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Earlier this week in Cincinnati, lawyers for the Department of Justice and anti-gun-control nonprofit Gun Owners of America sparred over what makes a weapon a machine gun.

Newly manufactured automatic machine guns have been illegal in the United States since 1986. But, until earlier this year, civilians could legally possess devices bump stocks, which allow a user to mimic the firing motion of a fully automatic weapon.

Oddly enough, the Trump administration is on the right side of this one, defending the bump stock ban against challenges from people who care more about guns than gun violence.

On Wednesday, a conservative panel of the conservative Sixth Circuit Court of Appeals heard oral arguments in Gun Owners of America v. Barr, a case challenging the ban on bump stocks. And right now, things aren't looking great for the future of the bump stock ban.


Here's the background

On October 1, 2017, Stephen Paddock used bump stocks on 12 of his weapons to fire over 1,000 rounds of ammunition into the crowd at a country music festival in Las Vegas. He killed 58 people and injured several hundred more in just 10 minutes.

After the Vegas massacre, the Trump administration actually did something good for once. Without Congress passing any new laws, it used administrative procedure to ban bump stocks.

NBC News made a nice video showing what happened:

How The Trump Administration Banned Bump Stocks Without Passing Any Legislation | Think | NBC News www.youtube.com

Basically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which is part of the Department of Justice, changed the way it interpreted the word "machinegun" to include bump stocks. Under federal law, civilians generally cannot possess machine guns or bump stocks. (There is an exception for machine guns manufactured prior to 1986, which can be owned and transferred with permission of ATF. According to the Giffords Law Center, there are 638,260 pre-1986 machine guns on the national registry. )

The new ATF rule required owners of bump stocks to dispose of them or turn them over to the government prior to March 26, 2019. Anyone currently in possession of a bump stock can be charged with a felony. The first felony charges under the new rule were filed in September against Houston resident Ajay Dhingra. (Dhingra came to the attention of authorities after he sent an email to the George W. Bush Presidential Center, asking W to "send one of your boys to come murder me," saying, "I want to die by the hands of a white Christian." So that's great and normal.)

But there's nothing that the gun lobby hates more than common sense regulations to stop deadly mass shootings, so of course bans on bump stocks were immediately challenged. There are a number of ongoing cases challenging the federal bump stock bans and other bump stock bans enacted at state and local levels.

Gun Owners of America, the group behind the case at issue here, is on a crusade to be even worse than the NRA. Whether that's possible remains to be seen, but Gun Owners of America is certainly giving them a run for their money. Gun Owners of America touts a quote from Ron Paul calling it "the only no-compromise gun lobby in Washington" whenever possible. It has publicly gone after the NRA for what it sees as "compromises" on gun rights, like, for example, regulating bump stocks. GOA runs "public service ads" encouraging gun owners to keep their weapons easily accessible, rather than locked up. And, ignoring reality, Gun Owners of America believes that guns should be even more readily available to the public in America in 2019.

The oral argument

The panel seemed skeptical of the government's arguments in favor of the bump stock ban.

This is not great, but also not surprising. The panel of judges hearing the case was very Republican. The three judges included Senior US Circuit Judge Alice Batchelder (a Daddy Bush appointee), US Circuit Judge Helene White (a W appointee), and US Circuit Judge Eric Murphy (a Trump appointee). Also, the Sixth Circuit is among the most conservative, gun-friendly courts in the country.

The issue in this case isn't the Second Amendment, but whether it's reasonable for ATF to include bump stocks in FOPA's definition of machine gun. The district court opinion in this case hinged on the definition of the word "automatically."

In 1986, Congress enacted the Firearm Owners Protection Act (FOPA). FOPA makes it "unlawful for any person to transfer or possess" a machine gun. The law defines a "machinegun" as:

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in possession or under the control of a person.

ATF changed the definition of machine guns to include bump stocks "because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger." It interpreted the word "automatically" to mean "as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger." It thus found that the term "machinegun" extends to devices like bump stocks that permit a semiautomatic weapon to shoot more than one shot with a single pull of the trigger "by harnessing the recoil energy" "so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter."

Whether or not a bump stock makes a gun "automatic" within the meaning of federal law depends on how bump stocks work, so let's take a look at how they work.

How Las Vegas gunman might have turned a rifle into a rapid-fire weapon www.youtube.com

As described by the New York Times:

A "bump stock" replaces a rifle's standard stock, which is the part held against the shoulder. It frees the weapon to slide back and forth rapidly, harnessing the energy from the kickback shooters feel when the weapon fires.

The stock "bumps" back and forth between the shooter's shoulder and trigger finger, causing the rifle to rapidly fire again and again. The shooter holds his or her trigger finger in place, while maintaining forward pressure on the barrel and backward pressure on the pistol grip while firing.

The Sixth Circuit judges seemed unconvinced that the definition of machine gun should include bump stocks. Trump appointee Eric Murphy was particularly skeptical of the government's position, asking several questions of DOJ lawyer Brad Hinshelwood about ATF's definition of "automatic." Murphy also seemed concerned with the idea that, in the future, ATF could choose to redefine "machinegun" as including all semiautomatic weapons that can be modified with a device like a bump stock.

Gun Owners of America attorney Rob Olson argued that assault rifles fitted with bump stocks are still not firing "automatically," because the person shooting the gun needs to use the momentum of the recoil for a semiautomatic weapon to fire continuously with a bump stock. According to Olson, a bump stock creates a "human compression spring," which allows for quicker firing, but "the bump stock is simply along for the ride."

How bump stocks work is relevant to the issue before the court, but whatever the mechanics, the results are clear: Bump stocks can make semiautomatic guns, like the AR-15, fire almost as fast as fully automatic machine guns. A fully automatic weapon shoots about 14 rounds per second. Using a bump stock and an AR-15 in Vegas, Paddock shot about 9 shots per second.

What's next?

For now, we wait for the Sixth Circuit panel to issue its decision. There's no timetable of when their decision will come.

The panel decision is unlikely to be the end of this case. The losing party will likely either ask for the entire Sixth Circuit to rehear the case en banc or ask the Supreme Court to grant cert.

The Supreme Court is more likely to grant cert if the Sixth Circuit blocks the bump stock rule. That's because it would create a circuit split with the DC Circuit, which ruled in April that the bump stock ban was likely permissible. SCOTUS declined to step in.

Even if SCOTUS decides not to jump in after the Sixth Circuit's decision in this case, that doesn't mean that it won't rule on the bump stock ban in the future. Both this suit and the case in the DC Circuit are still at the preliminary injunction stage, which is fairly early on procedurally.

At the end of the day, it's probably best for everyone that the Roberts Court refrain from stepping into gun cases whenever possible. As we discussed last week, the current Supreme Court is likely to be very, very bad on guns and we're probably all going to die.

The fewer SCOTUS gun cases right now, the better.

Thoughts and prayers.

[ District Court Opinion / Oral Argument / DC Circuit / NBC / CBS / NYT ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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