Gunowner Challenges Bump Stock Ban by Acting Attorney General Matthew Whitaker

The plaintiff argued that his property was outlawed by a government official without the authority to do so. 

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)

WASHINGTON (CN) — Fourth Circuit judges are considering whether a lawsuit brought against an acting U.S. attorney general has grounds for a preliminary injunction. 

The defendant, former Acting U.S. Attorney General Matthew Whitaker, took up the post after Jeff Sessions resigned in 2018.  

That December, he issued a memorandum announcing that bump stocks — gun stocks that enable semiautomatic rifles to fire faster rounds — fell within the definition of a “machine gun,” under federal law, meaning gun owners must get rid of their bump stocks within the 90 days since the final rule was issued. Attorney General William Barr then ratified the final rule once he took office. 

Daniel Patrick is one such bump stock owner. In early 2019, the North Carolina resident filed a lawsuit against Whitaker, alleging that the attorney general violated the Federal Vacancies Reform Act and, therefore, didn’t have the authority to issue a final rule. 

During Wednesday’s oral arguments, his attorney, Daniel Woofter of Goldstein and Russell, P.C., challenged the final rule, claiming that it “unconstitutionally and unlawfully” caused Patrick harm by depriving him of the bump stock. 

“Mr. Whitaker was not constitutionally or statutorily authorized to issue the final rule on December, 18, 2018,” Woofter said. 

He presented his argument to Circuit Judges Julius Richardson, a Trump appointee, and Robert King, a Clinton appointee. 

Since Barr concretized the rule as a political appointee, Judge Richardson wondered whether there were any grounds for the suit at all. He noted that the plaintiff didn’t appear to be challenging the ratification, and that they seem to be accepting that it “cured the problem.”  

To this, Woofter clarified that he was simply reading the complaint in a way that’s “most favorable” to them, and that Patrick still intended on challenging Barr’s ratifications as well. 

Judge Richardson wasn’t convinced. “If we disagree with you regarding the attorney general’s action’s validity,” he asked, “in other words, if we hold that Attorney General Barr acted in a valid manner in ratifying the rule, is that the end of your case here?”  

Not necessarily, Woofter argued, because that would depend on what the court meant by “valid.” 

U.S. Department of Justice lawyer Bradley Hinshelwood poked several holes at the plaintiff’s case, mostly about how it didn’t reflect the current reality of the final rule. 

“He didn’t contest the validity of the ratification,” he argued, “he didn’t say that provision applied here, he didn’t say that there’s any problem with the way the rule had been ratified.” 

Hinshelwood cited Congress’s non-delegation doctrine, which holds that legislative bodies can’t delegate their powers to other agencies, so Whitaker was acting within his powers, however temporary, to enforce President Trump’s memoranda. Otherwise, the legislative process would often come to a standstill. 

“The fact that most duties are non-delegable are a sign that Congress didn’t want to be paralyzed in the event of a vacancy,” he argued. 

He then argued that there were at least two other people who couldn’t enforce Trump’s memoranda: the ATF director and the deputy attorney general. But Barr’s ratification of the final rule was proper, nonetheless. “There’s no evidence that the ratification is being challenged,” he concluded. 

Woofter responded to these claims by saying that the plaintiff did, in fact, challenge the ratification throughout the briefing.  

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