We might win this one.
Posted 7 Mar 2019 by GOA.
GOA Defends Bump Stocks and AR-15s in Court
On Wednesday,I left the federal district court in Kalamazoo, Michigan, where Gun Owners of America delivered its oral arguments in opposition to the ATF’s bump stock ban.
As you know, GOA is suing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) over its illegal ban on bump stocks.
This ban is so poorly written that it threatens the legality of AR-15s and other constitutionally-protected firearms.
GOA’s attorney Rob Olson did a fantastic job representing gun owners in court. And he repeatedly hammered the ATF for exceeding its authority and for capriciously reversing itself in banning firearms-related items that were once legal to own.
Olson also made it clear that hundreds of thousands of innocent bump stock owners are now in danger of becoming felons after March 26.
So given this looming deadline, GOA is requesting an injunction from the judge, which would stop ATF from enforcing the ban when the turn-in period ends.
Judge Appears Wary of ATF Overreach
During oral arguments, Olson had to vacillate between fine points of legal doctrine to countering the government’s talking points that could have come from Moms Demand Action.
For example, much of the discussion with the judge centered around a doctrine known as “Chevron deference.”
If you’re not familiar with this guideline, you might wonder what this has to do with bump stocks. But, in fact, it has quite a bit to do with the subject at hand.
“Chevron deference” is a doctrine that essentially gives a federal agency tremendous latitude in interpreting and applying a federal statute.
Olson consistently made the point that the ATF did NOT deserve deference … that the agency was misapplying the federal statute regarding bump stocks … and, more importantly, that the ATF was effectively changing the statutory definition of what a machine gun is.
This argument seemed to resonate with the judge, who appeared unwilling to grant deference to the ATF.
Why a Bump Stock is NOT a Machine Gun
Another much-discussed topic centered around the very nature of a bump stock.
The judge asked GOA’s counsel if a bump stock allows an uninterrupted automatic cycle of fire — as a machine gun would.
Olson said NO. He explained that a bump stock allows for repeated SEMI-automatic fire in a rapid manner, where each function of the trigger produces one bullet out the end of the barrel — albeit occurring in rapid, repeated succession.
The government took the contrary view, claiming that a bump stock starts in motion a continuous chain of successive fire.
More to the point, Olson noted that while an untrained shooter could fire an automatic weapon with one hand — by simply pulling the trigger back — no person could repeatedly bump fire a semi-automatic weapon with just one hand.
Even the ATF has had to concede in its written regulation that bump firing a weapon requires the shooter to use both hands.
And this gets to the core distinction between a bump stock and an automatic weapon. The U.S. code defines a machine gun as a firearm that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.”
One can fire a machine gun with only one hand because the internal mechanism in the weapon will produce automatic fire with a “single function” of the trigger.
But to bump fire a semi-auto, the shooter must use two hands, and in most cases, spend time learning how to actually perfect his individual technique for each different bump stock firearm.
Anyone who has ever bump fired a semi-auto knows there is a learning curve in determining the appropriate amount of force with which to push forward on the firearm using the non-trigger hand.
So in other words, it’s the shooter who creates the bump fire effect. Because “bump firing,” first and foremost, is a technique, and not a product that is sold over-the-counter.
But that’s not the case with a machine gun. A person who has never touched a gun could easily fire an automatic weapon because it’s the internal mechanism that actually allows repeated rounds to be fired “automatically.”
The back-and-forth between Olson and the judge on this point was crucial and could play a critical role in the judge’s decision-making process.
No Evidence that Bump Stocks are a Threat to Safety
One of the government’s lawyers brought up the Las Vegas shooting from 2017 as a reason to ban bump stocks. He claimed that the inherent dangerousness of bump stocks necessitated a ban for the sake of “public safety.”
Of course, if this logic were to prevail, the government could justify banning all weapons — handguns, rifles, shotguns, etc. — given that all these weapons are inherently “dangerous.”
GOA’s attorney countered by telling the judge there is no actual proof of one recorded instance where bump stocks have been used in a crime.
Olson even cited the lack of FBI and ATF statements, studies or reports to demonstrate that there is no conclusive evidence that a bump stock was actually used by the Las Vegas shooter.
This was something of a “mic drop” moment, because when given the chance to respond, the government’s lawyer could not — in fact, he refused to — counter Olson’s statement on this point.
Thus, the oral arguments in the Western district federal court on March 6 established unrebutted testimony that, to date, there is no proof of any documented case where a bump stock was used in a crime.
Even if it is one day determined conclusively that the Las Vegas shooting was the first case where a bump stock was used in a crime — it would still remain the ONLY case.
And this ONE case would hardly then represent an imminent “danger to public safety.” Especially when one considers that “bump firing” a weapon can be achieved without bump stocks, and that these items have been used by hundreds of thousands of gun owners in a perfectly safe manner.
Bump Stock Regs Open Door to Banning AR-15s
Finally, one of the most crucial moments centered around a discussion involving the potential threat to AR-15s.
GOA has repeatedly warned that the ATF’s ban on bump stocks can be easily used by a future anti-gun administration to ban most, if not all, semi-automatic rifles.
Olson repeated this warning to the judge and noted that the threat to AR-15s would inextricably follow from these regulations.
While the government lawyer hotly contested this assertion, Olson noted that there are other common, household items that can be used to bump fire an AR-15 — such as, rubber bands, belt loops, etc.
So what happens if a homeowner has several AR-15s and a box of rubber bands? Olson noted that the ATF has already successfully prosecuted people who owned unassembled parts that could later be used to (theoretically) convert a firearm into a machine gun.
In other words, the ATF has already shown its true colors on this point.
So if these regulations are eventually allowed to stand, gun owners need to beware.
Don’t be surprised if the ATF — say, under a President Kamala Harris administration — deems that any homeowner who possesses both AR-15s and rubber bands has committed a felony because he or she has “constructively intent” to build a machine gun.
You can be sure that, if this were to occur, the ATF will be called upon to provide “the best understanding of the law” at that particular time. And all of its prior promises and representations — that the rule does not apply to semi-autos — will be worthless.
Judge Questions ATF for their Change in Position
ATF officials are well-known for changing their positions “on a dime.” And they are guilty of doing this in regard to their position on bump stocks.
In court, the government claimed their prior opinions approving possession of bump stocks in the past were correct based on what they knew, but now they are “not the best understanding” of the law.
And this led to another “mic drop” moment, when the judge called them out on their past behavior.
The judge dryly wondered, out loud, why he should believe the ATF’s position today.
The ATF claims that judges like him must adopt the agency’s current interpretation on bump stocks.
But ten years ago, the judge noted, the ATF was arguing the complete opposite, claiming that bump stocks were totally legal under federal law.
It was a great point. And we can only hope the judge will take this point to heart — that it’s ATF’s arbitrary interpretations that have changed over the years, and not federal law.
Judges typically will not immediately issue their rulings, and this one was no exception. We can probably expect a decision within a week.
What I’ve shared with you here is only the tip of the iceberg from our day in court. But it certainly represents the highlights of what took place.
I want to thank you for helping keep Gun Owners of America on the frontlines. Your support of GOA is what allows us to continue the fight for freedom.