On January 6th, 2023, the 5th Circuit Court of Appeals issued a ruling on Cargill v. Garland. Thirteen out of the 16 judges ruled that bump stocks do not meet the definition of “machineguns,” thus overturning a previous ruling from a 3-judge panel on the same court.
Further, the majority ruled that the ATF and the Trump administration exceeded their authority in criminalizing bump stocks.
In 2017, the ATF changed its stance on bump stocks after a gunman opened fire in Las Vegas at a country music festival and, in doing so, effectively expanded the definition of a “machinegun” to include these range novelties.
At the time, Sen. Dianne Feinstein (D–Calif.), one of the most notorious gun-control advocates, indicated that only Congress had the authority to prohibit such devices and this was an overreach by the Trump administration. She wrote:
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….
Both 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.
Prior to 2017, the ATF claimed it didn’t have the authority to reclassify bump stocks as “machineguns.” But the agency was under pressure from the public and the Trump administration to do just that, to insist that semi-automatic firearms equipped with reciprocating stocks were “machineguns” under the law.
However, the definition of a “machinegun” didn’t change.
According to 26 U.S. Code § 5845 a “machine gun” is “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.”
In the Circuit Court’s ruling, they stated that a bump stock fails to meet these criteria.
The Mechanics
Judge Jennifer Elrod wrote, “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.”
Elrod further expounds, “That is, according to the Government, ‘function’ means ‘pull.’ But that argument fails on its face because a shooter still pulls the trigger of a semi-automatic weapon equipped with a non-mechanical bump stock each time he or she fires a bullet. Without a bump stock, the trigger activates because the shooter flexes his or her finger; with a bump stock, the trigger activates because the recoil of the previous shot re-engages the trigger and the shooter’s maintained force on the gun’s forebody bumps the trigger against the shooter’s finger. This is a distinction without a difference—the end result in both cases is that the trigger is pulled.”
SEE ALSO: Honolulu Issues First Concealed Carry License
Incorrect Legislation
The ATF rule took effect in March of 2019. Before then, bump stocks could be easily sold and purchased. By regulating these accessories as an item under the National Firearms Act, law-abiding citizens became felons overnight. Violators could face a punishment of up to 10 years in prison and a $250,000 fine.
In regard to the ATF’s ability to change its ruling on bump stocks, Elrod wrote, “If ATF could change the scope of criminal liability by issuing a regulation—free from the taxing obligations of bicameralism and presentment—the Executive could wield power that our Constitution reserves to the Legislature.”
The Constitution clearly leaves the creation of new laws up to the legislative branch of the government. By agencies changing opinions or rulings, they are effectively creating a law while circumventing and undermining the true legislative process.
Justice Neil Gorsuch in 2020 stated, “These days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared ‘reasonable’; and to guess again whether a later and opposing agency interpretation will also be held ‘reasonable’?”
Rule of Lenity
Judge Elrod also explains, “the National Firearms Act and Gun Control Act do not unambiguously criminalize the possession of a non-mechanical bump stock.” Because of this, the Court also followed the rule of lenity meaning that when a law is unclear or ambiguous the court should rule in favor of the defendant.
On the 5th Circuit, the judges who ruled against the ATF ban are Jennifer Elrod, Priscilla Richman, Edith Jones, Jerry Smith, Carl Stewart, Leslie Southwick, Catharina Haynes, Don Willett, James Ho, Kyle Duncan, Kurt Engelhardt, Cory Wilson and Andrew Oldham.
Stephen Higginson, James Dennis and James Graves dissented.
What Happens Now
The Supreme Court has, over the years, declined to get involved in bump stock-related cases. With the 5th Circuit’s current ruling, the high court may now be more willing to take up the issue.
Similar to the bump stock ordeal, we are seeing the ATF attempting to move the goalposts with respect to AR pistols and arm braces. The ATF has previously said in opinion letters that AR pistols equipped with stabilizing braces are lawful firearms.
However, now, the agency is trying to reclassify AR pistols with arm braces as short-barreled rifles, which are regulated under the NFA.
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It has been said before but bears repeating: ‘bump firing’ is a technique, NOT a piece of hardware. The technique requires coordination to make it work, granted a stock, or a shoestring or a belt loop (among other things) might make the technique easier to achieve.
The same ignorant ‘rationale’ wrongly applied to ‘bump stocks’ is now being applied to pistol braces in order to ‘ban’ them. Never mind that ruling is very likely a violation of the ADA as well as an infringement. Problem is that it will likely take an extended period (years?) to wend its way thru the courts before it is over turned.
The courts reasoning on the relationship of the trigger and a finger on the function of said trigger can be applied to forced reset triggers as well.
We need to be reimbursed for all the bump stocks that were destroyed!
How Feinstein hates Trump! She would allow all guns to be confiscated and destroyed, except for the one’s protecting her sorry butt. But let Trump ban bump stocks and she rushes to their defense. I hate to say I agree with Feinstein on anything but she got that right. Like they say even a blind squirrel finds a nut now and then! And trust me, she is as squirrelly as they come!!