The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) lacked the authority to declare non-mechanical bump stocks “machineguns,” the full Fifth Circuit Court of Appeals held on Friday.
The decision, Cargill v. Garland, is the latest example of the courts foiling attempts by the federal bureaucracy to exercise the legislative power the Constitution vests with Congress, but until the Supreme Court’s separation of powers jurisprudence catches up with the runaway administrative state, the Cargill victory holds limited import.
On Oct. 1, 2017, a gunman murdered more than 50 innocent people in Las Vegas, injuring another 500. The murderer used several weapons, many of which had bump stocks attached. A bump stock, as the court in Cargill explained, “is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed.”
Less than two weeks after the Las Vegas massacre, two bills prohibiting bump-stock devices were proposed in Congress. But before Congress could act on the legislation, the ATF published notice of proposed rulemaking, stating the ATF intended “to reverse its previous interpretation that non-mechanical bump stocks are not machineguns for purposes of the National Firearms Act and Gun Control Act.”
The National Firearms Act and Gun Control Act make it a crime to “transfer or possess a machinegun,” and define a “machinegun” to mean “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 intended for use “in converting a weapon into a machinegun…”
Bump stocks were first invented in the early 2000s. Soon after, the ATF concluded that mechanical bump stocks qualify as machine guns under the National Firearms Act and Gun Control Act, but that non-mechanical bump stocks, which required the shooter to “apply constant forward pressure with the non-shooting hand and constant rearward pressure with the shooting hand,” were not illegal machine guns. But following the Las Vegas shooting, the ATF purported to modify the definition of machine gun and stated that the statutory term “machinegun” “includes bump-stock-type devices.”
After the ATF published its final rule redefining machine guns in 2018, Michael Cargill, who had lawfully acquired two non-mechanical bump stocks, surrendered them to the ATF and then filed suit against the ATF. In his lawsuit, Cargill argued the ATF lacked authority “to promulgate the Final Rule because its interpretation of machinegun conflicts with the unambiguous statutory definition.” Among other arguments, Cargill also asserted that by defining a non-mechanical bump stock as “machinegun,” the ATF unconstitutionally exercised Congress’s legislative power.
A federal court rejected Cargill’s claims following a one-day trial. On appeal, the Fifth Circuit Court of Appeal held the ATF properly classified non-mechanical bump stocks as “machineguns.” Cargill then sought review by the full court of appeals and, on Friday, the majority of the 16 members of the en banc Fifth Circuit Court of Appeals reversed, holding the federal statutory definition of machine guns “unambiguously fails to cover non-mechanical bump stocks,” and that to criminalize such bump stocks, Congress must act legislatively.
In striking the ATF’s rule that non-mechanical bump stocks qualified as “machineguns,” the Fifth Circuit focused on the statutory language Congress used in the National Firearms Act and Gun Control Act to define “machinegun” and the mode of operation of a non-mechanical bump stock. Specifically, the court stressed that to qualify as a machine gun under the statute, the weapon must shoot automatically more than one shot “by a single function of the trigger.” But because a semiautomatic rifle equipped with a non-mechanical bump stock only fires one shot each time the trigger functions, the Fifth Circuit concluded it did not qualify under the statute as a machine gun.
Because the ATF’s redefinition of “machinegun” conflicted with Congress’s statutory definition of that term, the Fifth Circuit’s en banc decision held it need not decide whether the ATF’s rule was “an exercise of legislative power, in violation of the Constitution’s vesting of all such power in Congress. U.S. Const. art. I, § 1.” That the federal appellate court in Cargill sidestepped the separation of powers question, renders the decision of limited value, and does little to limit the constitutionally ungirded authority of the administrative state.
Nonetheless, the Cargill decision provides a small check on the ATF and its attempt to legislate by regulation and tees up this narrow issue for the Supreme Court, as three other federal circuit courts of appeal had previously upheld the ATF’s bump-stock rule. But it could be some time before the high court delves into this issue because the Fifth Circuit left the question of an appropriate remedy to the lower court. Accordingly, until the lower court enters an injunction or otherwise declares the ATF’s bump stock rule invalid, review by the Supreme Court is unlikely.
Even then, the issue may never make it to the Supreme Court if Congress acts to criminalize the possession or use of bump stocks. While that would be a defeat to Cargill and others who seek to possess bump stocks — absent a ruling that the Second Amendment guarantees a right to bump-stock devices, something unlikely — it would be a victory for the constitutional separation of powers that granted Congress, not unelected bureaucrats, the power to pass laws.
But until the Supreme Court provides a more fulsome check on the federal agencies ruling our lives by fiat, the Cargill decision and its aftermath will represent but a flash of a reminder of how far our constitutional order has fallen.