician who had abandoned any semblance of principle in the pursuit of political advantage. This week, the same scene played out in the White House with one striking difference: This was no Joseph Welch to be found.

After someone in the Supreme Court leaked a draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, a virtual flash-mob formed around the court and its members demanding retributive justice. This included renewed calls for court “packing,” as well as the potential targeting of individual justices at their homes. Like the leaking of the opinion itself, the doxing of justices and their families is being treated as fair game in our age of rage.

There is more than a license to this rage; there is an addiction to it. That was evident in March 2020 when Senate Majority Leader Chuck Schumer (D-N.Y.) stood in front of the Supreme Court to threaten Justices Neil Gorsuch and Brett Kavanaugh by name: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.” Schumer’s reckless rhetoric was celebrated, not condemned, by many on the left, even after he attempted to walk it back by stating that “I should not have used the words I used … they did not come out the way I intended to.”

What occurred at the White House this week is even more troubling. When asked for a response to the leaking of a justice’s draft opinion, White House press secretary Jen Psaki declined to condemn the leaker and said the real issue was the opinion itself. Then she was asked about the potential targeting of justices and their families at their homes, and whether that might be considered extreme. It should have been another easy question; few Americans would approve of such doxing, particularly since some of the justices have young children at home. Yet Psaki declared that “I don’t have an official U.S. government position on where people protest,” adding that “peaceful protest is not extreme.

In reality, not having an official position on doxing and harassing Supreme Court justices and their families is a policy.

Whether protests are judged to be extreme seems often to depend upon their underlying viewpoints. When Westboro Baptist Church activists protested at the funeral of Beau Biden, it was peaceful — but many critics rightly condemned the demonstration as extreme; some even approved of Westboro activists being physically assaulted. When the church brought its case before the Supreme Court, some of us supported its claims despite our vehement disagreement with their views, but 42 senators filed an amicus brief asking the court to deny free-speech protections for such protests. The court ultimately ruled 8-1 in favor of the church.

In this case, the Biden administration and the Justice Department have condemned the court’s leaked draft — but not the threatened protests at justices’ homes, even though those arguably could be treated as a crime. Under 18 U.S.C. 1507, it is a federal crime to protest near a residence occupied by a judge or jury with the intent to influence their decisions in pending cases, and this case remains pending. (Ironically, prosecution could be difficult if the protesters said they had no intent other than to vent anger.)

Even if protests at justices’ homes are constitutionally protected, that does not make them right, any more than the lawful Army-McCarthy hearings of 1954 were right.

In 1954, the left was targeted for its political views; today, it is the left which is calling for censorshipblacklisting and doxing. In such moments of reckless rage, presidents often have become calming voices, tempering extremist passions in their own parties. When they have failed to do so, history has judged them harshly, as in the case of President Eisenhower’s belated condemnation of Sen. McCarthy, something he reportedly regretted for the rest of his life.

President Biden has repeatedly shown that polls, not principles, guide his presidency. He showed integrity as a senator by denouncing court packing as a “bonehead … terrible, terrible” idea. However, he has stayed silent as today’s Democrats have pushed to pack the court with an instant liberal majority, a demand that increased this week. Biden long supported the Senate’s filibuster rule and said efforts to eliminate it would be “disastrous” — but when today’s mob formed, he flipped and denounced the filibuster as a “relic” of the Jim Crow era.

Even on abortion, Biden has shifted with the polls. He once opposed Roe v. Wade and supported an amendment that would negate the decision. At the time, he declared that “I don’t think that a woman has the sole right to say what should happen to her body.” Now President Biden has switched his position without really switching his logic. He recently declared that he supported Roe because “I’m just a child of God; I exist” and thus can decide what happens to his body. Accordingly, he denounced the Supreme Court’s draft opinion as “radical” and affirmed the right of a woman “to abort a child.

Whether it is court leaking, packing, doxing or other tactics, many Democratic politicians and pundits continue to follow the mob rather than risk its ire…(continues)

Jonathan Turley: Ron Paul Posts Criticism of Censorship on Social Media Shortly Before Facebook Blocks Him

Jonathan Turley reports Ron Paul Posts Criticism of Censorship on Social Media Shortly Before Facebook Blocks Him. The purge of conservative voices on the internet continues. The Oath Keepers organization has lost its website. NC Scout of Brushbeater and American Partisan had recently started a web forum and was kicked off by host ProBoards. Social media platform Parler was kicked off of Amazon Web Services.

We have been discussing the chilling crackdown on free speech that has been building for years in the United States. This effort has accelerated in the aftermath of the Capitol riot including the shutdown sites like Parler.  Now former Texas congressman Ron Paul, 85, has been blocked from using his Facebook page for unspecified violations of “community standards.” Paul’s last posting was linked to an article on the “shocking” increase of censorship on social media. Facebook then proceeded to block him under the same undefined “community standards” policy.

Paul, a libertarian leader and former presidential candidate, has been an outspoken critics of foreign wars and an advocate for civil liberties for decades.  He wrote:

“With no explanation other than ‘repeatedly going against our community standards,’ @Facebook has blocked me from managing my page. Never have we received notice of violating community standards in the past and nowhere is the offending post identified.”

His son is Sen. Rand Paul (R-Ky.) tweeted, “Facebook now considers advocating for liberty to be sedition. Where will it end?”

Even before the riot, Democrats were calling for blacklists and retaliation against anyone deemed to be “complicit” with the Trump Administration. We have been discussing the rising threats against Trump supporters, lawyers, and officials in recent weeks from Democratic members are calling for blacklists to the Lincoln Project leading a a national effort to harass and abuse any lawyers representing the Republican party or President Trump. Others are calling for banning those “complicit” from college campuses while still others are demanding a “Truth and Reconciliation Commission” to “hold Trump and his enablers accountable for the crimes they have committed.” Daily Beast editor-at-large Rick Wilson has added his own call for “humiliation,” “incarceration” and even ritualistic suicides for Trump supporters in an unhinged, vulgar column.

After the riots, the big tech companies moved to ban and block sites and individuals, including Parler which is the primary alternative to Twitter.  Also, a top Forbes editor Randall Lane warned any company that they will be investigated if they hire any former Trump officials.

The riots are being used as a license to rollback on free speech and retaliate against conservatives.  In the meantime, the silence of academics and many in the media is deafening. Many of those who have spoken for years about the dark period of McCarthyism and blacklisting are either supporting this censorship or remaining silent in the face of it. Now that conservatives are the targets, speech controls and blacklists appear understandable or even commendable.

The move against Paul, a long champion of free speech, shows how raw and comprehensive this crackdown has become. It shows how the threat to free speech has changed. It is like having a state media without state control. These companies are moving in unison but not necessarily with direct collusion. The riot was immediately taken as a green light to move against a huge variety of sites and individuals.  As we have seen in Europe, such censorship becomes an insatiable appetite for greater and greater speech control.  Even Germany’s Angela Merkel (who has a long history of anti-free speech actions) has criticized Twitter’s actions as inimical to free speech.  Yet, most law professors and media figures in the United States remain silent.