WASHINGTON — Gun shops are selling bump stocks again in Texas, Louisiana and Mississippi after federal regulators failed to appeal a ruling that lifted a ban imposed after a Las Vegas rampage left 58 people dead.
The New Orleans-based 5th U.S. Circuit Court of Appeals, which handles cases from Texas, Louisiana and Mississippi, struck down the federal ban from the Bureau of Alcohol, Tobacco, Firearms and Explosives, ruling in January that only Congress has such authority.
Several other federal appeals courts have upheld the ban. So bump stocks — devices that enable semi-automatic rifles to fire faster — remain illegal in most of the country. The Supreme Court often weighs in in such situations, and the ATF could go there next.
The device replaces the standard stock, the part held against the shoulder, and frees the gun to slide back and forth rapidly and “bump” between the shoulder and trigger finger.
Groups seeking to reduce gun violence say that by allowing near continuous firing, the device runs afoul of a longstanding ban on machine guns.
Michael Cargill, owner of Austin’s Central Texas Gun Works, sued to challenge the ban in 2019 with New Civil Liberties Alliance, a litigation group that says it protects constitutional freedoms, including Second Amendment rights.
They lost in federal court in Austin, and before a three-judge panel of the 5th Circuit, one of the country’s most conservative courts.
Victory came after another hearing, this time before the full 5th Circuit.
“I wasn’t surprised,” Cargill said. “I was excited, because I felt that this was the absolute right decision to make.”
The federal government had until Monday to appeal the Jan. 6 ruling.
When the deadline passed, the appeals court directed the lower court to execute its ruling.
“Bump Stocks are now legal in TEXAS, LOUISIANA & MISSISSIPPI,” Cargill tweeted Tuesday.
South Texas College of Law professor Dru Stevenson said it’s still possible the ATF and Department of Justice could appeal in the lower trial court.
“They could re-litigate it as it goes to remand. We’re kind of waiting to see what happens,” he said.
The ATF said it is unable to comment on litigation. The DOJ did not respond to a request for comment.
Jeremiah Cottle, who invented and patented the device, which he calls a slide stock, ran his Moran, Texas-based company Slide Fire Solutions for eight years before the Las Vegas shooting.
“And then the government came after me,” Cottle said.
On Oct. 1, 2017, a gunman in Las Vegas killed 58 people at an outdoor concert and wounded hundreds. Fourteen of the shooter’s 22 semi-automatic rifles were equipped with bump stocks, allowing him to shoot so many concertgoers in a matter of minutes.
Four months later, a shooter killed 17 people at a high school in Parkland, Florida. Though the shooter didn’t use a bump stock, public outcry mounted, and then President Donald Trump called for a ban on the device. The ATF quickly complied, issuing its federal rule — the ban — in December 2018.
By then Slide Fire had shut down amid lawsuits over the Las Vegas massacre. RW Arms in Fort Worth took over selling off the remaining inventory.
Cottle has rebranded Slide Fire as the American Bump Stock Company and resumed sales on Feb. 17, this time via the website bumpstock.com.
Business has been slow so far.
He sees two main reasons: trouble processing credit card payments, and uncertainty over how long ownership will remain legal.
“People are afraid of what the government is going to do,” he said.
His bump stocks cost $249 right now, about 15% more than before the ban, due to higher material and labor costs.
Cargill plans to sell the devices at his store in Austin soon.
ATF can still enforce the ban outside Texas, Louisiana and Mississippi, but the appeals court ruling protects buyers, sellers and owners in those three states.
“Essentially, the ATF is prevented from enforcing the rule for the time being in these three states,” Stevenson said.
The rule the ATF issued after the Vegas shooting equated semi-automatic rifles equipped with bump stocks with fully automatic weapons. Congress banned possession of machine guns in 1986.
The bump stock rule, which took effect March 26, 2019, made it illegal to transfer or possess one of the devices. Owners were required to destroy or surrender them.
“In 2019, we destroyed 60,000 units ... which was millions of dollars of inventory,” Cottle said. “The ATF ... took them to a recycling plant in Fort Worth.”
Courts rebuffed efforts by former owners to get federal reimbursement after the ban.
As the 5th Circuit did in its ruling, Cottle noted that for a decade before the Vegas shooting, the ATF deemed that bump stocks on semi-automatic weapons did not meet the definition of a machine gun.
Stevenson said the intense shaking makes it harder to aim and therefore less useful for self-defense.
“The two types of people that will want bump stocks are thrill seekers who want a cheap way to simulate firing a machine gun,” he said, and someone “trying to spray bullets in a crowd, like the Las Vegas mass shooter.”
Sen. John Cornyn, R-Texas, a gun rights supporter with top grades from the NRA, supported the ban at the time, and still does.
“That’s something that ordinary sportsmen or somebody ... interested in defending their family or their property is not going to be buying,” Cornyn said Thursday. “Obviously, we saw in Nevada how it could be used to take the lives of a lot of innocent people. So I’m concerned about it.”
Cargill’s case could have implications beyond the Second Amendment, because it could hinge on a Supreme Court doctrine that courts should defer to the agency in charge of enforcing a particular statute as long as its actions are reasonable.
That doctrine, from the 1984 ruling in Chevron U.S.A., Inc. vs Natural Resources Defense Council, gives ATF and other agencies a great deal of latitude, Stevenson said, and other circuit courts upheld the bump stock ban on that basis.
The split among the appeals courts could compel the Supreme Court to take the case. But the Biden administration may hesitate to go there and risk a ruling that would weaken the Chevron doctrine.
That would be fine with Cargill, who would love the courts to tell the Centers for Disease Control and Prevention “‘you can’t make it mandatory for everyone to get a shot, you can’t make it mandatory for everyone to wear a mask.’ They don’t have that right.”
(The CDC has not issued such mandates, though state and local authorities have. And President Joe Biden did order COVID-19 vaccination for the military and federal workers.)
Conservative critics say the Chevron doctrine cedes too much power to bureaucrats. Cargill said his lawsuit was designed not just to restore the bump stock trade but to “go after all agencies” — “for example, the CDC.”
But regulators need that deference to ensure public safety, Stevenson said.
“That can affect everything from environment like pollution laws, to workplace safety laws with OSHA, to national highways (and) safety regulations about cars,” he said.
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(Washington correspondent Joseph Morton contributed to this report.)
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