Set For A Supreme Showdown? Fifth Circuit Rejects Bump Stock Ban In Contrast To Other Circuits

Authored by Jonathan Turley,

The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun.

On December 18, 2018, the ATF issued a rule that bump stock would now be considered unlawful as machine guns and gave bump stock owners 90 days to surrender the devices. After that deadline, possession would be treated as a federal crime. The specific statement read, in part:

The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices — meaning “bump fire” stocks, slide-fire devices, and devices with certain similar characteristics — are “machineguns” as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

On January 6, 2023, the Fifth Circuit handed down its decision rejecting the rule. It explained the technical aspects for the case as well as the clear shift in interpretation by the ATF:

“A bump stock 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. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.”

Judge Jennifer Walker Elrod wrote in her majority opinion that “[p]ublic pressure to ban bump stocks was tremendous” after the mass shooting in Las Vegas on October 1, 2017. However, “[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.”

The majority further explained:

The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.

The holding was supported by a rule of lenity that “penal laws are to be construed strictly.” She noted that, as in United States v. Wiltberger, the Court had long followed the rule which Chief Justice Marshall described as “founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”

Thirteen judges agreed with the conclusion though twelve (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reversed on lenity grounds while eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reversed on the ground that federal law unambiguously fails to cover non-mechanical bump stocks.

Judge Stephen Higginson, joined by Judges Dennis and Graves, dissented, including a rejection of the lenity argument:

the Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations.

Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity. In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law….

The ATF is likely to find the ruling far less than “tender” but it is well-reasoned.  It also stands in contrast to other circuits which reached opposing results. That creates an optimal status for Supreme Court review with a split in the circuits. The D.C. Circuit in Guedes, the Sixth Circuit in Gun Owners of America, and the Tenth Circuit in Aposhian came to opposing conclusions. These are well-reasoned opinions on a difficult question.

There is another reason why Cargill may be appealing to some on the Court. The majority specifically rejected affording the ATF Chevron deference. The reason is that the agency had not relied upon Chevron and seven of the judges rejected Chevron deference when the statute imposes criminal penalties.

First, Chevron does not apply for the simple reason that the Government does not ask us to apply it. Indeed, the Government affirmatively argued in the district court that Chevron deference is unwarranted. As other jurists have recognized in this context, that means that the Chevron argument has been waived—not merely forfeited. . . .

That would seem to be the end of the inquiry, but we recognize that one of our sister circuits has held that Chevron cannot be waived. Guedes, 920 F.3d at 21–23; see also Gun Owners of America, 19 F.4th at 899 n.5 (White, J., in support of affirmance). To be sure, we have never held in a published case that Chevron must be raised by the Government in order to apply. . . . But the conclusion is obvious, and flows from well-settled waiver principles. After all, that a court should defer to the Government’s expressed interpretation is just a legal argument, and a party waives a legal argument if it fails to raise the argument when presented with the opportunity. . . .

If ordinary waiver principles were not enough, we note also that it would contradict Chevron‘s central justification to defer to the Government’s interpretation without its urging us to do so. The justification is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people.’” Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (quoting Epic Systems v. Lewis, 138 S. Ct. 1612, 1630 (2018) and Chevron, 467 U.S. at 865)). Here, the Government made a clear policy choice by declining to seek Chevron deference. The very interest underlying Chevron demands that we respect the Government’s choice and interpret the statute according to traditional principles of statutory interpretation. . . .

The Chevron framework does not apply for a second, independent reason: the statute which the Final Rule interprets imposes criminal penalties. As noted above, the primary reason for Chevron is that it allows the executive branch to make policy decisions through the accrued expertise of administrative agencies. But in exchange, Chevron deference shifts the responsibility for lawmaking from the Congress to the Executive, at least in part. That tradeoff cannot be justified for criminal statutes, in which the public’s entitlement to clarity in the law is at its highest. . . .

Finally, we note a third reason why Chevron deference does not apply in these circumstances: that ATF has adopted an interpretive position that is inconsistent with its prior position. To apply Chevron here would contravene one of the rule’s central purposes: “to promote fair notice to those subject to criminal laws.” . . .

This is one of the most interesting opinions in the gun-rights area. However, under cases like Bruen or those moving back toward the Court, the underlying issue is the interpretation of the Second Amendment. This case is purely a statutory interpretation case. While it raises constitutional questions in issues like the Separation of Powers, it can be decided without expanding or limiting the Second Amendment jurisprudence.

On the face of the opinion, it (and the prior ATF interpretation) makes obvious sense from both mechanical and legal perspectives. Congress may have a different view but this is a major change to the law by agency fiat. (The change came under the Trump Administration).

The case is so compelling not just on its logic but the basis for a Supreme Court review that I am tempted to assign it as part of my Supreme Court class. Hopefully, the Court can resolve my dilemma by accepting the case and placing it on the docket. If any justices are reading this, I would appreciate the academic accommodation.

The underlying issue is likely something that Congress would examine. Here is a video showing how the bump stock can be used to simulate a machine gun’s rate of fire:

Here is the opinion: Cargill v. Garland