Trump banned bump stocks after deadly Las Vegas shooting. Now the issue is in the Supreme Court's hands

WASHINGTON – Five years ago, a retired postal worker on the 32nd floor of a Las Vegas hotel carried out the deadliest mass shooting in American history, reopening a debate over a device known as a bump stock that turns a semi-automatic rifle into something closer to a machine gun.

Within a few months then-President Donald Trump moved to ban bump stocks through regulation, asserting the policy would "make it easier for men and women of law enforcement to protect our children and to protect our safety."  

Now two legal challenges to the Trump administration’s prohibition are pending at the Supreme Court – including one that has been rescheduled for consideration 20 times. The lack of a decision about whether or not the court will hear the litigation has led to speculation among experts who follow the issue closely that the court’s 6-3 conservative majority may not agree on how to proceed.

The court twice declined emergency requests from gun groups to delay implementation of the ban in 2019. And it declined to hear a similar challenge in 2020. Since then, Associate Justice Amy Coney Barrett’s confirmation has given conservatives a super majority – an advantage they have pressed elsewhere, such as in cases dealing with abortion, religion and the Second Amendment.

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"The six conservatives on the court right now aren't really on the same page about guns as much as people think they are," said Dru Stevenson, a professor at South Texas College of Law Houston. Some in the court's conservative wing, he said, "might be afraid to take the case if they're not sure that they're going to get their way."

In addition to once again raising the issue of guns at the nation's highest court months after it decided a landmark Second Amendment case, the new litigation also delves into how much power federal agencies have to create regulations when the law those rules are based on is unclear. Conservatives for years have sought to limit that agency discretion and their arguments seem to be gaining traction with the high court.

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One of the cases, W. Clark Aposhian v. Attorney General Merrick Garland, was filed a year ago by a gun lobbyist in Utah who purchased a bump stock before the prohibition took effect. Another, Gun Owners of America v. Garland, was filed in March by gun rights groups. The court scheduled both cases for its final conference of the previous term in June, when the justices meet to discuss which cases to hear. Both were rescheduled.

The justices will hold their first post-summer conference on Sept. 28 and both cases are scheduled to be discussed at that meeting.

In a major guns decision in June, the Supreme Court ruled that a New York law that made it harder for state residents to carry handguns in public violated the Second Amendment. The 6-3 majority in that decision also embraced a new legal standard that puts a greater emphasis on historic gun regulations and may make it far harder for gun control advocates to defend gun laws.

Associate Justice Brett Kavanaugh and Chief Justice John Roberts joined the majority, but they wrote separately to stress some gun prohibitions may be permissible.

But the legal fight over bump stocks, a device that uses the recoil of a semi-automatic firearm to mimic automatic firing, isn't being fought squarely on Second Amendment grounds. Rather, the groups and individuals challenging the ban say Trump's Bureau of Alcohol, Tobacco, Firearms and Explosives erred when it interpreted a 1986 ban on the sale of machine guns to also include bump stock devices.

The 1986 law defines a machine gun as a weapon that fires more than one shot automatically "by a single function of the trigger." Such weapons have been heavily regulated since the 1930s because of their use by organized crime leaders such as Al Capone.

Gun rights groups note the ATF had previously determined that bump stocks did not amount to machine guns. They point to remarks by Sen. Dianne Feinstein, D-Calif., who said in 2018 that "if ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years."  The best way to ban the accessories, Feinstein said at the time, was through legislation.

Aidan Johnston, federal affairs director for Gun Owners of America, dismissed the idea that the accessories are as potent a tool as critics suggest. For one thing, Johnston said, semi-automatic weapons can be "bump fired" through less sophisticated – and impossible to regulate – means, such as by threading a trigger finger into a belt loop on a pair of pants. For another, he said, bump firing makes it hard for the shooter to hit a target.

"It's completely useless for self-defense, home defense – anything like that," said Johnston, who said he owned one of the devices before the ATF rule went into effect.

So why fight it? Partly it's because the plaintiffs fear what regulations may follow if federal courts permit agencies to prohibit bump stocks.

"We have to fight back if the federal government is going to say that any weapon that can be bump fired is a machine gun," Johnston said. "If you allow that definition to stand then you're only one rule change away from someone saying every semi-automatic firearm is a machine gun and banning those, too."

That’s not a far-fetched idea. Stevenson said that another possible reason why the Supreme Court hasn’t decided what to do with the bump stock cases is that some of the justices may want to see how lower federal courts rule on challenges to semi-automatic weapon bans. After the decision in the New York case in June, the high court sent several other Second Amendment challenges back to lower courts for further review. One of those was a lawsuit challenging Maryland’s ban on the AR-15 and other semi-automatic rifles with magazines that can hold more than 10 rounds.

Gun control advocates push back on the argument that bump stocks should be permitted just because gun enthusiasts can jerry-rig an alternative.

"Just because a rule doesn't completely solve a problem doesn't mean it's not a legitimate rule," said Shira Feldman, litigation counsel with Brady, a gun control group. "There seems to be a lot of interest in circumventing what is a ban on machines – to find some way to use guns that are not supposed to be machine guns as machine guns."

It's not clear how many of the devices are in circulation, though the Justice Department had previously pegged the number between 280,000 and 520,000.

Feldman points to another reason why the Supreme Court may have been slow to take up the issue of bump stocks: So far, gun rights groups have been losing in appeals courts. The justices often like to see a disagreement in circuit courts – known as a "circuit split" – before wading in to resolve a dispute and provide guidance to lower courts on a thorny legal question.

"Right now," Feldman said, "there is no circuit split."

But that may soon change. In a separate case, the New Orleans-based U.S. Court of Appeals for the 5th Circuit has scheduled arguments in a challenge to the bump stock ban for Tuesday. Meanwhile, at least one of the justices has signaled a receptivity to the arguments being made by the gun rights groups.  

The ATF, Associate Justice Neil Gorsuch wrote in 2020, "used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite. The law hasn't changed, only an agency's interpretation of it.

"Why should courts," Gorsuch asked, "defer to such bureaucratic pirouetting?"

This article originally appeared on USA TODAY: Bump stock ban imposed after Las Vegas shooting waits at Supreme Court