The U.S. Supreme Court continues to add high-profile gun rights cases to its docket. One of the new cases involves a First Amendment challenge brought by the National Rifle Association (NRA). The second case centers on whether a “bump stock” – an attachment that converts a semiautomatic rifle into a fully automatic weapon – qualifies as a “machinegun” under federal law.
National Rifle Association of America v. Vullo
The NRA alleges that Maria T. Vullo, the former Superintendent of the New York State Department of Financial Services (DFS), used her regulatory power to threaten NRA business partners and coerce them into disassociating with the NRA, in violation of its rights to free speech and equal protection.
In 2017, DFS opened an investigation into the legality of certain NRA-endorsed insurance programs that provided coverage for losses caused by licensed firearm use, even in circumstances where the insured intentionally killed or injured someone or otherwise engaged in intentional wrongdoing. Three DFS-regulated entities ultimately entered into consent decrees with DFS, whereby they acknowledged that some of their NRA-endorsed insurance programs violated New York law.
In April 2018, in the wake of the tragic school shooting in Parkland, Florida, Vullo, in her capacity as Superintendent of DFS, spoke out against gun violence via industry-directed “guidance letters” and a press statement issued by the New York State Governor’s Office. She called upon banks and insurance companies doing business in New York to consider the risks, including “reputational risks,” that might arise from doing business with the NRA or “similar gun promotion organizations,” and she urged the banks and insurance companies to “join” other companies that had discontinued their associations with the NRA.
After multiple entities severed their ties or determined not to do business with the NRA, the NRA filed suit. The Second Circuit Court of Appeals dismissed the free speech claims, determining that Vullo is entitled to qualified immunity. In reaching its decision, the appeals court rejected the NRA’s claim that Vullo engaged in unconstitutionally threatening or coercive conduct.
According to the Second Circuit, Vullo’s statements do not cross the line between an attempt to convince and an attempt to coerce. “In our view, however, it was reasonable for Vullo to speak out about the gun control controversy and its possible impact on DFS-regulated entities,” the court wrote. “The general backlash against gun promotion groups and businesses that associated with them was intense after the Parkland shooting. It continues today.”
The appeals court further found that even assuming the NRA sufficiently pleaded that Vullo engaged in unconstitutionally threatening or coercive conduct, Vullo was nonetheless entitled to qualified immunity because the law was not clearly established and any First Amendment violation would not have been apparent to a reasonable official at the time. “The NRA has not cited, and we are not aware of, any case analogous to this one, where a government official has been held to have violated the First Amendment by making statements like those in the Guidance Letters and Press Release, which use only suggestive language and rely on the power of persuasion,” the court wrote.
The U.S. Supreme Court granted certiorari on November 3, 2023. The Court agreed to decide the following question: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.
Garland v. Cargill
The transfer or possession of any new “machinegun” has been prohibited 18 U.S.C. 922(o)(1) since 1986. The National Firearms Act (26 U.S.C. 5845(b)) defines a “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The definition also includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”
The dispute before the Court centers on whether a “bump stock” satisfies the above definition. As described in court documents, a bump stock is a device designed and intended to permit users to convert a semiautomatic rifle so that the rifle can be fired continuously with a single pull of the trigger, discharging potentially hundreds of bullets per minute. In the wake of a 2018 mass shooting in Las Vegas involving the use of bump stocks, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published an interpretive rule concluding that bump stocks are machineguns as defined in Section 5845(b).
The Fifth Circuit Court of Appeals struck down the ATF rule, holding that the statutory definition of “machinegun” does not encompass bump stocks. “A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act,” the appeals court wrote. While the Sixth Circuit Court of Appeals reached the same conclusion in a similar suit, the U.S. Court of Appeals for the District of Columbia Circuit upheld the ATF rule, creating a circuit split. The U.S. Supreme Court granted certiorari on November 3, 2023. The justices have agreed to consider the following question: Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”
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