Bump stocks and machine guns: 5th Circuit is fourth appellate court to hear case on ATF rule

This case focuses on the definition of a machine gun and whether or not the ATF made a legislative rule.

Updated: October 7, 2021 - 11:34pm

This week, the 5th Circuit Court of Appeals became the fourth appellate court to hear a case involving the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) rule banning bump stocks on firearms that was promulgated under the Trump administration.

Then-President Trump started the process that led to the ATF's rule, which makes bump stocks equivalent to illegal machine guns in terms of federal law. The regulatory action followed the October 2017 Las Vegas concert massacre, where the shooter used a rifle equipped with a bump stock to fire into the crowd, killing 58 and injuring over 400.

Over 500,000 bump stocks were legally owned by Americans before the ban went into effect, after which owners had to turn them into the ATF or destroy them without receiving compensation, lest they risk up to 10 years in prison and a $250,000 fine, according to the New Civil Liberties Alliance (NCLA).

In the case before the 5th Circuit, Michael Cargill v. Garland, et al., the plaintiff is a U.S. Army veteran and gun shop owner in Austin, Texas. When the bump stock rule went into effect, he turned in his bump stocks to the ATF to follow the law, and then sued the government over the new interpretation of the rule. 

The case has hinged on whether the ATF improperly issued a "legislative rule," thereby usurping the sole legislative authority of Congress under the Constitution.

Caleb Kruckenberg, legal counsel for NCLA on behalf of Cargill, argued in court on Wednesday that bump stocks do not alter the mechanics of the trigger of semiautomatic firearms. He stated that the lower court's ruling acknowledged the ATF made a legislative rule while not acknowledging the "ATF's own concession that it lacked the legal authority to issue any legislative rules."

Mark Stern, the Justice Department's legal counsel, argued that firearms with bump stocks work like machine guns. He noted that in a decision by a three-judge panel of the 6th Circuit Court of Appeals striking down the ATF rule, "there is no practical difference between a prototypical machine gun where you have to keep your pressure inward, and the bump stock, where you keep your pressure outward."

Stern also asserted that the ATF's rule on banning bump stocks was the proper reading of the existing statute regarding what constitutes a machine gun, and that the agency had simply erred previously in being unclear on the definition of that type of firearm.

The 6th Circuit Court has since vacated its decision against the government, pending an en banc hearing, when the entire court will hear and decide the case. 

The 10th and D.C. circuit courts have also decided cases involving the ATF bump stock rule, both in favor of the government.

NCLA, which represented the plaintiff in the case decided by the 10th Circuit Court, has appealed the court's decision to the Supreme Court. A total of 20 state attorneys general have filed amici curiae, or "friend of the court," briefs on behalf of the NCLA's client, requesting that the Supreme Court hear the case.

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