NEW ORLEANS (CN) — An attorney told a three-judge panel at the Fifth Circuit Court of Appeals Wednesday afternoon that a federal judge in Texas was mistaken in finding last year that the Bureau of Alcohol, Tobacco, Firearms and Explosives had authority to outlaw bump stocks that enable rifles to fire hundreds of times in minutes.
Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance, a non-profit, non-partisan civil rights group focused on protecting “constitutional freedoms from violations by the Administrative State,” according to its website, told the circuit judges Wednesday that bump stocks, which when attached to rifles enable a firearm to shoot continuously, are different from machine guns in that with a machine gun you simply touch the trigger, whereas with a bump stock attachment the shooter needs to pull the trigger every time she would like to initiate a new round of fire.
Kruckenberg disagreed with the federal judge’s finding that a bump stock enables a gun to shoot “continuously.”
The New Civil Liberties Alliance takes the position that “the case is not about gun control. Rather, it brings to the fore the question of who gets to make the laws that restrict the American people’s liberty.”
In an order last year, U.S. District Judge David Ezra of the Western District of Texas found that pushing on a trigger “is automatic fire, and we find that incorrect,” Kruckenberg told the panel.
“But what’s the difference?” asked Circuit Judge Stephen Higginson, an appointee of Barack Obama.
“The difference is that with a bump stock the shooter has to push forward continuously,” Kruckenberg replied, as opposed to a machine gun in which the shooter has only to place a finger on the trigger.
The congressional order at issue that outlaws machine guns was written in 1934 and revised in 1968 under the auspices of gun control and regulation.
“I’m thinking of Congress in 1934,” Judge Higginson said. “Why would they be concerned with the mechanics of the gun? I’m thinking they would be concerned with rapid, continuous fire.”
Kruckenberg replied that it wasn’t about the rapidity of fire at all but about the mechanics.
“But — just intuitively, why would Congress allow what they were trying to prevent?” Higginson asked. “Why would they allow rapid fire?”
Kruckenberg referred to the findings of fact from Judge Ezra in which the document noted that skilled shooters can shoot even semi-automatic guns continuously even without a bump stock.
“It’s not about rapid fire,” Kruckenberg said. “Look at the findings of fact. Someone can fire a gun faster than a bump stock.”
“But if through a single action there will be a spray of bullets — I think that’s what Congress was after,” Higginson said.
“I disagree. The shooter still has to push forward continuously. Secondly, it’s not a single action. The trigger has to reset before it can bump again before every round,” Kruckenberg said. “Mechanically, the trigger lever resets every time.”
But Mark Stern who argued on behalf of the ATF said there is no “practical difference between a machine gun and a bump stock.”
“Courts can just say ‘Well, bump stocks didn’t even exist in 1934, so it’s Congress’ job to update the list, not ours,” Higginson said.
Bump stocks were developed around two decades ago but only came under fire in the wake of the 2017 Las Vegas mass shooting in which 58 people were killed and hundreds of others were injured after gunman Stephen Paddock filled his hotel room with rifles equipped with bump stocks.
“Congress knew there would be developments in the future — and the 1968 Gun Control Act revised that… and made clear that any device you might add on to a semi-automatic to … were clearly machine guns also …. So, I think it’s entirely appropriate to think that the broad language the government chose…” was intentional, Stern said.
Stern went on to say that in outlawing bump stocks the government didn’t intend to do anything other than include bump stocks into the category of machine gun and make them illegal.
“Were just here because the ATF has the right interpretation of this statute, and that’s what were here to affirm,” Stern said.
Similar cases are pending before the Sixth and Tenth Circuits.
A spokesman for the ATF declined to comment on the hearing.
Kruckenberg, the attorney who argued on behalf of a Texas-based bump stock owner during Wednesday’s hearing said afterward during a phone conversation that the circuit judges seemed to be very familiar with the case.
“I personally was very impressed the judges were well-versed on the issues,” Kruckenberg said.
“This is a potentially major case because there are about half a million people in this country who bought bump stocks with the ATF’s permission. I think the court understands the stakes and they certainly are well-versed and poised to make the right decision.”
Judges James Dennis, an appointee of Bill Clinton, and Gregg Costa, another appointee of Obama joined Higginson on the panel. The judges did not say when or how they might rule on the matter.
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