The Supreme Court leaves the ban on bump shares in place – again

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The Supreme Court declined to consider the latest challenge on Monday a federal ban on bump stocks, maintaining the ban on devices that essentially allow shooters to fire semi-automatic rifles continuously with a single pull of the trigger.

By refusing to entertain an appeal, the justices not only avoided addressing a gun-related issue, they also avoided the latest challenge to the so-called administrative state.

Under then-President Donald Trump, the Bureau of Alcohol, Tobacco, Firearms and Explosives banned bump stock units in 2019. Trump had ordered a review of the devices after a 2017 mass shooting in Las Vegas, in which a gunman armed with semi-automatic weapons and bump devices opened fire from his hotel suite on outdoor concertgoers, killing 58 people and wounding hundreds of others.

At issue in the dispute was whether the ATF had exceeded its authority in 2018 by reclassifying bump stocks as machine guns under the National Firearms Act.

Challengers framed their appeal as a separation of powers dispute, arguing that a federal agency — unaccountable to the public — lacked the authority to issue a final rule banning the devices.

Cutting the power of federal agencies has been a project of conservatives for years, and the current court — dominated by Republican presidential appointees — has been receptive to such efforts in other areas, including when it curbed the Environmental Protection Agency’s ability to combat climate change last year.

Although the court has denied other cases challenging the bump stock ban in recent years, Monday’s decision contrasts with other decisions the justices have made in firearms cases.

Last year, court strikes down gun law in New York passed more than a century ago that places restrictions on carrying a concealed handgun outside the home — a statement that marks the largest expansion of gun rights in a decade.

Central to the case, which the court declined to hear Monday, is a 1984 decision that laid out factors for determining when courts should defer to a government agency’s interpretation of a statute. According to the decision, when reviewing a case, the courts must first consider whether the law is ambiguous. If it is not, the analysis ends. If the language is not clear, however, a court considers whether the agency’s action is a reasonable interpretation of the law. Some conservatives have expressed criticism of the doctrine, arguing that courts should not defer to the agencies.

In the present case, W. Clark Aposhian, a firearms instructor, purchased a non-mechanical bump stock before they were banned. After the ban, Aposhian sued, arguing that the ATF should not have classified the bump stock as a machine gun under the law and that the agency lacked the authority to issue the ban. He lost at the district court level, and a divided panel of the Tenth Circuit Court of Appeals affirmed, leading him to appeal to the Supreme Court.

The Biden administration urged the justices to stay out of the dispute, arguing that looking at the scope of the 1984 decision was not a good remedy because the underlying statute was not ambiguous.

“Thus, ATF determined that bump stocks are machine guns under the statue, not that the agency had discretion under the statute to classify them as machine guns,” Attorney General Elizabeth Prelogar argued in court papers.

This story has been updated with additional details.

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