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Show of hands, who has been paying attention to the various lawsuits dealing with the ATF’s reinterpretation of Bump Stocks? Because to be completely honest, I haven’t been paying as much attention as I clearly should have been. In their most recent court filing, the ATF has admitted some truly explosive news. Namely, they concede that they do not have the authority to reinterpret the definition of machine guns in the under the National Firearms Act (NFA).
ATF Admits No Legal Authority for Bump Stock Ruling

Let’s back up and provide some context. So, on December 26th, 2018, the ATF issued a final ruling on “bump stocks”. A bump-stock is a device that allows an operator of a firearm to simulate automatic fire by muscle power. While previously the ATF had decided that bump-fire or slide-fire stocks were legal devices, they then reclassified them as illegal machineguns. All current owners were ordered to destroy them. If you did not do so, you faced up to 10 years in federal prison.

Naturally, a lot of people became somewhat ticked off that the ATF would seemingly arbitrarily change their ruling to make thousands of Americans potential felons overnight. As a result, many people filed lawsuits. One such lawsuit was filed by the New Civil Liberties Alliance on behalf of plaintiff W. Clark Aposhian.
This Case in Particular

This lawsuit rests on a fairly straightforward presumption. The complaint states that since all legislative powers lie with Congress, the ATF, as a part of the executive branch, cannot reinterpret statutes to mean something else. Since the law regarding machineguns has not changed, bump stocks can’t be reclassified as machineguns.

There are another 30 odd pages of the original complaint, but that’s about the gist of things. Mr. Aposhian is a law-abiding citizen, the ATF told him that bump stocks were legal so he bought one. The filing states that the ATF lacks the authority to reclassify bump stocks, and thus the ATF has violated Mr. Aposhian’s constitutional rights, as well as exceeding its constitutional remit as part of the executive branch.
ATF Bump Stock Ruling Admission – Why Should We Care?

The million-dollar question. Why do we care? Because as of September 18th, the ATF has written a court brief that admits it exceeded its constitutional remit as part of the executive branch. The court filing states specifically that;

    The statutory scheme does not, however, appear to provide the Attorney General the authority to engage in “gap-filling” interpretations of what qualifies as a “machinegun”. Congress has provided a detailed definition of the term “machinegun”…

The New Civil Liberties Alliance, on behalf of Mr. Aposhian, quickly filed a for a preliminary injunction. Essentially, as Mr. Aposhian has suffered “irreparable harm” from the deprivation of his lawfully-acquired bump stock, and the ATF (in the opinion of the Plaintiffs) clearly lacks the authority to cause such deprivation, the Final Rule on Bump Stocks should be struck down.

ATF’s Brief on the bump stock ruling is behind a login-wall in the PACER system. It can be found in the 10th Circuit Court’s filings, case number 19-4036, Aposhian v. Barr, et al.

    This case is not about whether gun control is a good idea. Rather, Mr. Aposhian’s appeal raises key issues about how an agency may create such a ban—that is, whether agency regulations may contradict a statute passed by Congress. The appeal also challenges the notion that a mere interpretive rule can bind third parties, such as owners of bump stocks.

    “The bump stock rule made it a new federal crime to own a bump stock, even one purchased with ATF’s prior permission. ATF knows it didn’t have the authority to enact such a law. Instead of defending the rule, ATF now pretends the ban is just a recommendation for the public. NCLA is confident the court will see through ATF’s games and strike down this invalid rule.” —Caleb Kruckenberg, Litigation Counsel

    “ATF is caught between a rock and a hard place. The agency lacks legal authority to issue a so-called legislative rule, but a mere interpretive rule is not legally allowed to bind any third parties outside the government. By ordering half a million bump stock owners to surrender their devices—or face prosecution—ATF has acted in a completely unconstitutional fashion. It is high time for the federal courts to put a stop to this regulatory nonsense.”
    —Mark Chenoweth, Executive Director and General Counsel

    Congress could have passed bipartisan legislation making bump stocks illegal. Instead, ATF has tried to ban them via administrative action in the Bump Stock Final Rule. This Court has a constitutional obligation to strike down ATF’s attempted legislative rewrite. Otherwise, the Executive Branch will usurp Congress’ legislative function in other areas, and the Constitution’s careful limits on how laws are made will be undone.

The House Judiciary Committee is concerned that including DMCA-style safe harbors in new trade agreements could become problematic. The Copyright Office is evaluating the effectiveness of the DMCA and may soon propose changes. That will be much more complex if the 20-year-old language is included in new trade deals, as is the case with the proposed United States-Mexico-Canada Agreement.

When President Clinton signed the Digital Millenium Copyright Act (DMCA) into law in 1998, its goal was to ready copyright law for the digital age.

The law introduced safe harbors for Internet services (DMCA Section 512), meaning that they can’t be held liable for their pirating users as long as they properly process takedown notices and deal with repeat infringers.

Today the four-letter acronym is known around the world and the United States appears keen to export it in future trade agreements. Most recently, a DMCA-style provision was added to the United States-Mexico-Canada Agreement (USMCA), which covers a wide variety of trade issues including copyright-related topics.

While this would have been welcomed by rightsholders twenty years ago, the situation looks quite different today. The music industry, in particular, believes that the DMCA is obsolete, dysfunctional, and even harmful. For these reasons, major industry groups would like to see it replaced with something ‘better.’

When the first draft of the USMCA was published, the RIAA made this clear in no uncertain terms. “Modern trade treaties should advance the policy priority of encouraging more accountability on public platforms, not less,” RIAA President Mitch Glazier said.

The issue was crucial enough to be specifically mentioned in the RIAA’s lobbying disclosures at the U.S. House and Senate. This may have had an effect, as this week the concerns were picked up by the House Judiciary Committee.

In a letter to the U.S. Trade Representative (USTR), the Judiciary Committee points out that Section 512 of the DMCA is widely debated and that “some” have called on Congress to update it.

The Committee notes that the U.S. Government conducted an in-depth review over the past years of which the results are expected soon. This may in part be impacted by the European Union’s new Copyright Directive which hints at potential upload filters and increases in liability for online service providers.

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015. Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate,” the letter reads.

The Judiciary Committee doesn’t take a position in this debate but it stresses that adding the widely contested safe harbor language to the USMCA and other trade agreements, would not be wise at this point.

“[W]e find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing,” the letter, signed by House Judiciary Committee Chairman Jerrold Nadler and Ranking Member Doug Collins reads.

“For that reason, we do not believe a provision requiring parties to adopt a Section 512-style safe harbor system of the type mandated by Article 20.89 should continue to be included in future trade agreements,” the letter adds.

The Committee urges the USTR to take the matter seriously and consider the possible changes that are coming. This largely reflects the position of several major copyright industry groups, including the RIAA.

If the language is indeed removed or changed it will be a major setback for Internet services and various digital rights groups. This includes the Re:Create Coalition, which welcomed the inclusion of these protections last year.

A copy of the letter sent by the House of Representatives Committee on the Judiciary to the USTR is available here (pdf).