Bump Stock Bans May Be the First to Fall After Bruen

The earthquake that rumbled across the legal landscape yesterday as a result of the Supreme Court’s New York Rifle & Pistol Association v. Bruen ruling is only just beginning to be really felt. Yes, the Court nuked “may issue” licensing schemes in New York (and the eight other states with similar laws). But as the almost panicked reactions of those in the gun control industry made abundantly clear, that’s only the start of what the ruling will mean for other laws currently on the books.

Justice Clarence Thomas’s clear and unambiguous rejection of the interest balancing tests that have been used by lower courts to ignore the Heller and McDonald decisions for the last 14 years can and will be used to attack dozens of other gun control schemes currently in effect across the country. To wit . . .

Only a few hours after the Bruen decision was handed down, an en banc Fifth Circuit Court of Appeals tossed a three judge panel’s ruling that upheld the ATF’s reclassification of bump stocks as machine guns.

This is the case brought here in Austin by Central Texas Gun Works owner Michael Cargill, which will now be re-heard.

From the Austin American-Statesman . . .

In Thursday’s order that vacated the panel’s ruling, the full 5th Circuit gave no reasons for its action, saying that oral arguments will be scheduled and deadlines for a new round of legal briefs will be set.

Gee, can anyone hazard a guess as to why the Fifth Circuit might have ruled that way? Is there any chance that it has something to do with the entirely new legal landscape we now have for determining whether gun control laws violate Americans’ Second Amendment rights?

We figured that the case had already been considered long before the Bruen decision was handed down, and maybe yesterday’s announcement was just a happy coincidence. Then we talked to TTAG’s resident legal expert LKB who had this to say . . .

The panel decision was issued late last year (after Bruen was argued); appellants then filed for an en banc rehearing. The Fifth Circuit Court of Appeals hadn’t ruled on the en banc request, obviously waiting to see what SCOTUS would do. Now we know.

CTA5 is thus poised to be the first en banc CTA to rule on Second Amendment issues post Bruen . . . and given the lineup of that court, they may very well issue a broad, binding-on-all-district courts-and-CTA panels Second Amendment opinion that rolls out the red carpet for 2A test cases to be filed in Texas/Louisiana/Mississippi.

Gosh. That would be awful.

When asked if it was fair to say the Fifth Circuit was just waiting for the Bruen ruling to come down, LKB said . . .

Unless you are privy to intra-court communications, you never know why a court does anything. But it is fair to say, “it appears that the Court was waiting for the Bruen opinion before acting on the petition for rehearing.”

OK then…that’s what we’ll say.

One quirk of the Cargill case is that it’s a challenge to the Administrative Procedure Act, a different animal than cases brought against magazine capacity limits or “assault weapons” bans. As a result, Bruen will play less of a role in how the case is decided.

But the Supreme Court has been holding a number of other cases in anticipation of its ruling on Bruen such as . . .

Young v. Hawaii — open carry ban
Bianchi v. Frosh — “assault weapons” ban
ANJRPC v. Grewal — “high capacity” magazine ban
Aphosian v. Garland — bump stock ban, similar case to Cargill

Look for the Court to grant cert, vacate the lower court rulings and send them back for reconsideration now under Bruen in the coming days.

And there are so many more. As the Mountain States Legal Foundation’s Cody Wisniewski points out, yesterday’s ruling did two things. Bruen was both an affirmative restatement of the Heller decision and an affirmative rejection of the two-step procedure of evaluating Second Amendment cases that lower courts have used to get around Heller ever since.

That two-step standard is now no longer an option. But because those lower courts have been applying the now decisively discredited standard to cases challenging gun control laws for the last 14 years, every one of those decisions is now fair game again.

This isn’t going to play out quickly. Nothing in the legal system ever does. But this might be a good time to stock up on popcorn, because the legal fireworks have only just begun.