A court challenge to the Trump administration’s ban on bump stocks, which was the device a man in Las Vegas used to murder 58 concertgoers in 2017, has experienced another setback, as the Denver-based federal appeals court earlier this month took the unusual step of reconsidering its prior decision to review the ban as a group.
The 12-member U.S. Court of Appeals for the 10th Circuit, which reviews cases from six states, agreed in September to conduct a rare group assessment of the bump stock appeal — known as an “en banc” hearing — after a three-member panel declined to halt enforcement of the ban.
The en banc oral argument took place in January. However, earlier this month, a majority of the 10th Circuit reversed course, and agreed to set aside the oral argument so that the panel’s decision would stand. The five members of the 10th Circuit who were appointees of Republican presidents disagreed with that decision.
“The manner in which the panel majority addressed these issues is not only wrong, it creates an unfortunate amount of uncertainty for future litigants,” wrote Chief Judge Timothy M. Tymkovich.
Bump stocks are devices that use the recoil of a semi-automatic weapon to continuously shoot with the trigger depressed. A man had several rifles outfitted with bump stocks when he murdered nearly five dozen people and injured hundreds more at a country music festival in Las Vegas.
Effective March 26, 2019, the Bureau of Alcohol, Tobacco, Firearms and Explosives required current owners of bump stocks to “divest themselves,” either by destroying or surrendering the products to the ATF. The bureau determined the devices fell under the definition of machine guns, which are generally banned under federal law.
"Machine guns have been tightly regulated under federal law since the 1930s, but bump stocks and other conversion devices are designed to skirt the law and mimic automatic gunfire and can increase the lethality of shootings," Everytown for Gun Safety, a gun safety advocacy group, said in a statement following the ATF's action.
W. Clark Aposhian, a Utah firearms trainer, sued the Trump administration, asking for a preliminary injunction against the bump stock rule. A U.S. District Court judge sided with the federal government, as did a majority of the 10th Circuit panel on appeal, citing a doctrine that defers to the executive branch's interpretation of law when Congress is ambiguous.
"Because ATF’s Final Rule sets forth a reasonable interpretation of the statute’s ambiguous definition of 'machinegun,' it merits our deference," wrote Senior Judge Mary Beck Briscoe in a May 7, 2020 opinion. She indicated that Aposhian was unlikely to succeed on his ultimate goal to prevent the bump stock ban from taking effect.
On March 5, a majority of the 10th Circuit rescinded its support for holding an en banc hearing, prompting dissents from Tymkovich and Judges Harris L Hartz, Jerome A. Holmes, Allison H. Eid and Joel M. Carson III.
"The National Firearms Act is not ambiguous. It has been on the books for nearly ninety years and its definition of a 'machinegun' has proven workable," wrote Carson, who was also the dissenting vote on the 10th Circuit panel. "Indeed, until the Executive developed an unfavorable opinion of nonmechanical bumpstocks, the federal government blessed the devices as complying with the NFA on many occasions. A legal device can be used to perpetrate horrific acts, but that does not make it illegal and does not render the statutory definition allowing its possession ambiguous."
Aposhian's attorneys criticized the court's change of course.
“Five members of the Tenth Circuit recognized that not only was the bump stock ban an invalid rule, but also that it violated the basic structure of the Constitution by empowering a prosecutorial agency to rewrite the federal criminal law. The majority’s dangerous and misguided decision must not stand,” said Caleb Kruckenberg, litigation counsel for the New Civil Liberties Alliance.
“Rather than bring clarity to a deeply confused area of administrative law, a majority of the Tenth Circuit has decided to wave its magic wand and vanish this case from the docket,” added Mark Chenoweth, also with NCLA.
By contrast, Brad Hinshelwood, an attorney with the U.S. Department of Justice, told the judges at the en banc oral argument that the federal law requires bans of machine guns as well as weapons "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."
The case is Aposhian v. Wilkinson et al.