Remember bump stocks? Those so-called “machine guns” banned by ATF at then-President Donald Trump’s behest? Well, they’re back in the news and the news is good. In Cargill v. Garland, the 5th Circuit Court of Appeals has ruled, rather emphatically, that the ATF’s bump stock rule is unconstitutional. The 5th Circuit’s en banc 16-judge panel split 13-3 in favor of the plaintiff, Michael Cargill.
How We Got Here
The court notes that ATF routinely and repeatedly stated that non-mechanical bump stocks were not firearms. A letter from the ATF cited in the majority opinion read, in part, that “…we find that the ‘bump stock’ is a firearm part and is not regulated as a firearm under the Gun Control Act or the National Firearms Act.”
But on October 1, 2017, a deranged individual murdered more than 50 people at a Las Vegas concert and wounded another 500. Evidence suggests he used several bump stock-equipped weapons, though some have questioned that evidence.
Identical bills banning bump stocks were introduced in the Senate and House of Representatives within 10 days of the murders. Those bills were still being considered when the ATF, pressured by the Trump Administration, issued a “Final Rule” classifying bump stocks as “firearms,” thus reversing their previous position and ending Congressional action.
Cargill’s Bump Stock Lawsuit
Michael Cargill, the plaintiff, legally owned two non-mechanical bump stocks when the rule was adopted. He surrendered them to the ATF at that time. He then sued the ATF and other federal officials under the Administrative Procedure Act.
Cargill’s lawsuit claimed that “the ATF lacked authority to promulgate the Final Rule because its interpretation of machinegun conflicts with the unambiguous statutory definition. And even if the statute is ambiguous, Cargill says, it should be construed in his favor because of the rule of lenity. And because the statute concerns criminal penalties, the Government’s interpretation is not entitled to deference under Chevron…Cargill also argues that the Final Rule constitutes an unconstitutional exercise of legislative power by an administrative agency.”
We’ll unpack all that in a moment. Cargill’s initial suit was filed in federal district court in Texas. After a one-day bench trial, the court ruled in favor of the ATF. Cargill then appealed to the 5th Circuit, which has now reversed the original ruling.
Breaking Down Cargill’s Claims on the Bump Stock Rule
Lack of Authority
Cargill’s first claim is that the ATF’s Final Rule is invalid because its definition of a machine gun differs from what Congress said when it passed the relevant statutes. The 5th Circuit’s opinion dives into the statutory definition, including grammar usage. The decision may be found online if that interests you. The upshot is that the court agreed with Cargill’s claim and demonstrates that Congress was indeed very clear about how it defined a machine gun, and bump stocks do not fit the definition.
Cargill also claimed that, even if the definition was not clear, the court should employ the Rule of Lenity to find in his favor. The Rule of Lenity means that, if a statute can reasonably be interpreted two ways, the ruling shall favor the defendant. Cargill is classified as the defendant in this instance because the Final Rule was employed to make him surrender his property. I tend to think of the Rule of Lenity as being roughly analogous to the “tie goes to the runner” rule in baseball. The 5th Circuit agreed with this as well, unlike the federal district judge.
The Chevron Deference Doctrine
The Chevron Deference Doctrine is a tool used by the courts to determine the regulatory authority of federal agencies like the ATF. It basically means that the court defers to the supposed agency experts in matters beyond the court’s general understanding. Federal agencies get sued all the time, so Chevron Deference is one of their major defenses when things get down in the weeds.
But Chevron Deference cannot be invoked when regulatory violations carry criminal sanctions, as the ATF’s Final Rule on bump stocks does. Possession of an illegal machine gun carries up to 10 years in prison. The federal district court nonetheless allowed Chevron Deference. The 5th Circuit overturned that ruling as well, meaning that they did not accept the ATF’s definition of bump stocks as machine guns, instead relying on the Congressional definition.
The opinion also said that “we note a third reason why Chevron deference does not apply in these circumstances: that ATF has adopted an interpretive position that is inconsistent with its prior position. To apply Chevron here would contravene one of the rule’s central purposes: ‘to promote fair notice to those subject to criminal laws.’ If we were to defer to the Government’s position, the Government could change the scope of criminal liability at any time. Indeed, that is exactly what it has done here.”
So, the court doesn’t like that ATF gets to change their minds on what is legal and illegal outside of Congressional deliberation. Which, of course, is exactly what they have been doing, albeit at the direction of their political masters in the White House and the Justice Department. And that brings us to the next charge.
Usurping Congressional Authority
The 5th Circuit also agreed with Cargill that, in issuing the Final Rule, especially with two bills before Congress, the ATF unlawfully usurped legislative power granted solely to Congress in Article I of the Constitution.
Even the Grand Dame of gun control, Senator Dianne Feinstein, criticized the Final Rule. Her statement, quoted in the opinion, is worth repeating in its entirety:
“Until today, the ATF has consistently stated that bump stocks could not be banned through regulation because they do not fall under the legal definition of a machine gun.
Now, the department has done an about face, claiming that bump stocks do fall under the legal definition of a machine gun and it can ban them through regulations. The fact that ATF said as recently as April 2017 that it lacks this authority gives the gun lobby and its allies even more reason to file a lawsuit to block the regulations.
Unbelievably, the regulation hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it. The gun lobby and manufacturers will have a field day with this reasoning. What’s more, the regulation does not ban all devices that accelerate a semi-automatic weapon[‘]s rate of fire to that of a machine gun.
Both the Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks. The law has not changed since 1986, and it must be amended to cover bump stocks and other dangerous devices like trigger cranks. Our bill does this-the regulation does not.”
Now, far be it from me to support Dianne Feinstein’s vision of what should be banned, but she is absolutely correct that only Congress has the authority to even attempt it. ATF and other agencies make rules that carry the weight of federal law. The Constitution does not grant them any such authority, meaning they step way over the line whenever they make such rules.
The court did not explicitly rule on this charge, but still quoted Carter v. Welles-Bowen Realty, Inc. (2013), saying that “[W]e should feel deep discomfort at allowing an agency to define the very rules it will enforce by implicit delegation. Such a delegation “turn[s] the normal construction of criminal statutes upside down, replacing the doctrine of lenity with a doctrine of severity.” They added that “The delegation [of legislative authority to the Executive] raises serious constitutional concerns by making ATF the expositor, executor, and interpreter of criminal laws.”
The opinion continued, saying that “We do not reach this issue because we do not have to. But if we did, it would only provide more support for the conclusion that a semi-automatic rifle equipped with a non-mechanical bump stock is not a machinegun for purposes of federal law.”
The Bump Stock Decision Moving Forward
The government will undoubtedly appeal this decision. It remains to be seen whether the Supreme Court will take it up. Meanwhile, this ruling could have a major impact on two other cases in which the ATF brazenly changed their minds on what is and isn’t legal.
Frames and Receivers
ATF has recently stuck their foot in a pile of you-know-what with the Final Rule on Frames and Receivers. The Biden Administration has been targeting so-called “Ghost Guns” and, since Congress hasn’t acted, they’ve directed the ATF to do their dirty work.
Essentially, as with bump stocks, 80 percent frames and receivers were perfectly legal until ATF decided they weren’t. Facing a well-directed federal lawsuit (Vanderstok v. Garland), ATF made it worse with an open letter to FFLs that once again changed the definition after the so-called “Final Rule” was issued. That was probably in response to a First Amendment charge, but it has only made things worse. Polymer80 just filed another suit after the open letter’s publication. We will be following that one too.
But one of Vanderstok’s main charges is that ATF lacks the power to make such rules in the first place and it certainly lacks the authority to change them midstream, thus turning millions of otherwise lawful gun owners into felons overnight. The Cargill case just added another big gun to that line of attack. We’ll see how it plays out.
The Upcoming Pistol Brace Rule
We’ve known that ATF was going after pistol braces for months now, and their reclassification as NFA items has been a foregone conclusion. But the implications from the Vanderstok case caused them to push that decision back from late December to sometime in February.
Now, with Cargill to contend with as well, it’s difficult to see how ATF can justify changing their mind as they did with bump stocks and 80 percent frames and receivers. If Cargill stands, both the Frames and Receivers rule and the anticipated Pistol Brace Rule may be dead on arrival. Again, we’ll keep you updated.
A Good Time for the Second Amendment
2022 was a good year for gun rights. The Bruen Decision is the gift that keeps on giving, despite several gun control states’ wild gyrations to avoid it. Vanderstok and Cargill are looking good for 2023, but it’s still early. Vanderstok is still being adjudicated and Cargill will certainly be appealed. Still, things are mostly going our way and both those cases seem to be strong. Stay tuned.
