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10th Circuit on bump stocks
The 3 judge panel upheld the government's position, a majority of the entire court voted to rehear it en banc, and now the court decides to dismiss the en banc case and reinstate the panel opinion.
The dissents from this lay out a very good legal criticism of the panel discussion. One of these cases might just be cert-worthy, in order to review Chevron deference. Here the court is supposed to defer to the agency interpretation of law (what is a machine gun) when the agency reversed its position... why is its first position not as entitled to deference as its second?
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It all comes down to "Because we say so".
"Expedience, not justice, is the rule of contemporary American law.
Abbie Hoffman
“After having thus taken each individual one by one into its powerful hands, and having molded him as it pleases, the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.
Alexis de Tocqueville
The dissents are powerful and persuasive yet they omit to discuss the extraordinary progress of this appeal, Aposhian, in the 10th Circuit.
As the dissenters point out, the government's action is clearly unlawful. But this is a gun-related case and the judges in the panel majority cherish the principle that gun owners must always lose, so they invented a clearly bogus (almost insane) extension of Chevron deference to give the government the win.
Because the panel decision was so bogus, the case drew enough Circuit judges' votes to go en-banc. However, the 10th Circuit has a majority of judges who believe that gun owners must always lose.
This case then presented those judges with a horrible dilemma: if they ruled for the government they would make the panel's bogus Chevron extension (and some related stuff, see the dissents) into Circuit precedent, screwing up all sorts of non-gun-related cases. Yet if they corrected the panel then some gun owners would win.
The case was all set up for an en-banc decision, with briefing and even oral argument complete. What to do? The majority broke the dilemma: without any legal basis (and without even one word of explanation) they D.I.G.'ed the en-banc appeal! That way they fulfilled their imperative that gun owners must always lose, while saving the correction of the panel's Chevron (and related) bogosity for another day, in a future non-gun-related case. (Too bad for the litigants who will suffer in the meantime.)
No doubt D.I.G. orders have been misused before, but still, it is remarkable to see a majority of Circuit judges so openly abuse their colleagues by dismissing a remarkably well-founded en-banc appeal in this fashion.
I wonder whether the 10th Circuit will bother to overrule this case, Aposhian, even by implication in the future. Perhaps all 10th Circuit panels will simply pretend in all non-gun cases that Aposhian just never happened. Insane quasi-Chevron deference will then only apply to gun-related cases and if the government asks for it without a gun connection 10th Circuit panels will give them the fish eye-- Aposhian may become another "ticket good for one ride only."
Of course, the crazy logic of Aposhian may be adopted by other Circuits-- the 2nd, or the 9th would seem like plausible subscribers.
One again “Shall not be infringed “ has changed to read “Shall be infringed “