Bump fire stock ban atf trump
Nick Leghorn for TTAG
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Since the National Firearms Act of 1934, federal law has heavily regulated machineguns. Indeed, as proposed, that law was known to many as “the Anti-Machine Gun Bill.” The possession or transfer of a machinegun was eventually banned through the Gun Control Act of 1968 and the Firearms Owners’ Protection Act of 1986 [with some guns grandfathered in -EV]. Today, possession of a machinegun is a federal crime, carrying a penalty of up to ten years’ incarceration.

This appeal concerns a regulation promulgated by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, purporting to interpret the federal prohibition on machineguns as extending to bump stocks. 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.

But ATF reversed its longstanding position in 2018, subjecting anyone who possessed a bump stock to criminal liability. ATF reversed its position to a great extent in response to the tragic events that occurred in Las Vegas on October 1, 2017. On that day, a deranged gunman murdered dozens of innocent men and women, and injured hundreds more. To carry out this appalling crime, the gunman used many weapons and utilized many accessories—including bump stocks.

Public pressure to ban bump stocks was tremendous. Multiple bills to that effect were introduced in both houses of Congress. But before they could be considered in earnest, ATF published the regulation at issue here, short-circuiting the legislative process. Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation at issue. He now challenges the legality of that regulation, arguing that a bump stock does not fall within the definition of “machinegun” as set forth in federal law, and thus that ATF lacked the authority to issue a regulation purporting to define the term as such.

Cargill is correct. 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.

But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability. A rich legal tradition supports the “well known rule” that “penal laws are to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–95 (1820). As Chief Justice Marshall explained long ago, the rule “is 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.” Id. at 95.

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 definition of “machinegun” as set forth in the National Firearms Act and Gun Control Act does not apply to bump stocks. And if there were any doubt as to this conclusion, we conclude that the statutory definition is ambiguous, at the very least. The rule of lenity therefore compels us to construe the statute in Cargill’s favor. Either way, we must REVERSE.

— Circuit Judge Jennifer Walker Elrod in Cargill v. Garland

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68 COMMENTS

  1. [Filed under “duh”]? I’m pretty sure the TTAG commentariat pointed this out when the BATFE rulemaking was originally published.

  2. Something about the wheels of justice grinding slowly…… one of the few issues that I had with Real President Trump was that he did not have the experience to know when he was being mislead. He also had a tendency to react without considering the whole picture. When he is re-elected again, he will be smarter about the politics.

    • So which would you prefer…POTUS DJT laying low so a knee jerk congress can run the entire show and it’s adios to Binary triggers and all the such or feeding the wolves a bumb stock contraption?

      The same politically inept Gun owning jerks who had a cow over bump stocks are the same history illiterates who see 1968 “Gun Control Act” and do zip, nada, nothing but roll over and play dead.

    • {Trump}

      “When he is re-elected again, he will be smarter about the politics.”

      He won’t be president again. If he is the candidate, he will lose.

      He will lose because they hate him more than anything else, and will turn out to vote for Biden.

      If he’s the candidate, they hand the election to Biden on a silver fucking platter… 🙁

      • most of those votes in the 2020 election were anti-Trump rather than pro-Biden…could it happen again?…quite possibly….

    • “When he is re-elected again, he will be smarter about the politics.”

      I voted for Trump twice….but Desantis is gonna bury Trump.
      The only question is will Trump play the spoiler after Desantis wins the primary?

      Since Trumps ego knows no bounds, he very well may.

      • My apologies to Dan. Sucks that the people on the bench don’t even know the laws. Shouldn’t be surprised by now, though.

      • that law…”the gangster gun bill”…had a lot of support at the time…all except for the handgun provision that was deleted…you had to remember gangsters were viewed as the terrorists of their of their time…..

  3. If SCOTUS agrees can Slidefire sue the piss out of everyone for unlawfully shutting down their business, lost revenue, laid off employees, lost wages and any expenses related to finding new employment?

    It’s pretty messed that some bureaucrats can destroy the livelihood, savings, health insurance and future stability of so many people with the stroke of a pen and not suffer any consequences. *covid cough*

    • Look up “qualified immunity” (a pernicious, evil and court-invented “doctrine” designed to save corrupt bureaucrats from the consequences of their malfeasance). Slidefire MIGHT have a case against the agency (but c.f., the history of suits against government – overall, the numbers ain’t good). Nope, all the REAL malefactors are going to skate, and the ATF and the courts certainly will, too.

      • If I recall anytime someone wants to sue the government the plaintiff has to get permission from the government. Not a lawyer, maybe one of our stalwarts can accurately answer.

        • Mr Crognale, No, sir, that is not true. There are hundreds of thousands of law suits against the government where no “permission” was asked for or granted. Judicial Watch does it all the time.

      • “Nope, all the REAL malefactors are going to skate…”
        This is why the swamp always wins. Sadly, I only see a possible fix in an economic collapse so bad that there isn’t enough money for government to pay all those useless employees. When an unreliable paycheck in dubious dollars means starvation and ruin only then will the massive government employment shrink.

        The nation voted us into this mess and eventually we won’t be able to keep this Republic. Done in by Democrats, Communists, and Progressives; in the end the utopiasts always win causing everyone to lose.

    • Shire-man,
      That has to happen, but we haven’t seen any accountability from the U.S. government-led election interference operations from 2016 or 2020. So what do you think?

      • the government will never support widespread ownership of automatic weapons..the only reason this was included was that mass shooting…plenty of other devices out there that could do the same thing…but up to and until they are misused they will be overlooked…unless congress passes a bill…then all bets are off….

    • suppressors and SBR’s were on their way to being excluded…then the administration changed…ATF is a political animal heavily dependent on funding…they will do as they’re told….

  4. Anyone that can read and comprehend the statutory language and see how the bump stocks (in the case) actually work can see that the bump stock is not a machine gun as defined in the statutory language.

    When the first bump stock came across Rick Vasquez’s desk at the ATF in 2010, he knew that his evaluation would take longer than usual. But after months of testing the bump stock and studying the law, the ATF determined the bump stock did not make a gun fully automatic (a machine gun), because the trigger of a rifle equipped with the bump stock device still had to be engaged every time the weapon fired.

    “We could not find a way to classify it as a machine gun,” Vasquez said. No matter how hard they tried to do their masters bidding (Obama who wanted to ban bump stocks, and AR-15’s by the way just like every democrat since 1994 – its why the ATF looked at bump stocks to begin with, ’cause Obama told them to do it), using the actual law and testing they could not justify that a bump stock made the semi-auto civilian grade AR-15 a machine gun so they did not get banned back then and Obama was not willing to alienate the pro-gun voters and the pro-gun republicans that were willing to work with the democrats on some of his stuff so he did not push it. But in reality Obama really wanted to ban them, and we know that Biden wants to ban them.

    And what, basically, the 5th circuits ruling says is, that the trigger of a rifle equipped with the bump stock device still had to be engaged every time the weapon fired because that’s what is actually happening so its still a semi-auto rifle and not a ‘machine gun’. To which the government basically replies “but but but, yes that’s what the language says but it looks like the person is firing a machine gun so its a machine gun”

    • Well, we blame the ATF and rightfully so because of the way they act but remember its the guy behind the curtain pulling the strings and they are going to do what ever that guy says because they are required to do what that guy says. But yeah, its kinda nice to see them get slapped around some because although they are required to carry out the bidding of their master they do it in blind obedience and like it too much and go way overboard with it.

        • For many years the ATF went along content with what it was doing but were largely neglected. They weren’t regarded as true law enforcement even though in naming convention they were, their budget was strictly controlled and they were always having to ask for funds, and for the most part they were actually kept out of gun control areas because the democrats knew there were a lot of people at the ATF which actually thought about what they were doing and had some integrity.

          The ATF was like a neglected child in many ways. Give a neglected child attention and build up their ego and self esteem and make them relevant and give them things and take care of them and remove the bad thing/influences from their lives and they will do what you want and try to please you. And that’s what Biden’s administration did, pay attention to this ‘neglected child ATF’ and take care of them and made them relevant and gave them things and built up their ego and self esteem. Biden pumped them up with money and ‘implied’ authority and telling them they were ‘law enforcement’ heroes ‘fighting the good fight’, started pouring in resources, then had them ‘side line’ the agents who did not fall in line. And we are left with an agency out of control running on automatic to please their master.

  5. Apologies in advance, but BATF (F-Troop) were limited in-advance by the internal mechanism of the firearm and the bump-stock was an external influence they had to ignore. Post Mandalay-Bay the external influence had to be considered and this had to be taken into effect.

    So F-Troop followed the political directive with an appropriate stance.

  6. I can do the same thing using a belt loop, should my belt be banned or is a belt a device that changes a AR15 into a machine gun. Yea it is that stupid. It’s like saying increasing the horsepower of an engine now makes a vehicle not street legal, pretty broad based interprtation.

  7. In Virginia, a 6 year-old boy FIRST GRADER in anger, shot a teacher.

    Not an accident, in ANGER :

    “The shooting occurred in a first-grade classroom at Richneck Elementary School in Newport News. Police say the shooting took place during an altercation and was not an accident. They have not yet determined how the child gained access to a firearm. Details about the firearm have been withheld.”

    “The wounded teacher — a woman in her 30s whose name wasn’t released — suffered life-threatening injuries. In critical condition from what Fox3 said was an abdominal gunshot, she was said to have seen “some improvement” by late afternoon. No students were injured.”

    https://www.zerohedge.com/political/6-year-old-shoots-teacher-virginia-elementary-school

    A six year-old isn’t a very big kid, where the hell did he keep it? IWB?

    • “One mother on scene spoke with us, demanding the government do something about the violence in our country.”

      People are so clueless. Karen there needs to first determine why a six year-old would argue with any elder, for any reason. Go back from there, and you’ll see the problem is this kid’s parents, and probably, the general degradation of our society.

      • Karens looking to establish root cause before spewing and shrieking their corrective action demands? 🤣

        Inability to define root causes is one of the major traits that enables us to identify ‘Karens’ in the wild.

    • The little brat needs to put over someone’s knee and have his butt spanked so hard he has to lie face down to sleep and eat standing up for the next month or two, or three.

      • “The little brat needs to put over someone’s knee and have his butt spanked so hard…”

        That’s far, far removed from just being a brat.

        That’s a defective kid, full stop.

        What do you do with someone like that? Juvie-jail until 18 years-old, then release an even angrier kid on the world?

        • The “spare the rod and spoil the child” idea from PrOgs since the 70s has only made children realize they can do what they want and there are no consequences.

          Time to rethink juvenile punishment.

        • a six year old hasn’t even reached the “age of reason”…some adult should pay for this….

  8. Why do we have to waste so much tax payer dollars to just to classify ducks are actually chickens only so we can spend even MORE $$$$ to then start repealing it?

    I hate the government.

    • In addition to ruling over us, they have to continue to justify their existence by creating problems and throwing money at it.

  9. The court needs to strike down the AFT as an extention of the legislative branch…Stop them from “creating law” out of thin air… The agency itself is unconstitutional…

  10. It seems to me that this precedent (if it truly is that) may apply towards the ATF’s yet to be released arm brace ban.

    that idea of the ATF not being able to create a crime, only the legislature. seems like this would stop ATF from creating ANY new “criminals” be redefining stuff.

  11. One more slice at the achilles of Chevron. Say it with me boys & girls. Precedent, precedent, and precedent. Part of the vacating is ruled under violation of The Administrative Procedure Act.

    \0/

  12. It is interesting to me that so many of the biggest court gun cases have involved the violation of the civil rights of black gun owners. And yes, everyone has had their gun civil rights violated.

    The government is really terrified of black people with glock switches. They seem to have so many of them.
    This is a victory for everyone. And sadly the skin color of the victim had a huge roll in this victory.

    But I will take the win. We all should.

    • items like Glock switches are turning up everywhere…and the ATF has no answers…do they even get involved when one turns up at a crime scene?….

      • As far as I know they don’t. I’m waiting but not holding my breath. The “gun community” as a whole is not supporting wide spread machine gun ownership. Low cost glock switches and bump stocks will become the next “Marijuana moral panic”.

        This time you won’t have nearly as many in the drug legalization crowd supporting the legalization of the bumpstock or glock switches. Because they have an irrational hatred of guns.

        These people and others like them are quite comfortable with only the police and military being allowed to possess and openly carry machine guns.

  13. So how do we get a case in front of the SC to get rid of the NFA and GCA? Exactly how do we prove any and all Federal laws restricting any and all types of arms is an infringement and unconstitutional?
    Yes, full auto weapons have very limited use in the civilian world. And not much use in the LEO world. However, they are used as military/militia weapons.
    On the militia aspect of the 2nd Amendment, would it not be of practical necessity to have weapons compatible with government stores, and use compatible ammunition/magazines? As well as be repairable from the same stores or spares.

    • “So how do we get a case in front of the SC to get rid of the NFA and GCA? ”

      Open your wallet and donate to the major gun rights orgs doing the heavy lifting by filing lawsuits, like the Gun Owners of America (GOA)…

    • think an AR-15 is as close as you’re going to get….technically you can still acquire an automatic weapon in many states…but it is beyond the means of most folks…thus the substitutes…

      • @frank speak

        “think an AR-15 is as close as you’re going to get….technically you can still acquire an automatic weapon in many states…but it is beyond the means of most folks…thus the substitutes…”

        Not legally unless …

        Its a gun that is registered by ATF – both parties involved in the purchase (seller and buyer) of a machine gun must have a C&R license (seller must be a Class 3 FFL dealer) – need NFA tax stamp which takes a lonnnnngggg time to get up to three years in some cases – must buy a gun that is papered and made before 1986 (which means it is certified and registered with proof of paperwork) – must be in a state that allows possession of such – must be a gun on the ATF’s curio or relic (C&R) list – be at least 21 years of age and able to legally register and obtain a weapon – sale and purchase must be in a state that allows sales and purchase (note: not all states that allow possession also allow sales in the state any longer).

        A civilian grade AR-15 is not a ‘substitute’ for a machine gun and never was.

        Why don’t you stop it with your slight wording to imply things that aren’t. Its a typical anti-gun trick, start introducing slight wording changes that imply things that aren’t. For example, you are taking about fully auto firearms and then throw in ‘thus the substitutes’ to draw a parallel similarity with the civilian grade AR-15 that doesn’t actually exist.

        A civilian grade AR-15 is no where close to a “automatic weapon”. It is a semi-auto only firearm and was created to be a semi-auto only firearm. Even though its possible to convert one, the difference between the manufacturer of an AR platform based design for military “automatic weapon” use and a civilian grade AR-15 for civilian is that a military weapon AR platform based design (and military automatic fire weapons) is made to withstand the forces of repeated/prolonged automatic weapons fire and the civilian grade AR-15 isn’t (even though it might work for a while that way). But here’s the thing, most all semi-auto firearms can be converted for partial or full auto fire and they are no where near a real full auto fire firearm because they were not intended to be that way.

        The semi-auto civilian grade AR-15 is not a “substitute” for an “automatic weapon”

        Basically;

        * The AR-15 rifle was originally intended to be a semi-auto civilian rifle, it was first developed in the 1950s for civilian use. Armalite tried to get the military interested in a military rifle based on the AR-15 design but was not successful. So facing financial difficulties Armalite sold the patent design to Colt in 1959. Four years later, the U.S. military selected Colt to manufacture a standard-issue military model of a rifle based on the AR-15 patent, this was dubbed the M-16.

        * Contrary to the anti-gun, the AR-15 was never really a military rifle. Versions based on the original patent for the civilian rifle were made for the military but the AR-15 never actually entered military service. There were some rifles the military got that were stamped AR-15 but basically that was due to two reasons – first, when Armalite sold the patent to Colt one of the provisions of the deal was that the AR-15 designation for the civilian rifle had to be carried forth on any rifle that Colt made based upon the civilian AR-15 rifle patent design, and, second, to facilitate quicker product to meet the military contract in the beginning Colt used the tooling it had gotten from Armalite for the lowers and that stamped AR-15 on the lower.

        * All the ‘AR-15’ stands for is ‘Armalite Rifle’ and the ’15’ stands for the 15th design in the Armalite design line – thus AR-15, and that 15th design was purely for a semi-auto rifle for the civilian market. Rifles after that for the military were just based on the patent design and were not the actual civilian rifle design placed in military service and are not the true AR-15 but rather creations based on the design.

        All commercially made civilian grade AR-15 platform rifles today and since the 1960’s are all based on the original Armalite AR-15 semi-auto civilian rifle. Its only chance and coincidence that the same design based platform rifle ended up being sold to the military. And from that came the application of ‘mil-spec’ in terms of measurements and materials and cosmetics to the commercially made civilian grade AR-15 platform rifles.

        Are most parts interchangeable? Yes they are, but that’s not because it was originally intended to be like that. That developed due to insistence of the U.S. government – the government demands certain specifications (e.g. ‘mil-spec’) Colt obliged (with what became the famed Colt TDP) and that set the manufacturing standard for parts and the industry did what it does, standardized and today most parts are interchangeable and the civilian grade AR-15 is advertised as ‘mil-spec’.

        In other words, although the commercially made civilian grade AR-15 platform rifles today are similar in appearance and in terms of ‘mil spec’ for measurements and materials and cosmetics – they are still not near military firearm in terms of ‘automatic’ fire nor is it a ‘substitute’ for a real automatic fire firearm nor is it an ‘assault rifle’, nor is it a ‘weapon of war’ (unless, like any firearm can be used, you use it for a ‘weapon of war’)

        • In a sort of coincidental or indirect way, the commercially made civilian grade semi-auto AR-15 platform today, in terms of ‘mil spec’ for measurements and materials and cosmetics – was created just for the civilian market by the U.S. Government. And in a way the U.S. Government actually blessed the existence of the commercially made civilian grade semi-auto AR-15 platform we have today by encouraging the use of ‘mil-spec’ as a standardization for industry to be applied to civilian market use when they blessed Colt’s use of their TDP for their commercial civilian firearms.

          Most civilian grade semi-auto firearms, rifle or shotgun or pistol, have past origins in military use only designs or military only applications or placed in service for military use or developed for the military. The commercially made civilian grade semi-auto AR-15 platform is the only semi-auto rifle in ‘common use’ today with ‘mil-spec’ ‘design’ that does not have a past origin in military application as its origin design was intended to be civilian only.

        • The original Armalite AR-15 design was a civilian only design that was derived somewhat from the Armalite AR-10 rifle.

          Stoner, in response to military request attempted to create a new military assault rifle and this was designated the ArmaLite Rifle model 10 (AR-10).

          The first AR-10 prototype, chambered for the 7.62×5 1mm NATO cartridge carried in a 20-round magazine, was completed in 1955. In December 1955, the first AR10 was presented to the Infantry Board and School at Fort Benning, Georgia, by Gene Stoner and George Sullivan (an ArmaLite executive). But by the time it was demonstrated the military had already adopted the M14. This shot Armalite out of the water for a military firearm. But, the AR-15 idea as a civilian only rifle was already in design. In 1957 General Wyman, impressed by the AR10, offered Armalite financial support for future development of ArmaLite rifles in exchange for government proprietary rights to the final product. Armalite was starved for money and jumped at the chance so quickly took their AR-15 civilian only rifle design and scaled it down to fire the popular .222 (5.56 mm) Remington cartridge to satisfy the military requirements for rifle that was lighter and accurate to counter the heavier M14.

          The anti-gun version is basically (with some variations) as wikipedia put its, that “The ArmaLite AR-15 was designed to be a lightweight rifle and to fire a new high-velocity, lightweight, small-caliber cartridge to allow infantrymen to carry more ammunition” .

          This is not correct and is false as it implies the rifle was originally designed to be a military only rifle and this implication is the origin of the anti-gun claims that the commercially made civilian grade semi-auto AR-15 platform today was created to be a ‘military weapon’ or ‘assault rifle’ or ‘weapon of war’.

          Anti-gun changes this a little by omission/wording to make it look like the AR-15 was originally a military only design. This is false. Its been a dedicated attempt for years to re-write the history of this rifle to claim its origin was as a military only assault rifle and that is simply not true. An example of this omission/wording history re-write appears at wikipedia (I quoted above).

          The original Armalite AR-15 design was a semi-auto civilian only design, not a military ‘assault rifle’ design.

        • Armalite designed the AR-15 as a smaller version of the AR-10. It was licensed to Colt, who made the Model 01 (also called 601) in 1959 with dual Colt and Armalite logos. It was select-fire, .223 Remington, 1-14 pencil barrel with duckbill flash hider, slab site, no forward assist, and 20 round waffle magazine. It was not made for a military program. Curtis LeMay saw it and ordered 8500 for the Air Force. Only about 14500 were made.
          A modified version (model 603) was submitted as the XM16E1. This led to the adoption of the M16 and definition of the 5.56×45 cartridge. These are NFA items, and require registration, months of wait, and tens of thousands of dollars to buy.

          In 1963, Colt designed the model R6000 semiauto AR-15 SP1. This is what is commonly called an AR-15 and was never intended for or issued by militaries. Colt didn’t machine out the autosear pocket, cut away the portion of the BCG that contacts the autosear in the M16, and made a different trigger, hammer, sear, and safety/selector. Millions of copies have been made, with other manufacturers using different names since “AR-15” is owned by Colt.

          Adding to the confusion, Colt did release some other machine guns with the AR-15 name (like 614) for the law enforcement and export markets.

    • it would be fair that the government destroyed private property it illegally and unconstitutionally confiscated?

      Do you live on planet dacian?

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