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Utah gun advocate loses appeal to block bump stock ban

Appeals court ruling on Clark Aposhian challenge
Posted at 4:22 PM, May 08, 2020
and last updated 2020-05-08 18:22:45-04

DENVER (AP) — A U.S. appeals court on Thursday ruled against a Utah gun rights advocate who challenged the Trump administration's ban on bump stocks, the gun attachments that allow semi-automatic weapons to fire like machine guns.

A three judge panel from the 10th Circuit Court of Appeals in Denver said a lower court was right to rejecta request from Clark Aposhian to temporarily block the ban, which took effect last year, because he did not show he was likely to win his case. The appeals court also said he failed to show that blocking the ban would not hurt the public's interest.

The decision came two months after the U.S. Supreme Court rejected an appeal of the ban, enacted as a result of the 2017 mass shooting in Las Vegas. A similar challenge to the ban is set to go to trial in July in Texas.

The Las Vegas gunman was able to fire more than 1,000 rounds in 11 minutes, killing 58 people and injuring hundreds of others. President Donald Trump said later the government would move to ban bump stocks, a sliding stock that replaces standard stationary stocks on semi-automatic rifles. The Bureau of Alcohol, Tobacco, Firearms and Explosives eventually adopted a rule that defined bump stocks as machine guns under the National Firearms Act.

The law defines a machine gun as one that shoots 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.

Aposhian argued that the law was clear and the ATF did not have the authority to adopt the rule that led bump stocks to be covered by it, something only Congress should have the power to change.

In a solo dissent, Judge Joel Carson said the law only refers to the trigger itself, not any external action, pointing out that mechanical bump stocks require the shooter to apply constant forward pressure with their non-trigger hand and cannot function all by themselves as the law requires.

The ruling only addressed Aposhian's bid to temporarily block the ban while his challenge is considered and the case will continue, his lawyer, said Caleb Kruckenberg of the New Civil Liberties Alliance. Aposhian could ask the full 10th Circuit to consider his bid for a temporary injunction, go back to district court in Utah or appeal to the Supreme Court, he said.

Kruckenberg said the case is not about gun rights but about who has the authority to make the law.

The ATF estimated there were about a half-million bump stocks in the country when its rule was enacted, automatically making the devices illegal.

"Before they know it, they might be prosecuted,'' Kruckenberg said of bump stock owners.