CINCINNATI (CN) – A gun rights lobbyist group argued before the Sixth Circuit on Wednesday that rapid-fire gun attachments known as bump stocks should not be included in the government’s definition of machine gun.
Gun Owners of America, called “the only no-compromise gun lobby in Washington” by former Texas Congressman Ron Paul, sued Attorney General William Barr last year shortly after the Bureau of Alcohol, Tobacco, Firearms and Explosives updated the statutory definition of machine gun to include bump stocks.
The device, which gained notoriety following the 2017 shooting of concertgoers in Las Vegas, replaces the standard stock of a rifle and uses a semiautomatic weapon’s recoil to create a back-and-forth sequence that increases the rate of fire to one similar to a fully automatic weapon.
The ATF’s rule allowed owners of bump stocks to dispose of them by March 26, 2019, after which possession of one would become a felony offense.
U.S. District Judge Paul Maloney denied Gun Owners of America’s motion for a preliminary injunction shortly before the disposal deadline. The George W. Bush appointee found the group was unlikely to succeed on the merits of its claims for violations of the Administrative Procedure Act, or APA.
The statutory definition of machine gun includes the phrase “shoots … automatically more than one shot, without manual reloading, by a single function of the trigger,” and the lower court ruling hinged on the word “automatically.”
The ATF’s interpretation of the word “automatically” included the action of a shooter putting forward pressure on a bump stock to increase the rate of fire, and Maloney found this a reasonable and permissible interpretation under the APA.
Gun Owners of America argued the ATF’s rule is arbitrary because rubber bands and belt loops can be used to accomplish the same increase in rate of fire, but Maloney was not convinced.
“ATF’s interpretations of the statute,” he wrote, “which extend to devices specifically designed and marketed for the purpose of increasing the rate of fire of a semiautomatic weapon will not pose a danger of prosecution to individuals who own a semiautomatic weapon and also happen to own pants or elastic office supplies.”
Attorney Rob Olson argued on behalf of Gun Owners of America at Wednesday’s hearing, and told the Sixth Circuit panel that bump stocks do not convert a semiautomatic weapon into a machine gun.
Olson laid out a hypothetical scenario in which a semiautomatic AR-15 with a bump stock and a fully automatic M-16 rifle were strapped to a table and had their triggers zip-tied. He said that while the M-16 would fire continuously, the AR-15 would fire just a single shot.
The attorney said the device creates a “human compression spring” that allows for an increased rate of fire, but that “the bump stock is simply along for the ride.”
U.S. Circuit Judge Eric Murphy, an appointee of President Donald Trump, asked Olson if his client is seeking a nationwide injunction to prevent enforcement of the rule.
The attorney answered that he is, and that such relief is allowed under the APA.
Attorney Brad Hinshelwood from the Department of Justice argued on behalf of the government, saying bump stocks fall under the definition of machine gun because the devices “set up a continuous cycle” of fire once the shooter pulls the trigger.
Murphy spoke at length throughout Hinshelwood’s argument and pressed the attorney about the government’s shifting position on the interpretation of the statutory language found in the National Firearms Act.
Murphy accused the ATF of making mistakes in its interpretation of the Act in the past 10 years, and asked why every AR-15 would not be illegal given that they could be modified to act as fully automatic weapons with bump stocks or other devices.
“The bump stock is the machine gun in terms of the statute,” Hinshelwood responded, pointing out that the government has never thought to include all semiautomatic weapons as machine guns just because they could be modified.
In his rebuttal, Olson urged the panel to issue a nationwide injunction, but said he realizes the relief his client wants won’t be the end of the debate.
“This is something that is going to continue to percolate in the American government,” he told the court.
Both attorneys declined to comment after the hearing.
Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, and U.S. Circuit Judge Helene White, an appointee of George W. Bush, also sat on the panel.
No timetable has been set for the court’s decision.