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SALT LAKE CITY — A federal ban on a plastic accessory that makes a semi-automatic weapon work like a machine gun remains at issue as a Utah gun enthusiast continues to press his case to overturn the rule.
A lawyer for Clark Aposhian and a government attorney faced questions Wednesday from 11 judges on the Denver-based 10th Circuit Court of Appeals in the court's first online hearing.
The New Civil Liberties Alliance, which represents Aposhian, is challenging a Bureau of Alcohol, Tobacco, Firearms and Explosives rule that classifies what is known as a bump stock as a machine gun. The group also has a Texas case pending in the 5th Circuit Court of Appeals.
"We think this discusses important policy that is bigger than just firearms. Can agencies bypass Congress in making laws? We don't think they should be able to," said Aposhian, chairman of the Utah Shooting Sports Council, a gun rights advocacy group.
Bump stocks, which modify rifles to fire like automatic weapons, came under intense scrutiny after a gunman used them to kill 58 people and wound 500 others at a country music festival in Las Vegas in 2017. He fired more than 1,000 rounds in 11 minutes.
The law defines a machine gun as one that fires more than one shot automatically by a single function of the trigger. A bump stock uses the recoil energy after a shot is fired to keep a gun firing by rapidly bumping the trigger against the shooter's finger.
The ATF adopted a regulation that redefined the devices as machine guns, therefore banning them under existing law. The rule directed owners to destroy or surrender their bump stocks to the ATF before it took effect in March 2019 or face criminal penalties. There were an estimated 520,000 bump stock owners at that time.
Aposhian relinquished his bump stock to the ATF last year pending the outcome of his attempt to reverse the rule.
The New Civil Liberties Alliance contends that the ATF rejected its own prior interpretation of the law and disregarded its own expertise in the mechanics and operation of firearms in order to alter federal criminal law because of the Las Vegas shooting.
Caleb Kruckenberg, an attorney with the group based in Washington, D.C., argues Congress didn't clearly include bump stocks in the definition of a machine gun. The ATF repeatedly stated the device is not a machine gun until it came under pressure from the Department of Justice in the wake of the Las Vegas massacre, he said.
Rifles with bump stocks do not repeatedly fire with a single pull of the trigger, he said.
"If you just pull the trigger and hold it with a bump stock, the gun will fire once, and that's it. It will never fire again. You have to release the trigger. It has to reset and you have to engage the trigger again," Kruckenberg said.
DOJ attorney Brad Hinshelwood said the ATF previously not classifying the bump stock as a machine gun was erroneous, and the 2019 rule corrected that mistake.
He contends Congress did not distinguish between a gun that allows a shooter to pull the trigger once and produce repeated fire or pulling a trigger once and applying pressure to a slightly different part of the weapon to continuously fire as with a bump stock.
"Congress' ban on machine guns would be largely meaningless if it could so easily be circumvented," he said.
A device enabling a shooter to take one step to alter the firing sequence and produce multiple shots is precisely the type of weapon Congress targeted in the law, Hinshelwood said.
Aposhian sued the DOJ and the ATF in 2019, alleging the federal agencies violated the Constitution in prohibiting bump stocks. He maintains that only Congress should be able to ban the devices.
A federal judge in Salt Lake City ruled that Aposhian didn't show a "substantial likelihood" of winning the lawsuit on its merits and, as a result, denied his motion for a preliminary injunction to block the rule from taking effect. He appealed to the 10th Circuit Court.
In a 2-1 decision last year, the appeals court agreed with the district judge. The panel also found that Aposhian failed to show that blocking the ban would not hurt the public's interest.
The New Civil Liberties Alliance asked for and received a rehearing from the full 10th Circuit Court. The judges vacated the panel's decision and asked for more argument, leading to Wednesday's hearing.
The group is also appealing a decision that went against it in Texas.
A federal judge in Texas ruled after a trial last November that Austin resident Michael Cargill is not entitled to legally possess a bump stock because federal law has always considered them machine guns. The court found that the government's definition "single function of the trigger" and "automatically" include bump stocks.
Kruckenberg also contends the ATF regulation turned owning a bump stock into a crime but that wasn't the intent of Congress. He said that has serious implications in a criminal case.
"This isn't just like you pay a fine. This means you go to federal prison because you have a machine gun," he said.
Hinshelwood said the rule does not change who would be prosecuted for having a machine gun. If someone were prosecuted for having a bump stock it would be under the law, not the ATF regulation, he said.
Kruckenberg said for that to be correct, it would have to obvious in looking at the law that a bump stock is a machine gun, and it's always been that way.
"That's a hard pill to swallow when the ATF was telling everybody for years they were not machine guns," he said.
At least one person has been charged criminally for owning a bump stock since the rule took effect. But a federal prosecutor in Texas withdrew the charge before the trial began last November for a Houston man accused of owning the device. The man, however, was convicted on several other weapons charges.