Sixth Circuit Panel Rejects Bump Stock Ban (Again)

A three-judge panel concludes that bump stocks cannot be considered machine gun parts under the rule of lenity.

Today, the U.S. Court of Appeals for the Sixth Circuit decided Hardin v. BATF, concluding that a bump stock is not a machine gun "part" prohibited under federal law. Judge Gilman wrote for the court, joined by Judge McKeague. Judge Bush concurred in the judgment.

Here's how Judge GIlman summarizes the court's conclusions:

The placement of a bump stock on a semiautomatic rifle causes the rifle to function essentially like a machinegun by dramatically increasing the rate of fire. And the possession of a machinegun is a criminal offense under the Gun Control Act of 1968. This raises the question of whether a bump stock is a machinegun "part" as defined by the National Firearms Act of 1934. The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."

An Act of Congress could clear up the ambiguities, but so far Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin.

Judge Bush wrote separately to express his view that the government should lose even without the rule of lenity. His separate opiion concurring in the judgement reads:

I agree that the district court's judgment should be reversed. At a minimum, as the majority opinion holds, the National Firearms Act of 1934 admits of an interpretation that excludes a bump stock from the definition of a "part" of a "machinegun" under that statute. Indeed, this is the original interpretation that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) gave to the statute. See ATF Rule 2006-2 at 2; 27 C.F.R. §§ 478.11 (2014), 479.11 (2016). That ATF later changed its views in order to ban bump stocks does not render unreasonable the ATF's first reading of the statute. Indeed, the ATF's first take aligns with the views of numerous judges on this court and elsewhere who have considered the relevant statutory text. See, e.g., Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 910 (6th Cir. 2021) (Murphy, J., dissenting), cert. denied, 143 S. Ct. 83 (2022); Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc), petition for cert. filed (April 7, 2023). Therefore, even accepting (as does the majority opinion) that the statute could reasonably be read either way as to the legality of bump stocks, the statute must be read under the rule of lenity to exclude a bump-stock rifle from the definition of a machinegun. See United States v. Granderson, 511 U.S. 39, 54 (1994); Jones v. United States, 529 U.S. 848, 858 (2000) (if there are two possible "readings of what conduct Congress has made a crime," the "harsher alternative" reading should be rejected because "Congress should have spoken in language that is clear and definite") (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 22122 (1952)). That is the import of the majority's reasoning.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF "the power to expand the law banning machine guns through [the] legislative shortcut" of the ATF's rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

This is not the first time a Sixth Circuit panel ruled that bump stocks are legal. A prior panel reached the same conclusion (albeit on somewhat different grounds) in March 2021. The court then granted rehearing en banc, and split 8-8, affirming the original trial court's judgment in favor of the government without opinion. It will be interesting to see whether this case also gets an en banc rehearing.

Comments

[Brett Bellmore]

It will be interesting to see if all the people who were forced to dispose of their bump stocks to avoid being declared felons ever get compensated.

I agree, you don't have to resort to the rule of lenity; They simply aren't machine gun parts under the terms of the statute, period. Which is why the BATF, no particular friend of gun owners, originally held them not to be such.

I continue to believe that the bump stock ban was a throw away gesture, and that the BATF was as shocked as anybody when the courts upheld it.

Incidentally: "BATF", not "ATF", for all that the BATF has long had TLA envy. As the old joke goes, "You can't drink them, you can't smoke them, and you can't fire them."

[Dr. Ed 2]

I was going to ask about the compensation of those who turned them in because of what would be illegal orders from state and local authorities. What part of the 5th Amendment doesn't apply here?

[John F. Carr]

In the Tort Claims Act the government has disclaimed liability for damage resulting from "detention of goods". This was probably meant to apply to spoiled food. Its scope as interpreted is very broad. The insurer of a fancy sports car was out of luck when a government agent took it joyriding and crashed it. (Federal law.) The owner of jewelry was out of luck when city police stole it. (Massachusetts law protected the city and the blue wall of silence protected the individual who stole it.)

[Noscitur a sociis]

Incidentally: “BATF”, not “ATF”, for all that the BATF has long had TLA envy. As the old joke goes, “You can’t drink them, you can’t smoke them, and you can’t fire them.”

Don’t you mean BATFE?

[hoppy025]

It's too little too late. Why is it that these courts never manage to grant emergency relief when it comes to guns?

By the way, this is exactly why I've told people not to destroy or otherwise get rid of their braces.

[John F. Carr]

MADtv had a brief segment on what really went on inside BATF. Drunk agents smoking and shooting.

[hoppy025]

If they were shocked that the court upheld it, they were stupid.

Volokh wrote on this years ago. Pre-Bruen, the Circuit Courts were applying a standard weaker than even rational basis.

https://volokh.com/2013/03/21/fourth-circuit-upholds-maryland-restrictive-licensing-system-for-gun-carrying/

[Brett Bellmore]

Incidentally, under the history and tradition test, even if bump stocks did make guns into machine guns, they should be legal, because the bans on civilian ownership of machine guns are all far too recent to be legitimate. Not that I think the Court is ready to go there, yet.

[Absaroka]

I sure hope not. A few videos of mass shooters going full-auto, or using grenades or claymores, and the 2nd will be repealed forthwith.

I also don't see how bumpstocks qualify as being useful for either self-defense or militia duty.

[Frank Drackman]

A bumpstock equipped rifle wouldn't be my first choice, but it'd be better than nothing.

[Dr. Ed 2]

How many people die from GSWs and how many people die from Opiate overdoses, notably Fentanyl?

And you can build your own Claymores -- two Muslims from Chechnya did that a decade ago at the finish line of the Boston Marathon.

And how many babies have died from abortion in the past 50 years?

It's more how the question is spun than the actual number of lives lost.

And am I the only one who thinks that we weren't exactly told everything about the perp with the bump stock in Nevada? Yes, I know that sources & methods need to be protected, but I still think we could have been given a bit more as to why the heck he did it...

[Brett Bellmore]

I don't think bump stocks are particularly useful. I'll admit I tried out a Hellfire trigger years ago on my Calico, with a 100 rnd magazine full of tracers at dusk, and it was cool as hell. It was also hellaciously expensive on a dollars per second basis, so I never did it again.

Both bump stocks and hellfire triggers have been on the market for decades now, and you've got, what, one, count 'em, one mass shooting where maybe one got used? It seems even mass murderers don't think they're practical. (Maybe just because Neo didn't use one in the Matrix movies?)

Anyway, no, actually the 2nd amendment would not be repealed if somebody committed a gruesome murder with a weapon legalized on account of the 2nd amendment being upheld. Because, you know, most people actually are not nutcases who think rights should be abolished if anyone anywhere abuses them.

[Dr. Ed 2]

You raise two interesting points.

First, my understanding is that the AR-15 is an intermediate range weapon -- it isn't a sniper rifle -- you want a bolt action rifle for accuracy at distance because (I believe) of how it chambers the round. And with a bump stock, any concept of accuracy goes out the window.

So how many rounds did the perp actually get on target?

Which goes to my second point, outside of immediate point blank range, it is a lot more difficult to hit someone than a lot of people realize, particularly if they are moving. A slight angle of variance over a thousand feet (or even a crosswind) can become missing the target by 50-100 feet.

[Brett Bellmore]

Well, the Vegas shooter had the advantage of firing into a tightly packed crowd. So he hardly had a lot of need of precise aimed fire.

Still, while we know he HAD a bump stock on one of his many guns, it has never been established, that I know of, that he actually used it. Of course, there's a remarkable amount about that incident that remains a mystery. Rather like the Nashville killer's manifesto...

[Frank Drackman]

What Nashville Killer? What Manifesto?? That ones being covered up like that whole Paul Pelosi and his Escort case, they probably found out the Dude (I forget now, was the Nashville killer a dude who transitioned to Dud-ette, or the other way around?) was diddled by Senescent J or daddled by Hunter (both do a lot of diddleing and daddling)

[Dr. Ed 2]

While he had the advantage of height, has anyone ever published the actual yardage from his window to the dance area? I'm thinking some degree of precision would be needed to hit the area

[Frank Drackman]

Try AlGores Internets, I hear the kids call it Google Earth

[John F. Carr]

I find different distances in the ballpark of 1,000 feet. Deaths and injuries from gunfire add up to about half as many bullets as were fired.

[hoppy025]

The hotel was a little more than 1,000 feet from the festival. That's not far at all for pretty much any rifle caliber cartridge.

[hoppy025]

Of all of the mass shootings, this ones screams "false flag" the most.

[Maz2331]

Here's a strictly technical note.

Actually, that "intermediate range" is more a side effect of the ammunition caliber. The original AR-15 design is chambered in the 5.56x45mm NATO cartridge, which is identical in nearly all respects to the .223 Remington. The bullet is roughly 1/3 the mass of the previous military standard 7.62x51 (also known as the .308 Winchester). In the standard military loads, both cartridges launch a pointed full-jacketed projectile at around 3000 feet per second. The bullet is spun around its axis to create gyroscopic stability in flight.

Upon impact such a bullet design can not maintain stability while penetrating, as gyroscopic stability is related to the density of what the bullet is traveling in, with flesh (or even just water) being close to 1000 times more dense than air. The rear is heavier than the tapered front tip, and center of gravity vs center of pressure causes forces that result in the bullet trying to turn to a base-forward configuration. The 5.56 bullets have a very thin jacket, and the turning results in massively increased drag and stress on the bullet, causing it to fly apart. This is called fragmentation, and greatly magnifies the wound severity.

Beyond around 200 yards, the 5.56 loses enough velocity that its bullets no longer reliably fragment on impact. Other bullet designs such as soft point or hollow point, will instead deform into a mushroom shape such that the center of gravity moves forward and the bullet penetrates without turning.

There is also no inherent accuracy difference between a semi-automatic or bolt-action rifle designs. With equal quality barrels and sights, both will shoot accurately at the same distances.

[Kazinski]

I'm not quite sure a semiautomatic has no effect on accuracy.

Does the gas block in the barrel diverting some of the gas into the piston cause any barrel wobble before the bullet leaves the muzzle, or does it reduce the velocity especially in a longer barrel that a sniper rifle would have.

[Rossami]

Your first and fourth paragraphs are okay. Your comments about "stability while penetrating" are based on claims made in the early days of the M16 procurement process - claims that have since been rather definitively debunked. 5.56 bullets do not appreciably tumble (nor to other similarly shaped bullets) in either water or flesh. And fragmentation, when it occurs, is not a function of that behavior.

[Magister]

Because, you know, most people actually are not nutcases who think rights should be abolished if anyone anywhere abuses them.

Counterexample: Dobbs. It doesn't take a majority of nutcases, if they're in the right position.

[Michael P]

Grenades and land mines are destructive devices within the meaning of the National Firearms Act. To the extent that there is any history or tradition there, I suspect it is to treat the latter like (prohibited) booby traps.

[Brett Bellmore]

But the National Firearms Act was enacted well after the window closed on Bruen's history of traditional gun laws, so in theory it shouldn't count.

And the original NFA wasn't enacted as a ban, because they knew it wasn't constitutional for the federal government to actually ban guns. It was just a punitively high tax, which was upheld by the Supreme court on the basis of NOT being a ban, which WOULD have been unconstitutional.

Sonzinsky v. United States, 300 U.S. 506 (1937)

"The tax upon dealers, supra, is not in the category of penalties imposed for the enforcement of regulations beyond the scope of congressional power.

...

Courts may not inquire into the motives of Congress in exercising its powers; they will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution."

[Dilan Esper]

One of the problems with a pure history and tradition test is that if you take it seriously, you have to credit the existence of rudimentary kinda-automatic weapons (like the Henry Repeating Rifle) in the 19th Century as proof that there was a tradition of non-regulation of such weapons, when in reality as soon as they became a problem, during Prohibition, machine guns were effectively banned.

Of course, I don't personally mind a history and tradition test IF THE COURT WOULD TAKE THE MILITIA LANGUAGE SERIOUSLY. I.e., yes, I'm even OK with Brett and his friends owning automatic weapons if training and service to the state and discipline and registration and regulation are part of the deal. That's what the Second Amendment actually contemplates.

But as long as we are in Libertarian Hell, it would be suicidal to establish a constitutional right to machine guns.

[Bob from Ohio]

the Henry Repeating Rifle was not in any way a "kinda-automatic" weapon. It was a lever action rifle, you had to use the manually operated cocking handle to advance each bullet to fire. No different than the later Winchester.

Didn't you ever watch The Rifleman?

[Kazinski]

I've got a few lever action rifles, including an 1866 Yellow Boy replica. It's a little faster than a bolt action, but definitely slower than a semiautomatic, but still I can fire a round a second for 13 seconds, then take at least a minute to reload.

I kind of had a thought for one of my other lever actions, like my .357, about what it would take to modify it to replace the tube with a drum magazine with 50 or 100 rounds. Still wouldn't be even a semiautomatic though, just a much heavier lever action with a lot more rounds.

It would still be a great conversation piece however impractical.

[Brett Bellmore]

Oh, I want the Court to take the 2nd amendment, the whole 2nd amendment, very seriously indeed.

But the preface doesn't at all imply what you think.

Even absent the 2nd amendment or its preface, Article 1, section 8, clause 15 reads, [Congress shall have the power...]
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

Clause 16 reads, "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

So, totally without the 2nd amendment, the government can legally demand that you be armed, legally demand that you train with those arms, legally demand that you show up with those arms to do military service on demand. Really, then, why do you think they'd build any such requirement into the 2nd amendment?

It's a right. Grammatically, the preface explains why the right is important to guarantee. And in so doing provides some indication of the nature of that right: It's a right to arms suitable for military purposes. As the Miller Court recognized.

What the 2nd amendment does is prevent the government from conditioning that ownership on compliance with its demands, because it's a right, not a "privilege".

And this was deliberate, because the point of the 2nd amendment was to prevent the government from deliberately undermining that necessary militia system by suppressing gun ownership.

So, yeah, enforce the whole thing. I wouldn't mind one bit having an M4.

[Dilan Esper]

"It's a right" is junior high school reasoning. Seriously. It's that simplistic.

The Constitution is full of rights that are qualified and contextualized. The Establishment Clause and the Free Exercise Clause work together. So do free speech, free press, and the right to petition. Cruel and Unusual Punishment and Excessive Fines work together as well.

And the Second Amendment works together with the militia clause. The idea was everyone was going to be in the militia. Why do we know this? Because the same people who passed the Second Amendment also passed the Militia Act that said everyone was going to be in the militia. And that same statute imposed lots of training and discipline requirements. Meanwhile as you point out the 1787 Constitution contains all sorts of provisions permitting state and federal coercive control over the militias.

But somehow the framers' invocation of a well regulated militia, IN THE PREFACE OF THE SECOND AMENDMENT, means NOTHING? I'm sorry, only a complete idiot or a complete ideologue would believe that.

Yes, it's a right. Heller was rightly decided. But it's a right that arises in the context of grave responsibilities that gun owners owe to serve the nation. If Congress or the states were to call you guys up, regulate you, and force you to train and drill and register your weapons, not only could they take your guns away if you refused to comply, but they could even try you and put you in prison if the proper statute were passed.

So yes, it's a right. And I even agree with you it could and perhaps should extend to military weapons. But it's also subject to all the regulations that a "well regulated militia" would permit. It's not "we're free to act like complete idiots and have a violent, paranoid gun culture". It's "we're free to be armed but owe substantial obligations to the state and the community as part of that deal".

[Bob from Ohio]

"same people who passed the Second Amendment also passed the Militia Act that said everyone was going to be in the militia"

Same people who passed the 14th Amendment also passed a law segregating DC schools. Sometimes inconsistent things get done.

[Dr. Ed 2]

No, Woodrow Wilson did that.

[Brett Bellmore]

Sophistry generally IS more sophisticated that just straightforward reasoning. That doesn't make it better.

"But somehow the framers’ invocation of a well regulated militia, IN THE PREFACE OF THE SECOND AMENDMENT, means NOTHING?"

Of course it doesn't mean nothing. It means that the right is a right to military arms. But it's just that: A right to military arms, not a privilege. You do understand the concept of a "right", don't you? A "right" is precisely what you don't need permission from the government to exercise.

That's inherent in the concept; If they'd meant for exercise to be conditional on doing what the government told you to, they wouldn't have called it a "right".

[Dilan Esper]

So you want all of the benefits of being in the militia with none of the responsibilities.

And that, in a nutshell, is why so many Americans die of gunfire every year.

[Brett Bellmore]

Again, try reading the amendment. I know you're capable of it. You just don't like what it actually says.

Being in the militia has no benefits. It is ALL responsibility. You can be compelled to own a gun and ammunition. You can be compelled to practice regularly. You can be compelled to subject your self to military discipline. You can be compelled to fight for the government. EVERY aspect of militia membership is a responsibility, not a benefit.

It's being in the People that has the benefits. Not being in the Militia.

The distinction is important, because the government decides who is in the Militia, unlike the People. So if gun ownership were a benefit of being in the Militia, the government could take that benefit away.

Try to understand this: The founders thought that the militia system was so damned important, that they wanted to make sure it would remain viable even if the government itself wanted to abolish it.

To that end, they wrote an amendment guaranteeing the right of the People, deliberately NOT the Militia, to keep and bear arms, so that in an emergency a militia, already armed and familiar with those arms, could be raised from the people, even if the government had wanted to make this impossible.

Because, maybe a well regulated (equipped and trained) militia is necessary to the security of a free state, but what if the people in charge of the government no longer want that freedom to be secure?

[Kazinski]

I certainly do take the militia language seriously, it just doesn't mean what you claim it means.

The Article 1 militia clause already do everything you claim the second amendment does. So the only possible reason for the prefatory clause is to refer back to Congress Article 1 power to justify a Constitutional ban on infringing the RKBA.

As the Miller Court said:
"The Constitution as originally adopted granted to the Congress power—'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, § 8.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration AND guarantee of the Second Amendment were made."

Clearly the Miller Court saw the guarantee in the second amendment as independent of the militia clause.

They went on to clarify that that right was not dependent on being in service, whether active or on leave:
"And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Miller is still good law and the only real expansion Heller added was that looking at history and tradition, self defense was also a core element to the already protected RKBA.

[Dilan Esper]

Unless the Second Amendment's "militia" is a completely different one than in the rest of the Constitution (which is stupid), no, the preface of the 2A works exactly as I say.

The problem is a lot of gun rights activists are "I can do whatever I want" anarcho-libertarians who refuse to accept that this right comes attached to responsibilities.

[Kazinski]

Tell me one thing the 2nd amendment does under your interpretation that the article 1 militia clause doesn’t do?

There is nothing it does under your reading of the 2nd. So your reading is obviously wrong.

You say: “If Congress or the states were to call you guys up, regulate you, and force you to train and drill and register your weapons, not only could they take your guns away if you refused to comply, but they could even try you and put you in prison if the proper statute were passed.”

Article 1: “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Everything you say the 2nds militia clause does is all already in article 1 in considerably more detail. Every bit and more. Which makes your argument completely incoherent.

The meat of the 2nd is “the right of the people to keep and bear arms shall not be infringed”, not in a redundant restating of Congress’ already clear existing power.

As for what the militia is, as both the first Congress and the Miller court said its: "These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense", whether organized or in organized.

[Dilan Esper]

It isn't a redundant restating. It's saying that the Second Amendment goes hand in hand with the powers over the militia and should be interpreted in concert with it.

[Toranth]

How do you convert "the people" into "a militia" in your 'logic'?

[Dilan Esper]

The Second Amendment does that for me.

[Kazinski]

Well I guess you can live peaceably on your little island a forlorn holdout of a lost war.

I realize it's more emotional than rational for you, so rational argument isn't going to sway you.

[Toranth]

Where does it say that "the people" means "the militia" and only "the militia"?
I'll save you time lying: It doesn't.

Just like "The people" elsewhere in the Constitution is not limited to the militia, or other government subgroups.

It's typical absurdist gun-grabber logic to insist that the government wanted to make sure that the government wasn't restricted from being armed.

[Kazinski]

We're I ever in some venue attacked by a mass shooter with an AR-15, I'd thank my stars if he had added bumpstock to his rifle, because he won't be able to aim it, more than in a general direction and he'll waste 2/3 of his ammunition.

The LV gunman was a pretty unique situation, but I don't think the casualties would have been lower if he didn't have a bumpstock.

[hoppy025]

Is there any evidence that full auto fire would be more destructive in a mass shooting than a semi-auto? I doubt it. Full auto tends to dump the whole magazine so quickly that the shooter runs out. There's a reason that the military switched to burst.

[Frank Drackman]

Machine guns have only been "Banned" in several of the several states, they're actually one of the only guntypes that ATF issues a form saying it's legal for you to have others being those e-ville short barreled rifles and shotguns (OK, and "Cane Guns" which if there's anyone evil enough to bother a person using a cane, you deserve to get shot with it)
Surprisingly, you can own a machine gun in Vermont, but not Iowa (What the heck's the matter with Iowa??)

Frank

[Kazinski]

The history and tradition test aren't the only tests the supreme court has said will apply, there is the Supreme Court's own precedent, Miller. Miller upheld the NFA, and I don't think there is a single member of this court that has any desire reverse Miller.

Miller, Heller, McDonald, and Bruen together make a 2nd amendment porridge that's plenty hot enough for the court, but not scalding or completely cold.

[Brett Bellmore]

Miller was a deliberate set up trial in absentia, where only the government's side was argued, and the Court upheld the NFA on the basis that nobody had demonstrated to the Court a fact that everybody on the Court was personally aware of: That short barreled shotguns had military uses.

Not the sort of basis that you'd want to rely on for upholding a ban on machine guns, I should think.

[Kazinski]

Well, I used to believe that too, but its not quite the case, although of course the court would never decide a case today with that procedure.

But look at the holding, the court didn’t issue a final result: “We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The case will be remanded for further proceedings.”

It was basically a GVR, which happens all the time even on today’s court without appearance by counsel, although they make sure both sides submit briefs. So Miller would have a chance to be heard when the case reheard at a lower level, and the Supreme Court only ruled on a matter of law not Miller’s guilt or innocence. So Miller was definitely not "tried in absentia" by any definition.

In any case I didn’t say I would rely on Miller to uphold either a machine gun ban or a sawed off shotgun ban or a SBR ban, I said the Supreme Court would, and you’d be a fool to argue otherwise.

[Brett Bellmore]

Miller was DEAD when the Supreme court heard the case. You do know that, right? Even before that, he went into hiding as soon as the lower court had released him. There was no chance at all that the government would be opposed in those "further proceedings".

The Miller case has been researched extensively: It was a deliberately constructed test case for the NFA, specifically designed to make sure that only the government's side would be heard before the Court. A total setup.

Not saying the modern Court would strike down such a ban. They don't have THAT much integrity. I'm just saying they would if they followed the principles they announced.

[bernard11]

Which illustrates the stupidity of the history and tradition test. Again.

[Kazinski]

Yeah actually that’s wrong though, it mistates what the test is it's 'text and history', Thomas, writing for the majority: “Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history.”

Or as the Syllabus puts it more authoritatively ruling out claiming it’s dicta: “The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history.“

[Noscitur a sociis]

The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."

I'm glad they reached the correct result, but this assessment is borderline-incomprehensible to me. The statute has a very clear definition of machinegun, and it clearly doesn't cover bump stocks.

Now, as a policy matter, I think it's fair to conclude that a rifle with a bump stock functions so similarly to a fullly automatic weapon that it should be regulated the same way. But short of wishful thinking, I don't see how you can conclude that it is regulated the same way under the NFA.

[Frank Drackman]

You are Correct Sir! (HT E. McMahon) if a bumpstock is a "Machinegun" than so is my finger

[Brett Bellmore]

The problem with that perspective is that you can get the same effect just by holding the rifle properly; The bump stock just makes that loose hold easier to achieve.

So by that theory every semi-auto rifle is a machine gun, if you just hold it right.

[hoppy025]

I've done it with a rubber band. Not a 5.56, but a 9mm AR-style carbine. It's not that difficult.

[Nige]

Wasn't banning bump stocks Trump's pitiful and half-hearted response to the Las Vegas massacre? Always worth remembering how blood-soaked this shit is.

[Brett Bellmore]

He got the NRA to sign off on it first; Seems they were in the mood to throw more of their members under the bus again in a futile attempt to appease gun controllers, so they said, "Fine, go for it!"

[Nige]

Not as fine as they are with people being massacred, obviously.

[hoppy025]

No one is "fine" with people being massacred, but your "cure" is far worse than the disease.

[Nige]

Of course you're fine with them. Your hobby and gun industry profits are way more important.

[hoppy025]

Everything you people claim is steeped in bad faith. First, gun industry profits are low. Smith & Wesson makes about $60 million in profits a year. Compare that to MSFT which makes 1400 times that to promulgate leftist filth. Same with Google and Facebook.

Second, if you were really that concerned with gun industry profits, why do you throw a fit when red states prohibit crime guns from being destroyed, and instead require them to be auctioned? destroying a perfectly good gun because it was used for something evil just increases gun industry profits, because they have to make a new one to replace it. Which is it, you dishonest piece of shit?

Third, if you were really concerned with violent crime, you'd target your efforts toward your pet illegitimate black males. But you aren't, so you don't.

[Nige]

I wonder of all the mass murders are gaving an affect on gun sales? Poor gun industry.

I expect it's because states awash with guns are made even more awash with them when those guns are put back in circulation.

Yeah, black communities are terrorised by gun crime enabled by the country being awash with guns.

[hoppy025]

WTF are you blabbering about?

[Dr. Ed 2]

Bleep the NRA...

[Brett Bellmore]

It's a constant battle keeping the bastards from compromising, that's for sure. They were all set to transform the NRA into a historical society with a nice museum where members could go to see the guns we could no longer legally own, until the membership revolted and took over for a while. And forced them to dig in and defend those rights, instead.

When the leadership struck back in Philly, and gutted the membership's ability to democratically control things, they started reverting to type.

[Frank Drackman]

Yes, Nevada should pass a law banning First Degree Murder

[Kazinski]

My thought at the time on bumpstock was that an element of the longstanding debate on guns is that machine guns are already illegal, despite occasional claims to the contrary, and constant efforts to mislead on the issue, so banning something that does mimic a machine gun wouldn't violate any of my principles.

However the law is the law, and since misreading the constitution is the lynchpin of gun control, misreading the law should hardly be countenanced either.

There are a lot of people that do think there is a "safety" exception to the Bill of Rights, guns aren't safe, vaccine dissent isn't safe, following the 4th amendment rigorously isn't safe (the courts have bought in to this one extensively for both physical and electronic searches), opposing trans surgeries for minors isn't safe (it's so dangerous people need to have their children taken away in some states). A "safety" exception isn't a slippery slope for our constitutional rights it's a cliff.

[Nige]

Acknowledging that all these put people in serious danger is a start.

[Kazinski]

And the end.

[Nige]

For a lot of those people, yes.

[Brett Bellmore]

"machine guns are already illegal, despite occasional claims to the contrary,"

You'll get occasional claims to the contrary because they're NOT already illegal. They're 'just' really, really heavily regulated.

Now, granted, to the point where you can barely slide a sheet of paper between that point and an outright ban, but 1-200K have slipped through that gap.

[hoppy025]

Eventually, they were will practically be, as the number of pre-1986 machine guns that still work will dwindle each year.

Although I suppose if you have an NFA registered full auto lower/sear, you can replace the rest it.

[Brett Bellmore]

In fact, you can take a non-functioning pre-1986 machine gun, and make it functional, you just have to pay the tax and do the licensing. So if you even had a piece of the sear, you'd be good to go.

Granted, there's an upper limit on the number of pre-86 guns, that is gradually declining as they get lost or totally destroyed. I tend to think the whole issue will be resolved one way or the other long before that's a significant problem, either by the '86 ban finally being repealed/overturned, or an anti-gun administration manufacturing a chance to confiscate them.

[windycityattorney]

"First you take the guns, then you give the process." DONALD JOHN TRUMP 2nd amendment defender extraordinaire.

[Rev. Arthur L. Kirkland]

If gun enthusiasts don't devise and implement a better system of gun safety regulation, better Americans will do it for them.

Losing a culture war has consequences . . .

[Frank Drackman]

Come and take it

[Frank Drackman]

I mean my guns, not a cock up the ass like you do everyday

[Rev. Arthur L. Kirkland]

How are your alleged "civility standards" coming along, Prof. Volokh? Are they still asserted as a reason to censor commenters who poke fun at or criticize conservatives?

[hoppy025]

You need a better system of avoiding spreading HIV when you penetrate little boys.

[Krayt]

An Act of Congress could clear up the ambiguities, but so far Congress has failed to act.

The rest is policy argument that’s N/A to this issue.

Just like lawyer sounds close to liar, so, too, does Congress sound close to cowardice.

Boy, my bonnet is full of bees today. I am just full of piss and vinegar!

I wonder if someone will dig out a young Joe Biden clip of him bitching how old Reagan is and how he shouldn’t be president. Or other Democrat, of which there was sufficient criticism it lead to a decent Reagan joke during a debate.

[QuantumBoxCat]

If ATF repeals its bump stock rule then hypothetical doctors, at some hypothetical point in the future, may have to devote resources to treating hypothetical patients injured from a firearm equipped with a bump stock. In the Northern District of Texas, that should confer standing.

[Rev. Arthur L. Kirkland]

"Bulletproof," one law professor might say.

[Frank Drackman]

No such thing as bulletproof

[QuantumBoxCat]

Try telling that to La Roux

[Frank Drackman]

Is that the fat chick who did that awful "All about that Bass"??

[QuantumBoxCat]

.

[Bruce Hayden]

What’s going to be interesting is what happens when the ATF tries to implement its ban on braces (for AR type firearms). Probably millions out in the public. The ATF for years approved them, then Biden said to make them illegal, and they obliged. How is that not arbitrary and capricious, and therefore fatal to their APA defense? Shouldn’t the Rule of Leniency also apply to braces? Then there is the ADA reasonable accommodation to disabilities argument.

[John F. Carr]

While mistake of law is usually not a defense, one can argue reliance on an interpretation by a government official whose job is to interpret the relevant law.

Federal tax law is an exception in both cases. The IRS says don't trust the employee on the phone with you. That's bad. Tax crimes normally punish intentional and not accidental violations of tax law. That's good.

[Bruce Hayden]

But how can you make that argument when an Executive Branch employee makes such a decision after being ordered to by their boss, the President? Absent significant evidence to the contrary, it should be presumed that agency interpretations that appear to be in response to political decisions by the President are not based on agency expertise, but rather political considerations, and are thus arbitrary and capricious, and thus potentially violative of the APA.