Fate of Man’s Bump Stock Lies With En Banc 10th Circuit

The legality of America’s bump stock ban — and whether one man should keep his device through the duration of a lawsuit — came under the scrutiny of the en banc 10th Circuit.

A bump stock is attached to a semiautomatic rifle at the Gun Vault store and shooting range on Oct. 4, 2017, in South Jordan, Utah. (AP Photo/Rick Bowmer)

(CN) — The last man in America to legally own a bump stock asked the en banc 10th Circuit on Wednesday to allow him to keep the device — which turns a firearm into a machine gun of sorts — until the federal lawsuit challenging the legality of the devices has been decided.

W. Clark Aposhian, chairman of the Utah Shooting Sports Council, sued the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in January 2019 after the Trump administration instituted a rule change categorizing bump stocks as machine guns, effectively banning people from owning them.

The rule change came in response to the 2017 massacre at a country music festival in Las Vegas, where a man killed 58 people and injured hundreds more using a bump stock device. The federal government therefore contends the plastic accessory is illegal since it can make a perfectly legal semiautomatic weapon behave like a machine gun.

Aposhian counters banning bump stocks takes an act of Congress, and should not be left to unelected ATF bureaucrats under the control of the Department of Justice.

A federal judge denied Aposhian’s request for preliminary injunction in March 2019, leading to his first 10th Circuit appeal. The panel allowed him to keep his bump stock temporarily while it reviewed the situation, then denied his request for preliminary injunction in April 2019.

On Wednesday, Bill Clinton-appointed U.S. Circuit Judge Carlos Lucero questioned whether the appeals court should be hearing the case at all.

“I thought we had a case of substantial national importance before us, but as I studied this case I’ve continued to have serious reservation about the jurisdiction of our en banc court. And that is because we do not have a final judgment before us,” Lucero said. “Why isn’t this case nothing more than a request for an advisory opinion to the trial court below creating basically the law of the case when the case hasn’t even been heard?”

Aposhian’s attorney Caleb Kruckenberg of the New Civil Liberties Alliance, answered, “That is what this court has decided to rehear, in part the likelihood of success prong in the denial of preliminary injunction.”

Fellow Clinton appointee U.S. Circuit Judge Mary Beck Briscoe asked about the role of federal agency experts in designing the rules.

“Do you contend that the ATF has no expertise in defining and regulating various classes of firearms?” Briscoe asked.

Kruckenberg acknowledged that the agency’s firearm experts play an important role in rulemaking.

“Our contention here is that ATF does have expertise, but their expertise pointed against this stipulation,” Kruckenberg said. “The expertise for years was based on direct examination of bump stocks and the examiners said consistently these are not machine guns, that’s what the experts said. This rule instead is a repudiation of that expertise.”

The panel additionally examined the language in the federal machine gun ban, which in part defines the banned weapon by the “single function of the trigger” that sets the gun in motion.

“The fundamental interpretive question here is whether Congress, in banning machine guns because of the unique dangers they pose to the public and to law enforcement, drew a distinction between a weapon that allows a shooter to pull the trigger once and produces repeated fire by continuing to apply pressure to the trigger, and a weapon with a bump stock that allows a shooter to pull the trigger once, apply pressure on a slightly different part of the weapon and produce the same result: continuous fire until the shooter runs out of ammunition,” said U.S. Attorney Brad Hinshelwood.

Both Kruckenberg and Hinshelwood contend that the statute unambiguously supports their opposing arguments.

U.S. Circuit Judge Scott Matheson Jr., a Barack Obama appointee, questioned Hinshelwood on how both views could be true.

“I’m just having a hard time squaring that we had these 10 letters in the past, and then we get the rule, and you come in and say there’s no ambiguity — how can that be?” Matheson asked. “So the ATF for years and years was unambiguously wrong?”

Hinshelwood said yes.

“ATF was applying the wrong understanding of the statutory text,” Hinshelwood said. “ATF was applying the wrong definition of the word ‘automatically’ with respect to these devices.”

He argued the bump stock ban “isn’t a policy judgment, it’s what the statute requires us to do.”

Donald Trump-appointed U.S. Circuit Judge Allison Eid continued to press Hinshelwood for clarity.

“You believe that the language is not ambiguous and that the case stops there?” Aid said.

Hinshelwood agreed.

“There’s a reason why courts consistently rejected efforts to circumvent the statute by these sorts of novel devices, because otherwise Congress’ machine gun ban wouldn’t do a whole lot of good,” he said.

The 10th Circuit Court of Appeals is based in downtown Denver. Due to the pandemic, the hearing was conducted remotely and broadcast over YouTube.

At the conclusion of the 90-minute hearing, Chief U.S. Circuit Judge Timothy M. Tymkovich commended both parties.

“You performed optimally in suboptimal conditions,” the George W. Bush appointee said.

Fellow George W. Bush appointed U.S. Circuit Judges Harris Hartz and Jerome Holmes, Obama appointees Robert Bacharach, Gregory Phillips and Nancy Moritz, Trump-appointed Joel Carson rounded out the panel. They did not indicate when or how they will decide the case.

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