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 bump stock ruling 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.