Posted on 07/08/2019 12:38:57 PM PDT by JamesP81
Full title: Relying on the Same Illogic That Trump Used to Ban Bump Stocks, a New Lawsuit Argues That Customizable Rifles Are Illegal
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.
"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.
The bold section is important to the lawsuit. The underlined bit relates to bumpstocks.
Taking the underlined part. Bumpstocks are clearly not machine guns because their use still requires one shot per trigger pull. This is cut and dry, black and white. One shot per trigger pull, and there is no independent mechanism involved pulling the trigger for the shooter. Anyone with a 5th grade education who can read can understand this. Nevertheless, the plain language of the law is irrelevant; Trump ordered the BATFE to figure out a way to classify them as machine guns under this statute, they obeyed and tortured the english language sufficiently to do just that. The appellate courts, being staffed with functional illiterates upheld the administration's regulation and SCOTUS refused to hear the case. So it's done, and this is the new reality.
That reality is described by the bolded portion of the federal statute. Since a bumpstock, against all conventions of plain english, is now a machine gun, possession of a device that functions like a bumpstock and possession at the same time of a semi automatic rifle could arguably be legally defined as possession of an unregistered machine gun.
What devices function like a bump stock? Rubber bands, actually. A rubber band can be wrapped loosely around the trigger, then by applying forward force to the handguard (precisely as you would a bumpstock) the rifle will fire, the recoil will loosen the rubber band and allow the mechanism to reset, then fire again as the shooter applies forward motion to the entire firearm. In fact, I can argue that bump stocks are more legally justifiable than rubber bands; with a rubber band, the rubber band actually pulls the trigger. With a bump stock, the shooter's finger still have to pull the trigger, but no matter.
It gets better. A bump stock helps you bump fire. Bump fire is a technique; finger inside trigger guard off trigger, push rifle forward with support hand until trigger runs into trigger finger and is activated. Rifle fires, recoil backs trigger off of trigger finger, resets mechanism. Continued forward pressure moves the trigger back into contact with the trigger finger, triggering another shot. A bump stock is an aid that makes this easier, but it is not by any means necessary.
If this lawsuit succeeds then de facto all semi automatic firearms are legally machine guns, because bump fire does not require a bump stock. Possession of a semi auto firearm will constitute possession of a machine gun because there is a technique that will let you shoot fast. The fact that the law clearly does not support this does not matter. If the law mattered, the bump stock ban would've never been written to begin with, and the courts would've tossed it out instantly with nothing more than a "LOL, no."
I don't expect this lawsuit to succeed. For one, there's not actually any proof that bump stocks were used by the Vegas murderer, and BATFE has never been permitted to examine the weapons he used.
Because bump stocks were legal at the time, it also constitutes an ex post facto legal action. Then again, federal law clearly states bump stocks are not machine guns, yet here we are. Long term that's irrelevant; if it's determined possession of, say, rubber bands and a semi automatic rifle constitutes possession of an MG, then all semi autos will be de facto MGs and subject to the 1986 FOPA which says that any machine gun not registered before May 1986 in the NFA database is unlawful to possess. So almost all AR-15s, and all semi autos manufactured in the last 30 years.
As stated, they probably won't succeed with this lawsuit, but the framework is now in place. They only have to win once.
The people who thought the bump stock ban didn't matter and was fine were warned, repeatedly, that this would happen. They were told of the dangers and rather than examine the issue, they ranted about useless toys and took the position that Trump could do no wrong. I sincerely hope that next time they will listen to sound counsel when it is offered by people who are familiar with the issue and who are not prone to getting weak bowels over some young guys who like to burn ammo fast at the range for fun and giggles on YouTube.
NRA owns a lot of responsibility for this disaster too. They asked BATFE to regulate them, so BATFE did. Trump probably took their advice on this matter and is how he arrived at his position.
This is the fundamental axiom of law.
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
That is idiotic, since it takes a finger pull for each round, you have to hold the weapon in a specific position and a bump stock can be fitted to almost any semiautomatic rifle....
“This is the fundamental axiom of law.”
If so, it’s yet another reason lawyers are a scourge on civilization. If words don’t mean things, then laws, which are made of words, don’t mean things either.
That’s not a place anyone should want to go.
There are never more weasels or weasel words used by them, than when it comes to proposing new ‘reasoned’ gun control.
Criminals don’t abide by our gun control laws now, so it is never reasoned to propose even one more gun law.
Only a weasel would propose a new gun law, and he would have to use weasel words while failing to justify it, based on the failure of gun laws to be observed by anyone other than law abiding citizens.
Crooks will always have a green light to do as they please, because it never pleases them to abide by our laws.
Lawyers have some blame, to be sure. But the fact of the matter is they could not do the damage without help. “The law” is whatever the controlling authority says it is. Courts often toss the plain langugae aside. Any time the plain language directs “the wrong outcome” (this is a matter of whim), the plain lanuage is out the window.
The bumpstock ban is the thing that I hate most that Trump has done but as far as I know SCOTUS hasn’t refused the case, it only refused to issue a preliminary injunction.
SCOTUS is never going to overturn this and thinking they will is living in fantasy land.
Binary triggers are legal - one shot per trigger pull and another shot when trigger is released.
Interesting note about binary triggers. In the bump stock regulation BATFE went out of their way to specifically say binaries are still legal. I think it’s on pg 83 of the reg IIRC.
That does make it look like the BATFE is more on our side than the administration. We live in a strange time.
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