Challenge comes in front of 10th Circuit

A Utah man’s legal challenge to the federal ban on bump stocks was reheard by the 10th U.S. Circuit Court of Appeals on Wednesday.

Much of the discussion was about whether the Bureau of Alcohol, Tobacco, Firearms and Explosives overstepped its authority when it defined bump stocks as machine guns to prohibit them under federal law.

A three-judge panel last year ruled against Clark Aposhian’s request to block the ban temporarily while his legal challenge is ongoing, but the full court agreed to reconsider that panel’s decision during a virtual hearing — the first time the full court heard an argument virtually.

Bump stocks are accessories that allow semi-automatic guns to fire continuously with one pull of the trigger, according to the ATF. The Trump administration banned the devices in 2018 after a gunman in Las Vegas used a bump stock in a 2017 mass shooting that killed 58 people and injured hundreds.

Aposhian’s attorney, Caleb Kruckenberg with the New Civil Liberties Alliance, argued that the ATF had no authority to ban bump stocks and that it needed to go through Congress.

“This case is really about whether the agency gets to overstep and whether the agency gets to take on the role of judging and interpreting the statute,” Kruckenberg said.

Brad Hinshelwood, an attorney with the U.S. Department of Justice, argued that ATF was well within its rights because bump stocks fall within the machine gun ban passed by Congress in 1986. Bump stocks essentially turn guns into machine guns, he said.

“Congress’ ban on machine guns would be largely meaningless if it could be so easily circumvented,” he told the judges.

Wednesday’s argument was only whether Aposhian should be granted a preliminary injunction and have his bump stock returned — it had been surrendered to the ATF — while his overall challenge to the ban is ongoing.

The overall challenge is still at the federal district court level, although whatever the appeals court decides on the preliminary injunction is likely to influence heavily what happens in the lower court, Kruckenberg said. That’s because the appellate judges will say how likely it is Aposhian will succeed on his overall challenge.

The judges will issue a decision in the coming weeks.