During recent oral argument in the 6th Circuit “bump stock” case, the government’s attorney was called out on the logical reach of their argument. One of the judges called out the government’s attorney, pointing out that the definition of “machinegun” (see 26 U.S.C. § 5845(b)) also includes firearms that “can be readily restored” to shoot fully automatically, and that by the government’s purported logic here, common AR-15 merely capable of having a ‘bump stock’ attached could therefore be considered “readily” convertible to a “machinegun”—a legal rationale that could lead to the banning of AR-15s themselves. The government’s attorney did not outright deny that logic and attempted to dodge the question.
As outlandish as the 6th Circuit judge’s assertion to government’s counsel may sound at first glance, such logic has already taken foot in at least one federal district court. In Parsons v. Colt et al., a case filed in Nevada federal court, the plaintiffs sued several firearms manufacturers for, amongst other claims, wrongful death for their manufacture and sale of their AR-15-pattern firearms given the ability of AR-15s to accept a “bump stock.” In response, defendants filed a motion to dismiss, and in the court’s ruling the judge denied a motion to dismiss as to the wrongful death claim against manufacturers based on this logic and instead certified the question to the Nevada Supreme Court for their interpretation of the reach of Nevada state law. The certified questions referenced in the ruling (see page 14) are:
Does a plaintiff asserting a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions have “a cause of action against the manufacturer or distributor of any firearm . . . merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death[,]” under Nevada Revised Statutes § 41.131?
Does Nevada Revised Statutes § 41.131 allow a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions because the statute is “declaratory and not in derogation of the common law”?
The above certified questions appear to still be pending a ruling by the Nevada Supreme Court. The docket entries for the certified question matter pending before the Nevada Supreme Court can be viewed here. The outcome of this case will have a direct and profound effect on the scope and magnitude of civil liability faced by the firearms industry.
FRAC will continue to monitor this case and provide updates as they come.