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Bump Stock Ban Back in Contention

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Bump stocks have faded from the headlines. Most in the firearms community have been outraged that a federal administrative agency could make such a radical change in the law, as to ban items the agency previous ruled were perfectly legal, without any action by Congress or the President.

In the Tenth Circuit, a legal challenge has been percolating.

On March 26 of 2018, the BATFE reversed its previous rulings on bump stocks and issued a rule change that bump stocks would be considered automatic firearms. Over half a million bump stocks had been legaly sold and owned. The new rule did not allow for grandfathering of existing stocks, or for compensation for the devices.

In the Tenth Circuit, Clark Aposhian, of Salt Lake City, Utah, filed suit in the United States District Court for the District of Utah, claiming the BATFE did not have the authority to change a law which had been made by Congress, and which they had been upholding for decades. The suit was backed by the New Civil Liberties alliance (NCLA). The NCLA frames the case this way: 

May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals? Those questions are what this case is about.

The case was filed on 16 January, 2019.  On 15 March, 2019, the Circuit court denied the motion for a preliminary injunction. The motion was appealed to the Tenth Circuit. 

The three judge panel issued a split decision on 7 May,2020, against Aposian. 

Aposian petitioned for a rehearing of the case by the Tenth Circuit, en banc. Aposian made the case the Tenth Circuit was violating their own previous precedent.

On 4 September, 2020, the Tenth Circuit agreed to re-hear the case, en banc.

The effect is the bump stock ban rule change by the BATFE is in play, and may be ruled to be unconstitutional, in the form of a preliminary injunction against the law. 

When a circuit court agrees to review a case en banc, the odds are a majority of the judges do not agree with the District Court decision. Thus, the odds are the Circuit Court will reverse the District Court decision. It is not certain, of course. But that is the way to bet. 

Will the bump stock ban be ruled unconstitutional? 

No one knows. But the chances for a ruling against the ban just got a lot better. 

The case does not address the takings clause of the Constitution, at least not yet.  The Supreme Court has discredited regulatory “takings” since the Roosevelt revolution in the Courts, which eliminated Constitutional rights to property, except as those rights were established by positive law. As positive law can be changed at any time by statute, those rights have no protection from regulatory takings. 

Most people intuitively reject that argument, which is one of the things driving civil forfeiture reform in the United States. Having rejected natural property rights in the late 1930′s, the Court could re-establish them in the 2030s. It has not done so yet. 

If the Tenth Circuit finds the bump stock ban regulation to be unconstitutional, the finding would be valid in the Tenth Circuit. It seems likely the Administration would appeal the finding to the Supreme Court. 

As a co-equal branch of the Federal Government, the court would not be required to take the case.  By court precedent, however, this would be a prime candidate for consideration, because it creates a clear split in the circuit courts and is an opportunity to clear up questions about how much power the Congress can give to the administrative state. 

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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