Litigating the Bump Stock Ban

42 Pages Posted: 29 Mar 2021

See all articles by Drury D. Stevenson

Drury D. Stevenson

South Texas College of Law

Mia Romano

affiliation not provided to SSRN

Date Written: March 27, 2021

Abstract

In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.

Keywords: Firearms, guns, Second Amendment, bump stocks, ATF, BATFE, Chevron, regulation, Guedes

JEL Classification: K1, K10, K14, K23, K39, K42

Suggested Citation

Stevenson, Drury D. and Romano, Mia, Litigating the Bump Stock Ban (March 27, 2021). Available at SSRN: https://ssrn.com/abstract=3813918 or http://dx.doi.org/10.2139/ssrn.3813918

Drury D. Stevenson (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1897 (Phone)

HOME PAGE: http://www.stcl.edu

Mia Romano

affiliation not provided to SSRN

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