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‘Like Justice Scalia, But Without the Wit’: Trump-Appointed Judge, 41, Criticized for Trollish Bump Stock Opinion

A 41-year-old Texas federal judge appointed to the bench by President Donald Trump in 2019 ruled that the federal government cannot rely on “police power” to avoid compensating owners of bump stocks after the devices were outlawed in 2018. In a 14-page opinion apparently intent on trolling the federal government over the firearm restriction, U.S. District Judge Brantley Starr of the Northern District of Texas wrote that the Department of Justice must have “forgot[ten]” about the U.S. Constitution itself when claiming that the prohibition on bump stock possession was an exercise of the government’s police power.

“The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself,” Starr wrote. “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, the Court DENIES the motion to dismiss WITHOUT PREJUDICE.”

The case centers on Plaintiff Brian Lane, who sought compensation for three bump stock devices he purchased before the federal government re-classified the device as constituting a machine-gun under 18 U.S.C. § 922(o) in the aftermath of the Las Vegas music festival mass shooting that left 58 dead and more than 400 wounded.

But Starr, who’s a longtime member of the Austin Chapter of the Federalist Society, seemed to ignore the particular question at issue – whether Lane is entitled to compensation. Instead, he took took aim at what he views as federal overreach in exercising police powers.

“The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply,” Starr wrote. “This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government. Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation’s founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power. None of these powers is the police power.”

Starr then went on a wild protracted search for legal authority supporting the the government’s asserted police power.

“Confused that the United States would base their case on a power the Supreme Court told the United States in Lopez that it didn’t have, the Court continued its search in case the Supreme Court later changed its mind,” he wrote before citing to a case which held that “police power is controlled by 50 different states.”

“So, not even the Supreme Court has rewritten the Constitution to give a plenary police power to the federal government. Perhaps there is one more place, where the collective will and knowledge of the people is expressed, that might indicate if the federal government has seized the police power from the states: the Constitution Wikipedia. But strangely, even Wikipedia has overruled neither the Constitution nor the Supreme Court.”

Yes, the strike-through on “the Constitution” you see above was how it appeared in the opinion.

But Starr’s logic would also invalidate the federal ban on machine guns, as the government would not have the authority to prohibit such weapons despite that authority being repeatedly upheld as constitutionally delegated to by the legislature, noted  Duke Law lecturing fellow and executive director of the Center for Firearms Law Jake Charles.

It appears that Judge Starr’s real aim was to force the government to address whether the Bureau of Alcohol, Tobacco, Firearms and Explosives could constitutionally classify bump stocks as machine guns.

In ordering the government to submit another motion to dismiss the lawsuit, Starr instructed the government to “address whether the validity of the final rule is an issue under the proper judicial framework for assessing the taking,” adding in a footnote that “the Government is further encouraged to dive into the technical aspects of the statutory text and the real things it applies to: firearms.”

Starr also managed to take issue with the ATF’s name for lacking an Oxford comma.

“The Court takes issue with the lack of an Oxford comma after ‘Firearms’ in the Bureau’s name,” he wrote. Oxford commas add clarity and cost nothing. For example, can the Bureau regulate firearms independently from explosives, or does the lack of a comma in between those two words indicate they can only be regulated when found together?” he asked. “These and others are big problems tiny commas can solve.”

Professor Justin Murray of New York Law School said the decision “reads like Justice [Antonin] Scalia, but without the wit.”

Another lawyer called the opinion “unnecessarily snarky” and “disrespectful.”

Read the full decision below:

Bump Stock Decision by Law&Crime on Scribd

[image via Texas Federal Courts]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.