Link to argument here.
[url]https://www.ca10.uscourts.gov/oralarguments/19/19-4036.MP3
https://www.courthousenews.com/gun-e...ump-stock-ban/
DENVER (CN) – Machine guns are prohibited under federal law. But what about bump stocks, a plastic accessory that can make a perfectly legal semi-automatic weapon behave like a machine gun?
A bump stock is attached to a semiautomatic rifle at the Gun Vault store and shooting range on Oct. 4, 2017, in South Jordan, Utah. (AP Photo/Rick Bowmer)
One Utah man is challenging the bump stock ban enacted by the Bureau of Alcohol Tobacco Firearms and Explosives, which falls under the U.S. Department of Justice, arguing it takes an act of Congress to ban bump stocks, not a bureaucratic agency.
In the elaborate wood paneled courtroom on the second floor of the Byron White Courthouse in downtown Denver, W. Clark Aposhian asked a panel of federal appeals judges Wednesday to allow him to keep his bump stocks while he challenges the ban adopted by the ATF.
Chairman of the Utah Shooting Sports Council, Aposhian sued the bureau in January 2019 after the Trump administration instituted a rule change that categorizes bump stocks as machine guns. The move effectively banned people from owning them.
The rule change came in response to the 2017 massacre at a country music festival in Las Vegas, where a man killed 58 people and injured hundreds more using a bump stock device.
But it was a pivot from previous policy which distinguished bump stocks from machine guns. According to attorney Caleb Kruckenberg with the DC-based law firm New Civil Liberties Alliance, who represents Aposhian, the agency had it right the first time.
“The ATF was correct when it found it did not have the authority to enact such a ban. The ATF has recognized it has no substantive rulemaking power,” Kruckenberg argued. “There is no ambiguity. The statute makes it clear the difference between a machine gun and a non-machine gun is manipulation of the trigger.”
Kruckenberg argued human hands are needed to keep a bump stock-equipped gun firing, which means it is regulated under the existing automatic weapon ban.
Both parties agree the law is clear but read it quite differently.
“If someone is going to be criminally prosecuted, it’s under the statute not the regulation,” countered U.S. Attorney U.S. Attorney Brad Hinshelwood.
U.S. Circuit Judge Mary Beck Briscoe pushed back.
“The ambiguity issue is lurking. I’m not clear what automatic means,” the Bill Clinton appointee said. “I’ll give you a shot [to define it], no pun intended.”
Hinshelwood explained a device qualifies as a machine gun if a single function of the trigger leads to continuing fire.
“There are all manners of creative devices people use to try to skirt around the statute’s meaning of machine gun,” Hinshelwood added.
U.S. Circuit Judge Joel Carson III, appointed by President Donald Trump, pressed this point.
“What if I don’t have a bump stock, but I have a gun that I can pull the trigger on 300 times in a minute?” Carson asked.
“Then it’s not a machine gun,” Hinshelwood said. “You won’t turn yourself into a machine gun. The point is once the shooter sets the conditions and pulls the trigger, [with a bump stock] the weapon continues to fire.”
Carson continued to run through the possibilities.
“My definition of a machine gun may differ from the statutory definition,” Carson said, his chin on his hands. “I see a bump stock and it looks like a machine gun, but I’m having issues squaring the language.”
Aposhian purchased his Slide Fire device in 2014, described in his appeal as a “hollow shoulder stock intended to be installed over the rear of an AR-15” and “intended to assist persons whose hands have limited mobility to ‘bump-fire’ an AR-15 type rifle.”
Under the ATF’s ban, anyone caught in possession of a bump stock can face criminal charges and up to a decade in prison.
U.S. Circuit Judge Nancy Moritz, a Barack Obama appointee, rounded out the panel. The judges did not indicate whether they will allow Aposhian to hold onto his bump stock while the U.S. District of Utah considers the rest of the case.
This case is all about the record that was developed. See
https://www.federalregister.gov/docu...k-type-devices
According to this record, the law itself was not changed. The record indicates that ATF clarified the meaning of two terms in the law and that led to the determination that bump-stock-type devices are now considered machine guns under the law.
The job of the lawyer is to demonstrate, using the record, why the ATF clarification is not reasonable. You cannot just explain why your interpretation is reasonable.
The record appears to read just like the subsequent cases that were filed and most 2A cases for that matter. The plaintiffs present one side of the issue. The government presents a different side of the issue. The government wins because the plaintiffs fail to demonstrate that the governments position is unreasonable.
This case enbanc decision by The Chevron test is
Quote:
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First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
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Of course there is "I will Not Comply"
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