Mass Shootings

Relying on the Same Illogic That Trump Used to Ban Bump Stocks, a New Lawsuit Argues That Customizable Rifles Are Illegal

The plaintiffs say manufacturers broke the law by producing rifles that were compatible with accessories that facilitate rapid firing.

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A new lawsuit against the manufacturers of guns used in the 2017 Las Vegas mass shooting claims that AR-15-style rifles are illegal because they are compatible with bump stocks, which increase their rate of fire. The plaintiffs, parents of a woman who was murdered in the Las Vegas massacre, argue that bump stocks like the ones used in that attack convert semi-automatic rifles into illegal machine guns—a position that has been endorsed by the Trump administration. Therefore, they argue, AR-15s are themselves illegal, since the federal definition of machine guns includes firearms that "can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger."

That claim is important, since the 2005 Protection of Lawful Commerce in Arms Act, which generally shields gun makers from liability for crimes committed with their products, includes an exception for "an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product." And while the complaint (for reasons that will become clear) does not mention the Trump administration's extralegal administrative ban on bump stocks, the logic of that policy reinforces the plaintiffs' central argument.

Since 1986 federal law has banned the production and sale of new machine guns, including weapons that can be readily converted into machine guns and parts used for that purpose, for civilian use. During the Obama administration, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) concluded on several occasions that bump stocks, which facilitate a firing technique in which the rifle moves back and forth, repeatedly resetting the trigger and pushing it against the shooter's stationary finger, do not turn rifles into machine guns.

The reason is clear. A rifle equipped with a bump stock does not automatically fire more than one shot for each function of the trigger. It fires one round each time the trigger is activated, and the process is not automatic, since the shooter has to maintain forward pressure on the weapon and keep his finger in position.

Notwithstanding that reality, Donald Trump, in response to the Las Vegas massacre, decided he could ban bump stocks by administrative fiat—the approach favored by the National Rifle Association. He instructed the Justice Department, which includes the ATF, to come up with a rationale, which required defining "function of the trigger" as "pull of the trigger," defining a trigger pull so as to exclude what happens during bump firing, and treating the shooter as part of the rifle mechanism.

The Nevada lawsuit, which was filed in the District Court of Clark County, omits that part of the story, since the fact that the ATF repeatedly said bump stocks were legal before reversing itself under Trump's orders after the Las Vegas attack weakens the case that manufacturers knew before then that they were breaking the law by producing guns that could be equipped with bump stocks. Instead the plaintiffs argue that manufacturers were aware that their guns were compatible with bump stocks and should have recognized that meant they could be readily converted into machine guns, even though the ATF had concluded otherwise.

In light of the bureaucratic history that the lawsuit glides over, that argument is highly dubious. But going forward, if you accept the Trump administration's view of bump stocks, it is at least superficially plausible to maintain that AR-15s are now illegal, since they can be readily equipped with such accessories. In an interview with The New York Times, Lawrence Keane, general counsel for the gun industry's National Shooting Sports Foundation, noted that an AR-15 is "customizable, but the underlying semiautomatic action is not altered." That's true, but it does not matter under the Trump administration's unilateral redefinition of machine guns.

Indeed, the logic of Trump's ban suggests that any semi-automatic rifle is now illegal, since bump firing does not require bump stocks. The ATF concedes that "individuals wishing to replicate the effects of bump-stock-type devices could also use rubber bands, belt loops, or otherwise train their trigger finger to fire more rapidly." The implication is that any semi-automatic rifle, if owned by someone who also has rubber bands, belt loops, or fingers, could be considered a machine gun.

None of that means this lawsuit will succeed. In addition to the problem of proving that manufacturers knowingly violated the law, based on an interpretation that was explicitly rejected by the federal agency charged with enforcing that law, there is the unexamined assumption that the Las Vegas attack would not have happened, or at least would have been less lethal, had the defendants not sold weapons that were compatible with bump stocks.

"The events of October 1 would not have occurred but for the Defendants' illegal
and wrongful conduct," the lawsuit claims. That proposition seems hard to defend, since this was the first time a mass shooter had used bump stocks, and such killers typically use handguns, not AR-15-style rifles. For example, the perpetrator of the 1991 Killeen massacre, which killed 23 people, used pistols, as did the perpetrators of the 2007 Virginia Tech shooting, which killed 32 people, and the Virginia Beach attack that killed 12 people last May.

It's true that the death toll in Las Vegas, which was the deadliest mass shooting in recent U.S. history, was considerably higher, and people tend to assume that bump stocks—as opposed to, say, firing from a height onto a crowd with multiple weapons and lots of ammunition—explain that horrifying achievement. "It was only a question of when—not if—a gunman would take advantage of the ease of modifying AR-15s to fire automatically [sic] in order to substantially increase the body count during a mass shooting," the lawsuit says. But given the well-known tradeoff between speed and accuracy that bump firing entails, it's possible the perpetrator could have killed as many people without bump stocks.

According to the lawsuit, the Las Vegas shooter fired 1,049 rounds in 10 minutes, killing 58 people, or one for every 18 rounds. In the 2018 Parkland shooting, by contrast, the perpetrator fired about 150 rounds in six minutes, killing 17 people, or one for every nine rounds. By that measure, the Las Vegas shooter was half as accurate as the Parkland shooter. Yet the plaintiffs in the Nevada case are implicitly arguing that their daughter would not have died if the Las Vegas shooter had taken the time to aim.

Rep. Thomas Massie (R-Ky.), who leads the Congressional Second Amendment Caucus, argued shortly after the Las Vegas massacre that bump stocks did not necessarily make the attack more deadly. "If he had been more clear-thinking and methodical about it," Massie said, "he could have inflicted more casualties by shooting his firearms without bump stocks." Assuming the Nevada case goes to trial, that issue will be tested in court, along with the claim that gun manufacturers violated a ban that did not exist until Trump decided to rewrite the law.

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  1. And I really thought the volcano would be permanently sated after that one virgin.

      1. Very astute. It never ends with them. That’s why they must be stopped.

  2. Why am I completely un-surprised by this lawsuit? (sigh) I think I will go out and buy myself some fingers, rubber-bands, and a belt-loop or two, so my Ruger 10-22 can be called a machine gun…….

    1. The 10/22 is already capable of full semi automatic fire. Isn’t that deadly enough?

      1. Yeah, and if I “fan” my .45 Blackhawk it also becomes capable of firing more than one shot with only one pull of the trigger. And a double-action revolver is also semi-automatic, firing one shot with each pull of the trigger. 🙂

      2. full semi automatic

        DNC footsoldiers mobilized immediately.

  3. If Trump was relying on the NRA to argue and defend his response to the Las Vegas shooting come 2020, his bet was poorly timed. After the fiascoes at the NRA recently, they may not have as much clout anymore. It was probably time for new leadership on the gun rights front anyway. We can’t trust the ACLU to defend our gun rights in the court of public opinion, and sometimes the NRA’s arguments look like what they’d be if the ACLU did defend gun rights–but the arguments were written by a reluctant, gun-hating intern who could only get the job nobody else wanted.

    1. I’m going to switch my donations to the Second Amendment Foundation and gun rights organizations that specialize in litigation.
      They seem to be doing more for gun rights than the groups that focus on political candidates or the culture war.

  4. Well, then my defense would be that the bump stock does nothing in and of itself, the person using it becomes an integral part of the firing reset mechanism.

    If I were to hold a bump-stocked AR-15 out to the side of my body, and press the trigger (from reaching outward from the body side, not grasping around the grip and pointing my finger in), only one shot would be fired, because the stock would not bump against my body. Therefore, the human body would also be an illegal modification

    1. But the democrats say people can’t be illegal!

    2. Read the full definition. The new definition replaces “function” with “pull”. “The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”

  5. The definition “can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger” was intended to cover what were originally full automatic firearms converted to semi-automatic that could “be readily restored” to full auto often just by filing clearance for movement of a selector switch.

    The main exception being Reising Model 50 Reising submachineguns that ATF allowed to be converted to Reising Model 60 semi-automatic carbines, which ATF deemed not readily restored to original function.

    To be restored to shoot full-automatically, it had to have originally been a full-auto.

    1. So they purposefully misinterpreted the law to ban automatic firearms?

      1. To ban SEMIautomatic firearms.

        1. Part of the problem with these discussions is that to military users “automatic” is shorthand for full-automatic or machine gun fire (more than one shot per trigger pull), while to most civilian users “automatic” is shorthand for semi-automatic or autoloading (one shot per trigger pull).

          I remember back in the 1950s Dad and I took his brother’s Remington Model 1924 “automatic” .22 rifle to the country to shoot tin cans.

      2. They were more probably ignorant of the intent of the original law than purposefully misinterpreting the law.

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  8. A semi truck is designed so that a person can put their foot on the throttle, release the clutch, and drive it into a crowded sidewalk. Hence, all semi trucks should be banned.

    An airliner is designed so that anyone with basic flying skills can fly it into a skyscraper.

    Any more examples of this idiocy?

    1. Just this one; car manufactures are responsible for all drunk driving.
      They are also responsible for all bank robberies where a car is used for the getaway.
      Q.E.D

  9. I don’t think that this approach is going to get AR-15s banned. First, and foremost, there are just too many of them out in the public in common usage. That is one significant factor in determining whether the government can ban firearm.

    One or two out of many millions has been misused with what has now, in retrospect, been defined to be a conversion to automatic fire. But banning AR-15s this way opens up a significant challenge to the NFA. The one time that the Supreme Court looked at the constitutionality of the NFA (Miller), they found it Constitutional because the offending firearm was not commonly used by our military (which was factually wrong, but that was the record they had). At that time, fully automatic firearms were not heavily used by our military, at least on an individual basis. That changed dramatically almost 60 years ago, when the M16, based on the civilian AR-15, was introduced, and since then probably most every soldier, marine etc, has been trained on this firearm. It has been their main battle rifle that entire time. So, how do you maintain the federal regulation of M16 machine guns, in light of Miller? The Militia Clause would suggest that it would be the last firearm that they could regulate under the NFA, and subsequently ban new ones. My suggestion is that this regulation/banning of the military’s main battle rifle (and carbine) has survived because the AR-15, its semiautomatic sibling, is legal. They share the same manual of arms, most of their parts, and is very close to the firearm that all former military members under maybe 75 years old, the heart of any militia, were trained with.

    Bring it on.

    1. Wasn’t Miller a *remand*? The justices said that nothing in the record indicated wether a short-barreled shotgun had any military use, and instructed the lower court to develop that?

      And the use of full-auto by our troops actually preceded the introduction of the M16; the M14 was also select fire.

      1. “Wasn’t Miller a *remand*? The justices said that nothing in the record indicated wether a short-barreled shotgun had any military use, and instructed the lower court to develop that?”

        Technically yes. However, no proceedings were ever held on remand. United States v Miller

        by the time of the Supreme Court decision, Miller had been killed and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.

  10. bUt BuMp StOcKs ArE nOt A hIlL wOrTh DyInG fOr

    1. Change your name Pat,

      “Give me liberty or give me death”

  11. What makes this so absurd is that the guns were designed that way before bump stocks were a legal product. Bump stocks weren’t on the market until 2008.

    John Browning invented his first automatic rifle when he converted a lever action rifle. If the above lawsuit proceeds, no gun that isn’t a single shot or a revolver can exist.

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  14. If Democrats spent as much time going after their sexually deviant LGBTQDFDVA crowd as they do Constitutionally protected guns, we’d have cured HIV and mental illness.

  15. AR-15s are themselves illegal, since the federal definition of machine guns includes firearms that “can be readily RESTORED to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

    Yet the most important word here – RESTORED – is totally ignored in this analysis, making it specious if not deliberately deceptive…

    1. Exactly. Restored is defined as returning to original condition using original parts. They are trying to redefine the definition into conversion (which is already illegal) similar to the classic car world’s Restomod which is returning to original looking condition using after market parts not original to the vehicle.

  16. The problem with the lawsuit is the phrase “single function of the trigger” means pulling it once and firing multiple rounds. A bump stock uses inertia to pull the trigger once for each round fired. That fact the lawsuit also refers to AR platform rifles as “weapons of war” shows the true intent and mindset of those involved. The lawsuit will go nowhere.

    1. They are trying to redefine “restore” to include “conversion” all based on the old, worn out, whining about the cosmetic appearance of the firearm.

      Hell, I wonder why they haven’t gone after the BB guns used at carnivals. You know, the ones that look like Tommy Guns and fire more than one round per trigger pull. 😉

      1. BB guns are not firearms, and are not subject to firearms laws. That’s why full auto bb guns, airsoft guns and paintball guns are all legal.

        1. “New Jersey defines all non-powder guns as firearms, subjecting these guns to all regulations and restrictions applicable to firearms. To obtain a BB or pellet handgun, a person must obtain a permit to purchase a handgun…”

          “Rhode Island defines all non-powder guns as firearms, ensuring that felons and other persons prohibited from possessing firearms are similarly barred from possessing dangerous non-powder guns….”

          “Minnesota prohibits the carrying of a BB gun in a public place. Minnesota also prohibits the display, exhibition, brandishing or other use of a BB gun in a threatening manner, if while doing so, the possessor:..”

          “North Dakota defines “dangerous weapon,” to include “any weapon that will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO[2] gun. Thus, except where otherwise specified, any law in the Criminal or Weapons sections of the North Dakota Century Code that refers to dangerous weapons is applicable to non-powder guns…”

          etc

          https://lawcenter.giffords.org/gun-laws/state-law/50-state-summaries/non-powder-guns-state-by-state/

      2. I actually won that game once. Wonder if they still have them.

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  18. […] hold that an AR-15 is illegal because bump stocks allow them to be readily restored to fire full auto. Thanks, […]

  19. […] Las Vegas families using logic from Trump’s bump stock ban by fiat to determine that all semi-auto rifles are machine guns and should be banned. […]

  20. The author neglects to mention that a semiautomatic in bump fire mode is TEN TIMES more likely to produce gunshot victims

    1. at  Parkland, Florida,
    A gunman killed 17 students and staff members and wounded 17 others between 2:21 pm and 2:27 pm

    TOTAL GUNSHOT VICTIMS WITHOUT A BUMP STOCK in 6 minutes=34 victims

    (OR 5.6 Victims shot each 60 seconds)

    MEANWHILE

    2. At the Las Vegas Strip in Nevada.
    A gunman killed 58 people and wounded 422, between 10:05 pm and 10:15pm

    TOTAL GUNSHOT VICTIMS WITH A BUMP STOCK in 10 minutes= 480 victims

    (OR 48 victims shot each 60 seconds)

    A BUMP STOCK RESULTED IN TEN TIMES THE NUMBER OF VICTIMS as a semi automatic WITHOUT A BUMPSTOCK

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