On February 28, the U.S. Supreme Court heard arguments in the case Garland v. Cargill, concerning ATF’s 2018 rule classifying bump stocks as machineguns. The case involves firearms parts but does not hinge on the Court’s interpretation of the Second Amendment. Rather, the case concerns the proper interpretation of federal statute and the amount of deference, if any, the administrative state should be given in interpreting federal statutes to their own ends.
Federal law precisely defines machinegun. 26 U.S.C. § 5845(b) provides,
The term “machinegun” means 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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Firearms or parts that meet this definition may only be transferred pursuant to a background check of the transferee, procurement of a $200 tax stamp, and the firearm must be registered in the Bureau of Alcohol, Tobacco, Firearms and Explosives’ National Firearms Registration and Transfer Record. Further, federal law prohibits civilian possession of machineguns manufactured after May 19, 1986.
A “bump stock” is an aftermarket device that replaces the standard stock on a commonly–owned semi-automatic rifle, such as the AR-15 or an AK-pattern rifle. The key feature of this item is that it allows for the firearm to slide backwards and forwards within the stock. When the rifle is fired, the recoil pushes the firearm further into the stock. When used as its manufacturer intended, the operator pushes forward on the rifle’s forend when firing, allowing the rifle to repeatedly slide backwards and then forwards into the operator’s trigger finger. As this maneuver constitutes separate “single function[s] of the trigger” for each shot fired, the items should not be considered machineguns under the federal definition. This same effect (bump-firing) can be achieved in numerous ways, perhaps most famously with a belt loop.
In 2010, ATF evaluated the leading bump stock manufacturer’s product and determined that the device was not a machinegun. ATF wrote,
The stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed… Accordingly, we find that the “bump-stock” is a firearm part and is not regulated as a firearm under Gun Control Act or the National Firearms Act.
Following the October 1, 2017 shooting in Las Vegas, where the shooter was discovered to have used rifles equipped with bump stocks, ATF re-evaluated its interpretation of the definition of machinegun. In December 2018, ATF issued a final rule reversing its previous interpretation of machinegun to include bump stocks. ATF did this by expanding upon the statutory language, including regulatory language stating,
The term “machine gun” includes a bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.
As the rule categorized bump stocks as post-1986 machineguns, owners were unable to register the items in the National Firearms Registration and Transfer Record and the items became contraband. Those in possession of bump stocks were required to destroy their property or turn the items into ATF. Civilians owned hundreds of thousands of bump stocks prior to ATF’s confiscatory rule. Those found in illegal possession of a machinegun face up to 10 years imprisonment and up to a $250,000 fine.
In January 2023, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, invalidated ATF’s rule classifying bump stocks as machineguns. The court accused ATF of attempting to sidestep Congress with their ban, noting that multiple bills had been introduced to prohibit the devices in the wake of the Las Vegas shooting. Further, the court explained,
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 regulation] 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.
The Fifth Circuit also noted that even if there were any ambiguity as to whether the definition of machinegun includes bump stocks, the rule of lenity (deference to the defendant) should apply. “[T]he rule of lenity would still require us to interpret the statute against imposing criminal liability” the court explained.
The Fifth Circuit rejected any appeal to so-called-Chevron deference, under which a court will defer to a government agency’s interpretation of an ambiguous statute. In doing so, the court determined such deference inappropriate, as the statute is not ambiguous.
NRA-ILA put forth similar arguments in its January 29 amicus brief to the U.S. Supreme Court. First, NRA-ILA explained that the statutory definition of machinegun is unambiguous in not encompassing bump stocks, as the definition carefully defines a mechanical process of a firearm, not how a human may choose to interact with the firearm. The NRA brief then went on to explain how in cases involving the imposition of criminal penalties, the rule of lenity must apply and how any appeal to Chevron deference would frustrate this important principle.
Justice Neil Gorsuch expressed these same concerns about the interpretation of statutes involving criminal penalties during oral argument. The justice’s first question for the federal government’s attorney asked, in part,
we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machineguns.
And then you -- you adopted an interpretive rule, not even a legislative rule, saying otherwise that would render between a quarter of a million and a half million people federal felons and not even through an APA process they could challenge subject to 10 years in federal prison, and the only way they can challenge it is if they're prosecuted, and they may well wind up dispossessed of guns, all guns in the future, as well as a lot of other civil rights, including the right to vote.
And I -- I guess I just want your reaction to -- to that. And I believe there are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated.
Appearing to express concern for those who legally purchased bump stocks prior to ATF’s administrative prohibition and how they might avoid running afoul of ATF’s interpretive whims, Justice Brett Kavanaugh asked the government’s counsel if the government would need to prove that a person in possession of a bump stock knew about the ATF’s new interpretation of federal law to be prosecuted. The government responded that such knowledge would not be required.
Appearing to take issue with the government’s position, Justice Gorsuch then asked if such a prosecution would be tolerable “Because people will sit down and read the Federal Register?” Justice Gorsuch then added, seemingly sarcastically, “That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog.” The official transcript noted laughter in the courtroom.
Justice Samuel Alito pressed the government’s counsel about the most logical interpretation of the statutory language concerning the “single function of the trigger,” suggesting it concerned a mechanical rather than human process. The justice noted,
When we speak of the function of an inanimate object, don't we normally look at what that inanimate abject -- object does? So why isn't the function of a trigger to release the hammer -- let's look at the -- the -- the M16, the AR-15, the function of -- why isn't the function of the trigger to release the hammer from the sear so that the hammer can swing forward and strike? Isn't that the most straightforward interpretation of this?
In contrast, Justice Katanji Brown Jackson seemed less concerned about the particulars of the statutory definition of a machine gun and more willing to grant broad authority to ATF to prohibit items that might appear to operate in a manner superficially similar to a machinegun, even if their mechanical processes are entirely different. Querying the federal government’s attorney, Jackson stated,
why do these various distinctions with respect to operations matter?
I mean, I -- I read this statute to be a classification statute, that Congress is directing everyone or us to identify certain kinds of weapons, and those certain kinds of weapons are being treated in a particular way. They're being prohibited.
And so I guess what I'm trying to understand is, if -- if it's true that, you know, the distinction that is being focused on here is the one between the movement of the trigger going back and forth or the trigger staying the same, I'm trying to understand why that matters for the purpose of this classification.
The outcome of Garland v. Cargill could have a broad impact on the administrative state’s ability to legislate that goes well beyond bump stocks. The Biden administration has often adopted creative and expansive interpretations of federal firearm statutes to push a gun control agenda that they have been unable to secure through the legitimate legislative process. These efforts include ATF’s 2022 “Frame or Receiver” rule, and ATF’s proposed “Engaged in the Business” rule – which seeks to restrict private firearm sales in a manner Congress has repeatedly rejected. In seeming acknowledgement of the dubious nature of their actions and likely to avoid the type of scrutiny visited upon the bump stock rule, ATF went out of its way to make clear that their proposed “engaged in the business” scheme “shall not apply to any criminal case.”
NRA-ILA will continue to bring readers further developments on this important case.
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