The U.S. Supreme Court hears oral arguments this week regarding the federal ban on bump stocks, a disturbing sequence of events that culminated in a federal agency branding hundreds of thousands of Americans as criminals without congressional action.
This is one regrettable Trump-era rule that the Biden administration continues to defend enthusiastically.
Though Garland v. Cargill is a case about what counts as a machine gun, it is not a case about the Second Amendment. Instead it is a case about statutory interpretation and the structural Constitution.
In other words, which branch of government gets to write our criminal laws? The Constitution gives that job to Congress, but the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) thinks it can criminalize bump stock possession on its own.
My organization, the New Civil Liberties Alliance, is proud to represent respondent Michael Cargill before the high court. Mr. Cargill is a U.S. Army veteran and firearms instructor who owns two bump stocks and turned them in to his local ATF office, consistent with the ban’s instructions, shortly after filing suit.
In Cargill, the justices will decide whether a semi-automatic rifle equipped with a bump stock is a “machinegun” within the meaning of the Firearm Owners Protection Act of 1986, a statute that broadly banned machine guns. A bump stock is a rifle stock that helps shooters fire more quickly, but it does not alter the way the trigger mechanics function at all.
For this reason, the federal government had expressly authorized the sale and ownership of bump stocks since 2002. But in 2018, at the White House’s direction, ATF abruptly reversed itself and issued a rule announcing that bump stocks are illegal machine guns, and requiring owners who legally purchased their bump stocks to turn them in to law enforcement or destroy the devices within 90 days.
In so doing, ATF made criminals of half a million people and inflicted property losses exceeding $100 million. This kind of administrative lawmaking, especially the creation of criminal liability, is flatly unconstitutional: federal agencies cannot usurp Congress’ sole authority to enact criminal laws.
ATF has a fickle relationship to bump stocks. The agency issued fifteen separate letters advising that certain “non-mechanical” bump stocks are in fact lawful accessories for firearms between 2008 and 2017 under the Bush, Obama, and Trump administrations.
Having permitted the sale and possession of bump stocks for over a decade, ATF now contends that federal law has always, and unambiguously, banned the sale and possession of bump stocks. Its volte-face made felons-by-fiat of every person who has ever owned a bump stock, despite repeated ATF assurances that such accessories were legal.
Even one of Congress’ foremost advocates for gun control, the late Sen. Dianne Feinstein, recognized ATF’s position here is untenable. When the Justice Department announced that it would ban bump stocks in 2018, she accurately anticipated that ATF’s variable and contradictory guidance would undermine its legal position. She also said trying to distinguish between a bump and a pull of the trigger was not supportable.
“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,” Feinstein said. “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.” She added, “Both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks.”
The relevant criminal penalties allow for up to ten years in prison and $250,000 in fines. Bump stock owners have every reason to fear prosecution.
After all, the Department of Justice now says they have committed a crime. ATF and the Justice Department maintain that they will not prosecute pre-deadline bump stock owners, but only as a matter of prosecutorial discretion.
Cool comfort indeed. As we have seen, ATF and the Justice Department are mercurial. What’s more, there are other contexts (such as having a federal firearms license) where having committed a felony could have consequences. And ATF has been studiously silent about that.
With its decision to grant certiorari in Cargill, NCLA is optimistic that the Supreme Court will affirm the en banc ruling of the U.S. Court of Appeals for the Fifth Circuit, which held that banning bump stocks requires an act of Congress.
Doing so is right on the law — and it is doing right by citizens whose trust ATF wantonly violated.
Only Congress can create criminal liability. Because Congress has not yet voted to ban bump stocks, ATF has no authority to outlaw them.
