Bump Stock Ban Circuit Split Puts Its Enforcers in a Tough Spot

It wasn’t until a Las Vegas shooter killed 58 people and wounded hundreds of others in just minutes on Oct. 1, 2017, that anyone—including the US Bureau of Alcohol, Tobacco, Firearms and Explosives—seemed to care about bump stocks.

There was no general bump stock ban then, and the agency had actually approved specific models so long as the feature enabling a gun to shoot multiple rounds on a single trigger pull wasn’t “automatic.”

Bump stocks aren’t used for target practice, self defense, or sport, said South Texas College of Law professor Dru Stevenson. When affixed to a semi-automatic rifle, they sort of just spray bullets. They’re only really “useful” to someone who wants to kill kids in a school yard, or wants a power rush, he said.

After the Vegas shooting, ATF, under then-President Donald Trump, in 2018 issued a rule equating bump stock-outfitted semi-automatic rifles with fully automatic weapons for which civilian possession has long been banned. The new rule required stock owners to surrender or destroy their devices.

The ban has been repeatedly challenged, but unlike most firearms regulation lawsuits, the fight has had little to do with the Second Amendment right to keep and bear arms. Instead, it’s become one about agency deference, Stevenson said.

The issue has divided federal appellate courts and, in at least one instance, judges on the same court. Against that backdrop, the ATF and the Justice Department have been reluctant to prosecute bump stock owners.

Circuit Split

Michael Cargill, the Texas gun shop owner who last month won a US Court of Appeals for the Fifth Circuit ruling rejecting the ban, has been explicit about the nature of his fight. Making a podcast appearance after his victory, Cargill said he wanted to challenge the ban not on Second Amendment grounds, but on the grounds that the ATF, and indeed any agency, lacks the authority to make law.

The implications of the dispute are by design much broader than the bureau’s power to ban bump stocks.

The decision, Cargill v. Garland, created a circuit split over ATF’s specific authority to regulate “non-mechanical” bump stocks.

Because non-mechanical—as opposed to automatic—bump stocks require “continued human manipulation” to create a machine gun-like shooting effect, eight members of the Fifth Circuit’s en banc majority said they don’t clearly fall within the plain text of the statute. And even if the statute were ambiguous—which two other circuits have held—12 judges in the majority said they’d apply the rule of lenity—not Chevron deference—meaning the law’s lack of clarity should inure to the benefit of those who would be held to it.

Almost four decades old, Chevron provides that when a statute is unclear, courts should defer to the administering agency’s reasonable interpretation of it. Conservative critics say the doctrine cedes too much legislative power to administrative agencies.

By drawing the line where the ATF once did too, the court’s narrowly-tailored ruling sidestepped the device’s mechanical counterparts that may run afoul of the long-standing federal laws banning automatic weapons.

The court was “slicing the cheese mighty thin as they say, but this view is consistent with the Supreme Court’s trend of being skeptical of criminal statutes that are vague and leave key definitions to executive agencies,“ said Brandon Essig, a white collar partner at Lightfoot, Franklin & White LLC.

The courts of appeals for the Tenth and D.C. Circuits have rejected challenges to ATF’s rule, concluding that the agency’s interpretation of the law is entitled to deference. The Sixth Circuit upheld the rule too in an equally divided en banc ruling.

Chevron v. Plain Text

DOJ has disclaimed any reliance on Chevron in defending the ban, saying its interpretation is consistent with the plain text of the statute, and conceding that it doesn’t apply to criminal laws. If the validity of its bump stock ban turns on Chevron deference, ATF has said it would rather see the rule “set aside.”

Even so, appellate courts that have upheld ATF’s ban have done so by invoking the doctrine. An agency’s lawyers can’t waive Chevron if the underlying agency action is the kind to which Chevron ordinarily applies, according to the US Court of Appeals for the District of Columbia Circuit.

In a statement accompanying the US Supreme Courts’ 2020 denial of certiorari which let that D.C. Circuit ruling stand, Justice Neil M. Gorsuch said applying Chevron when the government disclaims it is the equivalent of placing “an uninvited thumb on the scale in favor of the government.”

If the justification for Chevron is that policy choices ought to be left to the executive branch, then courts must give equal respect to its decision not to make policy choices in interpreting legislation, according to Gorsuch.

He also focused on the law’s criminal penalties. “Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct,” the justice said then.

Risks of Appeal

Because there is a risk that an adverse ruling could upset the administrative state more broadly, DOJ will have to do “some real soul searching” before asking the high court to take up Cargill, Stevenson said. The professor is among those who believes the Fifth Circuit got it wrong.

On the other side, Amy Swearer, a legal fellow at the Heritage Foundation, says the Fifth Circuit’s conclusion is the natural result from a textualist’s perspective.

Although ATF will have a difficult time enforcing different policies in different circuits pending a resolution of the split, given the potentially broad implications of the decision, the agency could be inclined to wait for a petitioner in another case to raise it. The agency might not be eager to “open that can of worms,” Swearer said.

And in the meantime, there is nothing to stop ATF from continuing to go after many other types of machine gun conversion devices in circulation, even in the Fifth Circuit.

Although Essig said the Fifth Circuit’s decision will make it more difficult for ATF to bring criminal charges over violations of the bump stock ban, that isn’t how the agency has generally enforced the rule.

Bloomberg Law was able to find only one instance where a criminal charge of unlawful possession of a machine gun was brought against a bump stock owner, and the government ultimately abandoned the count.

ATF has instead opted for civil enforcement mechanisms, like cease and desist letters. If the manufacturer disagrees, they can sue, and duke it out in court. Usually, the manufacturers will comply with the agency’s directive pending resolution of any dispute. If they don’t, the agency has other intermediate enforcement options.

Not long after Cargill, ATF filed a lawsuit under the federal criminal injunction statute, 18 USC §1345, against Rare Breed Triggers in the Eastern District of New York over trigger assemblies that can be used with AR-15 semi-automatic rifles to mimic machine gun fire, winning a temporary restraining order on Jan. 25.

The manufacturer is seeking to have the lawsuit tossed for lack of jurisdiction.

Ordinarily used in fraud cases to seize assets, it appears to be the first time the law has been used to enforce a firearms ban.

The novel approach is “arguably a safer legal maneuver than a criminal prosecution for possession of a bump stock,” said Essig, a former prosecutor. It is a civil proceeding, and does a better job of preserving the status quo, he said.