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Skip Second Bump Stock Ban Case, DOJ Brief Tells Supreme Court

May 25, 2022, 11:33 PM

Owners of firearm accessories known as bump stocks and a gun-rights group shouldn’t be granted review of a Sixth Circuit ruling upholding a ban on the items, the Biden administration told the US Supreme Court.

The case presents a poor vehicle for revisiting deference to an agency under Chevron USA Inc. v. Nat. Res. Def. Council Inc., the Department of Justice said Tuesday in its brief opposing advocacy group Gun Owners of America Inc.'s petition for certiorari.

The lower court in the case approved the Bureau of Alcohol, Tobacco, Firearms and Explosives’ interpretation of a machine gun statute. The US Court of Appeals for the Sixth Circuit’s evenly divided decision affirming that decision doesn’t produce a conflict with other courts of appeals, the DOJ said.

“Indeed, because the Sixth Circuit affirmed the denial of a preliminary injunction by an equally divided vote, this interlocutory case thus far has not resulted in any precedential decision at all,” DOJ said on behalf of its sub-agency, the ATF. “The Fifth, Tenth, and D.C. Circuits have rejected similar challenges to the same final rule, and this Court has already declined to review the D.C. Circuit’s decision,” it said.

The case joins one already awaiting a decision on US Supreme Court review, Aposhian v. Garland. The high court has rescheduled its consideration of whether to take bump stock proponent W. Clark Aposhian’s case numerous times.

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 used semiautomatic rifles with bump stocks to kill 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 that fires “automatically more than one shot, without manual reloading, by a single function of the trigger.”

The ATF issued a rule reinterpreting the terms “single function of the trigger” and “automatically” to ban bump stocks.

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

The case is Gun Owners of Am., Inc. v. Garland, U.S., No. 21-1215, brief 5/24/22.

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; Patrick L. Gregory at pgregory@bloomberglaw.com