TTAG Weekly Gun Law Roundup: A Bumpy Road, More Red Flags

Another week, another dive into the expected, the silly, and the strange, legally speaking. Here’s what you need to know about this week’s developments in gun law:

The Bump Stock Litigation

It hasn’t been easy following the various bump stock cases that have had significant events in the last week, with the final rule having been set to take effect March 26. What is probably the most significant was the D.C. Circuit hearing oral arguments in Guedes v. ATF this week. Guedes is a straight-on attack on the Trump administration’s attempt to sidestep Congress in banning bump stocks by administrative fiat.

To put a short point on a long, boring story: the Trump administration sought to gain political capital (with who is anyone’s guess) by responding to public outrage following the Las Vegas killings, and directing the Department of Justice to ban bump stocks. Before this, bump stocks were never considered “machineguns” by the ATF, but rather mere accessories.

After being pressured by the DOJ and the Trump administration, the ATF did an about face and decided their decades-old interpretations were incorrect, and that the term “machinegun” is broad and nebulous enough to include a ham sandwich, as well as bump stocks.

With the final rule looming, appeals were expedited and all the stops were pulled out in the various lawsuits across the country. After oral arguments in Guedes, the D.C. Circuit, as well as in several other cases, stays were issued as to the parties, meaning the feds can’t enforce the new rule against people involved with these lawsuits, including members of the involved organizations who own bump stocks. This doesn’t indicate one way or the other how the cases will go, but it certainly tosses a wrench into any aggressive enforcement the ATF might want to conduct while the appeals are pending.

You may have seen headlines along the lines of the Supreme Court “refusing to stop” the Bump Stock ban. This is misleading.

Gun owners of America, plaintiffs in one of the several bump stock cases, requested the Supreme Court issue an emergency stay given the severe consequences that could attend the ATF enforcing the bump stock ban before the cases are finalized, and the stay was denied.

This has absolutely nothing to do with who is more likely to win the case, but that the Supreme Court declined to use its discretionary power to step in at this time. It is more likely the Supreme Court is waiting for the Circuit Courts to iron out the issue more, and possibly avoid getting involved. The areas of law involved are rapidly developing, and thus it’s no surprise the Court isn’t eager to jump right in.

The bottom line is this: when Diane Feinstein says a gun control measure is unconstitutional, it’s not going to be that hard to find a court to agree. Don’t be duped into thinking the bump stock cases are settled. We’ve got a long, bumpy road ahead.

Still More Red Flags 

March 26 saw a Republican-led Senate committee hold a hearing on controversial “red flag” laws, a generally well-intentioned but poorly executed breed of gun control already on the books in 14 states and the District of Columbia.

The general idea is that people posing a genuine threat to themselves or others can be ordered to surrender their arms. The problem is that many states seek to issue these orders ex parte (without the presence of the person subject to the order), resulting in SWAT raids on an unsuspecting individual, the type of which have already claimed human life.

The Senate committee was exploring the ins and outs of these laws, contemplating setting incentives for states to adopt them. The discussion wasn’t all terrible, as several sensible gun policy experts testified to the dangers of ex parte orders and allowing the processes to be initiated at the whim of a family member or ex-lover.

The general consensus seemed to be that a “Vermont style” red flag laws struck the best balance. Under these regimes, the opportunity for the subject to be heard is presumed, orders are only issued ex parte with evidence of extreme potential for harm, and the people who can initiate the process are far more limited.

Colorado’s senate this week, approved a “red flag” law far more dubious than those discussed in the U.S. Senate. The Colorado bill allows “a family or household member or a police officer” to ask the court to enter an order if they can convince the court “by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody.”

The key here is the phrase “by a preponderance of the evidence,” which translated from legalese means the court must be 51% convinced. A far cry from the “beyond a reasonable doubt” standard usually used in cases involving stripping a person of their rights, which means more like 99%. The law is expected to pass the state house.

Despite good intentions, this is an area that is entirely unproven, and there is little evidence presented that law enforcement has any ability to distinguish credible threats from a hole in the ground. The potential for “false positives” (labeling someone a threat for offensive jokes, for example) poses a serious safety concern, not to mention First Amendment concerns. What’s left to examine is whether the putative benefits of these laws outweigh the inherent risks.

Crab Cakes, Gold Medals, and Gun-Grabbin’

Maryland is introducing a flurry of new gun laws, most of which can only be described as solutions looking for problems. There’s an attempt to require four hours of training and a license as a prerequisite to purchasing a long gun, an effective ban on lending handguns, and other administrative changes. Oh, and the state wants to effectively ban a specific type of competition heavy barreled AR-15. Because reasons.

I am so humbled to be the Dist. 84 Representative in the AR State House. The 92nd General Assembly was just sworn in, & am ready to get to work!

I will be serving on the Education Committee, & the Committee for Aging, Children & Youth, & Legislative & Military Affairs! #arpx pic.twitter.com/peF11PUrNn

— Denise Garner (@DeniseforAR) January 14, 2019

Arkansas?!

Yep, Arkansas. A northwestern Arkansas lawmaker fulfilled one of her campaign promises to try to roll back the loosening in carry laws accomplished her predecessor helped to push through. She hopes to roll back campus carry, implement the fabled “universal background check” and, fascinatingly, require the use of holsters? Whatever. The measures are unlikely to pass given Arkansas’ legislative makeup.

Ohio Carry

A pair of Ohio lawmakers are seeking to deregulate concealed carry in their state. The proposal is pretty solid, allowing anyone over the age of 21 and not otherwise disqualified from carrying a firearm to do so without needing a license, still subject to the law as it governs license holders. In a somewhat rare and seemingly just twist, the law as proposed also expunges convictions from past violations that would now be lawful. It’s nice seeing lawmakers trying to shrink the pool of “criminals,” for a change.