Yesterday, the New Civil Liberties Alliance argued their case against the ATF’s bump stock ban in the Tenth District of Federal Court. It was an interesting argument for many reasons.

It was the Tenth’s first-ever en banc argument ever held virtually. Based on how smoothly it worked overall (I don’t consider it dropping media attendees a major problem -especially since it was simple to reconnect), it’s likely the Tenth will be far more amenable to such unusual proceedings.

Aposhian v Barr, in case you’re not familiar, makes the case that while federal statue bars Americans from owning machine guns, it does not preclude them from owning bump stocks. That prohibition only came to be after the ATF adopted a regulation changing the definition of a “machine gun” to include bump stocks. When the ATF rewrote that regulation and changed the definition, they instantly turned as many as 500 thousand law-abiding Americans into felons.

Because the ATF changed a longstanding rule, firearms instructor Clark Aposhian went from law-abiding citizen to a man facing a potential 10-year prison sentence, strictly for buying a gun stock that was totally legal at the time of purchase.

In response, Mr. Aposhian sued. Not challenging the legality of bump stocks, rather challenging the ATF’s “unconstitutional rewriting of a federal statute”.

In oral arguments yesterday, attorney Caleb Kuckenberg made the argument the ATF not only lacked the authority to make the change, it admitted as much in earlier hearings. Unfortunately, the whole case hangs on a couple of legal concepts, not the fact that one pull of the trigger on a semi-automatic rifle, with or without a bump stock, fires a single round.

The question is whether the federal court defer to an agency’s interpretation of a statute that the agency administers if the underlying statute is unclear and the agency’s interpretation is deemed reasonable. If it does, that’s called Chevron deference. If it is limited to the agency’s interpretation of its own unclear regulation, it is an Auer deference. Mr. Aposhian and the New Civil Liberties Alliance makes the case the agency’s change on bump stocks is plainly erroneous, and based entirely on their interpretation, not a change in the law.

As Kuckenberg pointed out in his arguments, the ATF lacks the statutory authority to change a rule that is unambiguous. In other words, there’s no reason to change the rule because there’s anything unclear about the rule as it exists. As he pointed out in a question and answer session with the judges, changing the regulation to ban bump stocks would essentially require the ATF to admit that for years, they had been wrong in saying bump stocks were not machine guns.

During the arguments, it became clear that while the judges were versed in the nuances in the legal aspects of the case, they were nowhere as versed on the whole bump stock idea. “If I pull the trigger on a semi-automatic rifle with a bump stock,” one asked, “how many times will it fire?” The response - one- the same as a rifle without a bump stock- actually stopped conversation for a few seconds.

When it was explained that the only way to make a bump stock-equipped rifle fire faster was through the practiced ability to pull the trigger with the strong hand and push forward with the support hand, only the reality of the judges being separated by the virtual hearing presented what could have been a pretty energetic discussion.

No ruling expected anytime soon -and no matter the ruling, the matter won’t be settled. But we’ll keep you posted.

We’re continuing to get notes from frustrated readers looking for ammunition. And writing back to tell them we’re equally frustrated at finding ammo is getting old. It’s especially hurtful when they’re looking for anything from Blackthorn 209 black powder to cartridges either in lower demand or older calibers. Those aren’t getting made because the time ammo makers had allocated to lower-demand calibers has been consumed by the record-setting demand for the popular calibers.

How high is demand? According to the NASGW’s SCOPE DLX report summary for 2020, the ammunition business was up 81% in 2020 compared to 2019. If you compare it to the three-year average, it’s up 148.91%. In other words, there’s a lot more demand than there is supply.

So what do we do? One of our friends, Paul Markle, has an idea. He makes the point that there’s ammunition out there- it’s just not in the stores. We have, as he points out, “billions of rounds” out there, but people are setting on what they have.

But do we need all that ammunition we’re sitting on? No, we’re not talking about “need” in the “no one needs a ____” sense. We’re talking about ammunition you have in calibers that you don’t own anymore.

I rummaged around in my shelves to see if he was really off base. Turns out he wasn’t. I don’t have lots of ammunition in any caliber, but I did have a few boxes in calibers I don’t own anymore. I don’t shoot cowboy action anymore, but I still have some “cowboy caliber” ammo.

There were others, but I don’t want to start an avalanche of “I need that ammo” emails…

Here’s Markle’s suggestion: go to your gun club, or range or friends and tell them you want to have an “Ammo Swap Saturday”. It’s just what it sounds like. Everyone brings the ammo they can’t shoot and swaps for something they could use. The more people, the better the chance of ammunition. If you’re sitting on a bunch of .308 and you’d like to have some 9mm or whatever, you can work out a deal.

“Barter with a buddy,” says Markle, “it could be fun and you might find some ammo you can use, too.”

Watch his explanation here. He’s likely onto something.

— Jim Shepherd