The Supreme Court has rejected an attempt to put on hold the Trump administration’s ban on bump stocks. One of the justices indicated, however, that the court will observe how lower courts handle the issue and may pick it up later.
President Donald Trump ordered the ban on Feb. 20, 2018, asking the attorney general to outlaw devices that allow semi-automatic rifles to fire rapidly like machine guns, which are mostly illegal for civilians. A bump stock harnesses a semi-automatic rifle’s recoil force to allow it to achieve a fire rate nearly equivalent to that of an automatic rifle.
The devices received unprecedented media attention after Las Vegas shooter Stephen Paddock used them in killing 58 and injuring hundreds more on Oct. 1, 2017.
The Firearms Policy Foundation, a gun rights group, and other plaintiffs sued in federal court to try to reverse the bump stock ban and pause its implementation while the case works its way through the courts. The District of Columbia District Court refused to pause the rule, which went into effect on March 26, 2019. The D.C. appeals court affirmed the decision in April.
The Supreme Court last year refused to pause the ban as well, and the justices also refused to temporarily exempt the plaintiff in the case from the ban.
While requests to put the rule on hold have failed, the case is yet to receive a final decision on its merits.
In a March 2 court statement (pdf), Justice Neil Gorsuch affirmed that the request to put the rule enforcement on hold “does not merit review.” But he also criticized the D.C. circuit for weighing the ban on improper grounds.
The appeals court ruled that the ban was likely a non-ambiguous and “reasonable” interpretation of the National Firearms Act and that the courts should defer to the administration’s judgment in such regulatory matters—even though the government in this case explicitly rejected that it should receive such deference.
Gorsuch disagreed. He said the government is telling people they need to hand over or destroy their legally purchased bump stocks or face up to 10 years in federal prison. In questions of criminal law, the courts shouldn’t defer to the government, but interpret the law independently.
“The agency used to tell everyone that bump stocks don’t qualify as ‘machine guns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days, it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations,” he said.
“How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared ‘reasonable’; and to guess again whether a later and opposing agency interpretation will also be held ‘reasonable’? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”
Gorsuch acknowledged that he couldn’t judge the bump stock ban on its merits “without briefing and argument.” He indicated the justices would like to wait to hear final judgments on the matter from lower courts.
“Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems [as the D.C. circuit decision],” he said.
Lawyers for several parties involved in the suit expressed disappointment with the decision, but also some optimism regarding Gorsuch’s statement.
“I do hope the Court takes up this issue in future, because it arises in a host of areas, most of which are less exotic than bump stocks,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the libertarian Cato Institute, which briefed the Supreme Court in support of the plaintiffs.
Gorsuch’s statement will be “a strong indication to the courts still considering challenges to the bump stock rule not to make the same mistakes that the D.C. Circuit made,” said Caleb Kruckenberg, who represents the New Civil Liberties Alliance in two other cases against the bump stock ban in the 10th Circuit and in the Western District of Texas.
“We are confident that the courts reviewing these challenges will heed Justice Gorsuch’s admonition,” he said.
The alliance also briefed the Supreme Court in support of the D.C. plaintiffs.
Erik Jaffe, lawyer for the D.C. plaintiffs, warned that the bump stock rule could have broader implications.
“The rule they passed changes the definition of a machine gun and what it means to ‘automatically fire,’” he told The Epoch Times over the phone.
The new rule says that a bump stock allows “automatic” fire because its a “self-acting or self-regulating mechanism” to harness the recoil energy.
The plaintiffs say the mechanism doesn’t act or regulate itself on its own—at least not completely. It requires the shooter to continually pull the barrel of the rifle forward so that the gun slides out of the stock a bit after each shot and the trigger thus bumps against the trigger finger again.
“Any semi-automatic can be bump-fired, with or without a bump stock,” Jaffe said.
If the new standard is that a device needs to simply make bump-fire easier, many other gun parts do that too, including any regular stock, Jaffe said.
“It actually threatens a far more expansive law enforcement regime,” he said.
The fact that no other justices joined Gorsuch’s statement indicates some difference of opinion on the bench, he said.
Five of the sitting justices were appointed by Republican presidents and four by Democrats. Gorsuch is a Trump appointee.
The Department of Justice didn’t respond to a request by The Epoch Times for comment.
“Unfortunately, while the bump stock issue is in litigation, I cannot comment any further & would encourage you to refer to the pleadings that are publicly available,” said April Langwell, spokeswoman for the Bureau of Alcohol, Tobacco, Firearms, and Explosives in an email to The Epoch Times.
Update: The article was updated with a response from the Bureau of Alcohol, Tobacco, Firearms, and Explosives as well as information about Cato Institute’s and New Civil Liberties Alliance’s relationship to the petition to the Supreme Court regarding the D.C. bump stock case.
Correction: A previous version of this article incorrectly described Erik Jaffe’s role in the D.C. bump stock court case. He represents the plaintiffs.
Reuters contributed to this report.