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Bump-Stock Ban Remains as Appeals Court Splits on Gun Law (1)

Dec. 3, 2021, 9:12 PMUpdated: Dec. 3, 2021, 10:21 PM

A government ban on firearm accessories known as bump stocks will remain in place, after a federal court decision upholding the law was affirmed by an evenly divided full Sixth Circuit on Friday.

Gun Owners of America and other groups challenged the ATF rule and asked for a preliminary injunction to block it. The district court denied the challengers’ request.

The 8–8 even division of the U.S. Court of Appeals for the Sixth Circuit allows that lower court decision to stand. A majority vote would be needed to overturn the lower court.

A machine gun law contains “two central ambiguities,” and the Bureau of Alcohol, Tobacco, Firearms and Explosives was allowed to interpret the law the way it did to justify the ban, eight judges concluded.

By contrast, eight other judges said that rifles fitted with bump stocks don’t qualify as machine guns.

The split also extended to the question of how much deference courts should give agencies, particularly when they interpret laws with criminal applications. Those who wrote to affirm the lower court said several U.S. Supreme Court precedents have applied deference in that context.

Bump stocks harness a gun’s recoil energy to rapidly move the firearm back and forth, bumping the shooter’s stationary finger against the trigger. In the wake of the 2017 Las Vegas mass shooting, in which a gunman using semiautomatic rifles with bump stocks killed 58 people, then-President Donald Trump ordered the Justice Department to quickly ban “all devices that turn legal weapons into machine guns.”

Federal law generally bans civilian ownership of machine guns manufactured after May 1986, including any parts used to convert an otherwise legal firearm into an illegal machine gun. It defines a machine gun as a weapon which fires “automatically more than one shot, without manual reloading, by a single function of the trigger.”

The Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule reinterpreting the terms “single function of the trigger” and “automatically” to ban bump stocks.

“The phrase ‘single function of the trigger’ is capable of two readings,” Judge Helene White in support of affirmance. One reading is “shooter-focused” and refers to a “pull” of the trigger, while the other is mechanical, in which each bullet in a rifle with a bump stock fires bullets individually through depressions of the trigger “generated by the weapon’s recoil.”

“The word ‘automatically’ is also ambiguous,” she said.

A separate challenge to the bump stock rule also foundered when a Tenth Circuit panel affirmed a lower court’s refusal to lift the ban. The full Tenth Circuit agreed to hear the case but later decided to drop it. The bump stock proponents in that case are seeking U.S. Supreme Court review.

Meanwhile, the Nevada Supreme Court ruled Thursday that the parents of a young woman killed in the 2017 Las Vegas shooting can’t pursue claims against Colt’s Manufacturing Co. and other gun companies because of that state’s broad immunity provision for gunmakers.

William J. Olson PC and Pentiuk, Couvreur & Kobiljak PC represented Gun Owners and the other plaintiffs. The Department of Justice represented itself.

The case is Gun Owners of Am., Inc. v. Garland, 6th Cir. en banc, No. 19-01298, 12/3/21.

(Updated throughout with additional court analysis and context)

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com