The 5th U.S. Circuit Court of Appeals in New Orleans striking down a Trump administration rule banning “bump stocks” in a 13-3 decision could have national implications but could also be misinterpreted by some gun rights activists.
As precisely explained here by Ammoland colleague John Crump, the court ruling says the ban is a “violation of federal law.”
However, nowhere in the ruling is there a determination the bump stock device is protected by the Second Amendment.
What does appear in the ruling though is detailed, perhaps “bombshell,” language that could if properly disseminated and correctly used by the establishment media, create headaches for the gun prohibition lobby, which has been so far allowed to create the impression that modern semiautomatic rifles are “weapons of war.” This is an entirely different issue than the bump stock ban and how it was initiated, which is what the case before the 5th Circuit was about.
Reuters quoted Mark Chenoweth, president of the New Civil Liberties Alliance which litigated the case, stating, “The resulting circuit split should bring this decision to the U.S. Supreme Court’s attention promptly and supply a suitable vehicle for deciding this issue once and for all.”
The majority opinion was written by Judge Jennifer Walker Elrod, a George W. Bush appointee. She noted early in her 44-page majority ruling, “Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation at issue. He now challenges the legality of that regulation, arguing that a bump stock does not fall within the definition of ‘machinegun’ as set forth in federal law, and thus that ATF lacked the authority to issue a regulation purporting to define the term as such.
“Cargill is correct,” Judge Elrod continued. “A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.”
Judge Elrod also made this point: “We note one important distinction. Some bump stocks—called mechanical bump stocks—are equipped with springs or other internal mechanical devices that automatically assist the shooter to engage in bump firing. For such a bump stock, the shooter does not have to maintain pressure on the barrel and trigger ledge in order to maintain this firing sequence. Only nonmechanical bump stocks are at issue in this case.” (Emphasis added.)
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives did not immediately comment.
The Trump-era ban was in response to the October 2017 mass shooting at a country music event in Las Vegas that left 58 people dead, and hundreds injured. The ban took effect in 2019, and one result was a buyback program in Washington State that spent $150,000 to recover hundreds of bump stocks and recently found itself in the news when a piece of legislation sought to remove a privacy provision from state law that protected the names of people who turned in their bump stock accessories for $150 apiece. That information no longer exists, according to a communications specialist with the state Democratic Caucus, but the bill was being rewritten to eliminate the misunderstanding.
According to the Associated Press, the 5th Circuit ruling “doesn’t have an immediate effect on the ban though because the case now moves back to the lower court to decide how to proceed.”
But that’s not what the majority opinion actually states. Judge Elrod’s ruling is specific: “The Final Rule promulgated by the ATF violates the APA. We therefore REVERSE the judgment of the district court and REMAND with instructions to enter judgment for Cargill.”
The AP story also noted “The ban had survived challenges at the Cincinnati-based 6th U.S. Circuit Court of Appeals; the Denver-based 10th Circuit; and the federal circuit court in Washington.”
The ruling frequently uses the term “lenity,” which roughly translates to indulgence or leniency, and it was at the core of a dissent by Judge Stephen A. Higginson, a Barack Obama appointee—joined by judges James L. Dennis, a Bill Clinton appointee, and James E. Graves, Jr., also an Obama appointee—which observed, “Today, our court extends lenity, once a rule of last resort, to rewrite a vital public safety statute banning machineguns since 1934. In conflict with three other courts of appeals, our court employs its new lenity regime to carve out from federal firearms regulation the bump stock—a device that helped the Las Vegas shooter fire over a thousand rounds during an eleven-minute long attack, at times shooting about nine bullets per second, killing at least 58 people and wounding hundreds more. See Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times (updated Mar. 28, 2019). Therefore, our court uses lenity to legalize an instrument of mass murder.”
Judges joining in the Elrod opinion, according to Reuters, were “Priscilla Richman, Edith Jones, Jerry Smith, Carl Stewart, Leslie Southwick, Catharina Haynes, Don Willett, James Ho, Kyle Duncan, Kurt Engelhardt, Cory Wilson and Andrew Oldham. All but Stewart are Republican appointees to the appeals court.” Judge Stewart is a Clinton appointee.
Only Fox News carried a quote from attorney Richard Samp, who represented Cargill.
“This case is not about gun control,” Samp explained. “It is instead about who has the constitutional prerogative to change the criminal law if changes are warranted. The current statute, adopted in 1986, defines ‘machinegun’ in a manner that does not encompass non-mechanical bump stocks. It is unlawful for a prosecutorial entity like ATF to rewrite existing law without authorization from Congress. Any change in gun-control laws must emanate from Congress.”
And in that regard, a few paragraphs in Judge Elrod’s majority opinion could become very problematic for anti-gunners who henceforth misrepresent semi-auto rifles during any debate on Capitol Hill or in state legislatures about gun bans, which are on the agenda right now.
“To understand what a machinegun is,” Judge Elrod wrote on Pages 5-7, “it is helpful to understand what a machinegun is not. To that end, the firing mechanism of a semi-automatic weapon is especially important. The relevant parts are as follows:
“The trigger is the interface between the gun’s internal mechanism and the human finger,” Judge Elrod detailed. “The sear is the trigger’s top-forward geometric plane, which locks snugly into a groove near the spring of the hammer. The hammer is the spring-loaded element that strikes the firing pin, causing ignition of the charge and propulsion of the bullet. The disconnector is a part that sits on top of the trigger and serves to reset the hammer after a round is fired; this resetting is what makes a semi-automatic weapon semi-automatic…
“The end result,” the judge explained, “is that the user of a semi-automatic firearm can fire rapidly by means of repeated use of the trigger. Critically, use of the trigger necessarily corresponds one-to-one with bullets fired. That is, a single pull of the trigger results in a single bullet fired. Without resetting the trigger, the disconnector cannot reset the hammer to the fully cocked position. And unless the hammer is fully cocked, it will not be able to strike the firing pin with sufficient force to discharge the weapon a second time. (When a weapon fails to fire for this reason, it is said to experience a ‘hammer follow’ malfunction.) In sum, both the hammer and the trigger-disconnector must invariably return full circle before another round can be dispatched.”
Congressional and legislative anti-gunners have frequently been perplexed in their attempts to demonize and define so-called “assault weapons,” and now Judge Elrod has provided a plainly understood guide about the divide between semi- and full-auto firearms.
It remains to be seen whether the media provides this information to the public.
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