- The Washington Times - Thursday, August 11, 2022

The Supreme Court’s landmark gun ruling this summer has given conservative states new ammunition against the Biden administration in a legal challenge over its ban on bump stocks.

It’s unclear whether the Second Amendment precedent laid out by the justices will extend to firearm accessories, including bump stocks, as lower courts grapple with renewed gun rights challenges.

“The Supreme Court has not yet drawn a line on exactly which firearm accessories or parts are protected by the Second Amendment. Perhaps it will,” said C.D. Michel, a California-based lawyer specializing in firearms.

The justices do have an opportunity to address the bump stock issue with a few appeals pending before the court’s summer recess. The high court’s 2022 term begins in October.

Last week, 17 states filed a brief urging the court to take up one of the legal battles brought by individual owners and sellers of bump stocks, devices that are attached to semi-automatic rifles to allow them to fire more rapidly.

The lawsuit argues that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ prohibition on bump stocks in 2018 unlawfully seized personal property from Americans without compensation. The gun owners claim they should be reimbursed for having to destroy the bump stocks they processed legally before the 2018 rule.

The states point to the Fourth Amendment’s protection against federal seizure of private property and the Second Amendment’s right to keep and bear arms, bolstered by the high court’s June ruling in New York State Rifle & Pistol Association v. Bruen.

“This petition raises important questions about how the ever-growing administrative state threatens ‘the security of Property’ — one of the ‘great object[s] of government’ — as well as the right to keep and bear arms,” the states’ brief reads.

The justices’ 6-3 decision in the Bruen case struck down New York’s subjective standard for concealed carry licenses and laid out a historical test for courts to use when examining gun control laws. The government must show that a firearm regulation is consistent with the nation’s history and traditions.

If a firearm law existed at the time of the nation’s founding, then it is most likely legal, according to the originalist test derived by Justice Clarence Thomas, who wrote the majority opinion.

Lower courts, including the U.S. Court of Appeals for the District of Columbia Circuit last week, mostly have sided with the ATF in banning bump stocks.

The Trump administration moved to limit bump stocks after the 2017 mass shooting in Las Vegas, Nevada. The shooter used bump stocks in an attack that killed 60 people and injured more than 400 others.

The ATF’s 2018 rule categorized bump stocks as machine guns, which are restricted under federal law with the exclusion of models dating back to 1986.

The states cite the Bruen analysis in their legal brief. They argue that the ATF’s classification of bump stocks as machine guns runs afoul of “the fundamental right to keep and bear arms.”

It’s unclear exactly how the Bruen decision would apply to bump stocks. Though classified by ATF as machine guns, bump stocks are add-ons like “silencers” and flash suppressors, which some states ban. Those bans do not limit a person’s ability to own and use a firearm.

Aidan Johnston, federal affairs director for Gun Owners of America, which has launched legal battles against the ATF’s ban, said bump stocks — whether labeled a machine gun or accessory — are protected by the Second Amendment.

“There is absolutely no historical or textual basis for the regulation of an accessory or of machine guns at the time of the founding. The arms the people were legally able to keep in their home went all the way to muskets … to cannons,” Mr. Johnston said.

Proponents of gun control laws say the high court’s ruling makes it more difficult for states to enact and uphold laws that could prevent mass shootings and violence.

Paul Gordon, senior legislative counsel with People For the American Way, said the Bruen case “did even more harm to efforts to control gun violence” than the Second Amendment precedent that gave lower courts the leeway to uphold reasonable restrictions.

“Bruen made that much harder. To get to the result they wanted, the majority invented a ‘history and tradition’ test in which they cherry-picked historical examples that supported their agenda while ignoring others. Their method was frankly dishonest and both morally and legally indefensible, and the price will be paid by innocent people around the country,” Mr. Gordon said.

Mr. Michel, the firearms lawyer, said areas of firearms law besides bump stocks are now under review after the Bruen decision.

“Every type of gun control law is now subject to this new reevaluation. The appellate courts have been applying the wrong test. It’s a legal do-over on all Second Amendment challenges,” he said. “Practically every gun ban is subject to a new challenge and relitigation even if it was upheld before.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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