Judge Upholds Federal Bump Stock Ban

Authored by Tom Ozimek via The Epoch Times (emphasis ours),

A federal judge has upheld the ATF’s ban on bump stocks, devices that boost firing speed.

U.S. District Judge Jill N. Parrish ruled on Sept. 29 (pdf) that the prohibition on bump stocks imposed administratively by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) several years ago was appropriate.

“This court concludes that the regulation is an appropriate exercise of the agency’s discretion to fill gaps implicitly left by Congress,” and so “it declines to declare the rule unlawful or enjoin its enforcement,” wrote Ms. Parrish, an appointee of former President Barack Obama.

The lawsuit opposing the bump stock ban was brought by the New Civil Liberties Alliance (NCLA) on behalf of firearms instructor Clark Aposhian. It is one of several challenging the ATF’s ban on bump stocks, which are accessories that attach to semi-automatic firearms.

Bump stocks were banned in 2019 when the Department of Justice (DOJ) amended regulations of the ATF, classifying bump stocks as equivalent to machine guns and making them illegal.

The NCLA did not immediately respond to a request for comment on the ruling. But the NCLA’s litigation counsel, Caleb Kruckenberg, earlier called the case a “perfect example, unfortunately, of what we call the administrative state.” remove

“What I mean by that is with no intervening action from Congress with no change in the law, the ATF has said that they know better than Congress, and the ATF is trying to rewrite the statute. But that’s not their role,” Mr. Kruckenberg said in a video posted on the group’s website.

“Congress is supposed to write the laws and the executive branch acting through the agencies are supposed to apply them,” he added.

Congressional interest in bump stocks grew after authorities found that the gunman who perpetrated a mass shooting in Las Vegas in 2017 attached them to several of his semi-automatic firearms.

The ATF’s administrative rule change amended the regulatory text by adding the following language: “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.”

Several bump stock owners, including Mr. Aposhian, filed lawsuits challenging the ban, seeking to block it from going into effect. A common argument was that the ATF promulgated the rule in violation of the Administrative Procedure Act (APA).

While the case is technically about bump stocks, the NCLA’s Mr. Kruckenberg said it’s about much more than banning a gun accessory—”This case is about who gets to write the law.”

In a series of decisions, the U.S. Courts of Appeals for the Tenth and D.C. Circuits rejected APA-based challenges to the rule, while the Sixth Circuit was evenly split, leading to a district court upholding the ban. The U.S. Supreme Court declined to review the three cases.

By contrast, the Fifth Circuit ruled in January 2023 that the rule violates the APA that an act of Congress is required to ban bump stocks. This lawsuit was brought by Michael Cargill, owner of Central Texas Gun Works in Austin.

“Cargill is correct. 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 ‘machine gun’ set forth in the Gun Control Act and National Firearms Act,” the Fifth Circuit said in its ruling.

“Without a bump stock or the use of an alternative bump technique, the user must provide manual input by pulling the trigger with the muscles of his trigger finger. With a bump stock, the shooter need not pull and release his trigger finger. But the shooter must still apply forward pressure to the weapon’s forebody in order to maintain the shooting mechanism,” U.S. Circuit Judge Jennifer Eldrod wrote in the opinion. “Again, the manual input remains, even though its form changes.”

Dissenting judges argued that the statutory language is ambiguous enough to support classifying bump stocks as machine guns and that court used “lenity to legalize an instrument of mass murder.”

Lenity is a principle in law that calls for any ambiguity in a criminal statute to be interpreted in favor of the defendant, resulting in a more narrow interpretation of the law.

In April 2023, the DOJ petitioned the Supreme Court to hear its appeal of the Fifth Court’s ruling in favor of Mr. Cargill that halted the bump stock ban.

The NCLA said in June that it supports Supreme Court review of the case, saying it believes that the ruling would uphold the Fifth Court’s decision to strike down the prohibition.

“The Fifth Circuit held that the ‘rule of lenity’ requires that ambiguities in criminal statutes be construed against the government so that ordinary citizens will not be punished unless they have clear notice of the conduct that is prohibited,” Richard Samp, NCLA senior litigation counsel, said in a statement.

“NCLA is urging the Supreme Court, if it agrees to hear Mr. Cargill’s case, to address whether the rule of lenity requires rejection of ATF’s rule,” he added.

The case remains pending before the Supreme Court.