atf agents
(AP Photo/Rogelio V. Solis)
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An appeals court ruling that struck down the Trump-era rule banning bump stocks could have a much wider-reaching impact than just the plastic accessory.

The U.S. Court of Appeals for the Fifth Circuit overwhelmingly ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped its authority when it published a final rule that reclassified bump stocks as “machineguns.” The Trump-era ban was in reaction to the heinous crimes by a depraved murderer in Las Vegas in 2017. The murderer used bump stocks in the commission of his crimes.

“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 opinion states.

That, however, is not the most important part of the decision. The teeth of the ruling has more to do with process – something most Americans learned in their fifth grade civics lessons.

Separation of Powers

Simply put, the federal government operates on a principle of separation of powers. Congress — the legislative branch — writes the laws. The White House, seat of the executive branch, enforces the laws and the judicial branch, via the courts, decides if laws are constitutional.

“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,” the opinion states.

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.

Put simply, Congress established the definition of “machineguns” in the 1934 National Firearms Act and the 1968 Gun Control Act. Only Congress has the authority to modify that definition.

Congress alone — the direct representatives of We the People — has the authority to draft laws and decide what is and isn’t legal. The executive branch, in this case the ATF as an agent of the executive branch, is charged with executing the law. The courts are charged with arbitrating what is law under the Constitution and ensuring that there is a separation of powers.

The Fifth Circuit found that in this case, the executive branch got it wrong. The ATF cannot redefine “machineguns” on its own. That authority rests with Congress.

Donald Trump
(AP Photo/Alex Brandon)

The ATF can only enforce what Congress agrees upon as legislation and the President of the United States signs into law. An agency within the executive branch doesn’t have the constitutional authority to draft rules that act with the force of law on their own. That’s executive fiat and it’s unconstitutional.

The Effect

From here, it gets complicated. The ATF agreed for more than a decade that bump stocks were not “machineguns” but a legal accessory. That changed, albeit with intense public pressure and threats of legislation from Congress. The Fifth Circuit case was the most recent challenge, but it wasn’t the only one to challenge the legality of the bump stock rule.

Previous challenges upheld the ATF’s bump stock ban, including decisions by the U.S. Courts of Appeal for the Sixth Circuit, Tenth Circuit and District of Columbia Circuit. The split among the circuit courts on this question may lead to the U.S. Supreme Court stepping in to decide the issue.

The Fifth Circuit’s decision, however, may have much more far-reaching implications to what is known as the “administrative state” where government agencies — not Congress — create laws through regulation and rulemaking.

This ruling could be a harbinger for two more rules finalized by the ATF. The ATF published the Frame & Receiver Final Rule that defined privately made firearms (PMFs) that are sold in a complete kit, or those that are “readily convertible” (think: 80% lowers), as firearms and regulates them as such.

That was a departure from previous definitions, just like the decision by the ATF to depart from previous definitions and regulate an accessory like the bump stock as a “machinegun.” In essence, the ATF expanded the definition of what a firearm is, which the Fifth Circuit said is beyond its authority.

ATF agents
(AP Photo/David Goldman)

The ATF is also expected to publish a final rule based on the Stabilizing Brace Proposed Rule. That could be forthcoming any day. The proposed rule included a four-part test to determine whether a firearm equipped with a pistol brace is defined as a pistol or short-barreled rifle.

Short-barreled rifles (SBRs) are regulated under the 1934 National Firearms Act like “machineguns” and individuals possessing one must pass additional (and redundant) background checks, submit photos, fingerprints, notify their chief law enforcement officer and pay a $200 tax to obtain a stamp from the ATF.

Individuals owning them must also notify the ATF any time that short-barrel rifle is moved from their residence, including submission of travel plans, and when the SBR will be returned to the residence to which it’s listed.

sb tactical pistol brace
Courtesy SB Tactical

As with bump stocks, ATF had long ruled that stabilizing pistol braces when affixed to an AR-style pistol did not convert the pistol into a short-barreled rifle or shotgun. The parallels to the bump stock rule are self-evident.

Has ATF again impermissibly redefined firearm definitions and exceeded its authority? The courts will certainly be asked to decide that very important question.

The Fifth Circuit’s ruling is much more than a question over a firearm accessory. It gets to the heart of the matter: can the ATF – working on behalf of a President – unilaterally rewrite he law on its own? The court says it can’t. That is the responsibility, and the role, of Congress.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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45 COMMENTS

  1. I never particularly cared about bump stocks because they’re a way around the machine gun ban. What we need is the courts to rule the NFA to be unconstitutional. Because it is.

    • Inventive and industrious human beings will always find a way legally around a law. The question is whether or not the government will simply write another law to outlaw what you’re doing that is actually legal.

      The legislative branch is simply playing wackamole. Every time something pops up, they have a knee jerk reaction to write a law against it.

      And then those same people will complain, that there are too many people, in American’s jails and prisons.

      • The Fifth Circuit found that in this case, the executive branch got it wrong. The ATF cannot redefine “machineguns” on its own. That authority rests with Congress.

        Shouldn’t even rest with congress. The requirements to pass the 2nd amendment, should be the requirements to pass a redefining of the word “machinegun.”

        • MTG was correct. The AFT should be abolished. I don’t know what will happen with congress. But it was a good thing that there was no “red wave”. The 20 members of the freedom caucus have great power now.
          We will see what they can accomplish.

    • “What we need is the courts to rule the NFA to be unconstitutional. Because it is.”

      Don’t get your hopes up. We *might* get the tax repealed, but likely not the hoops-jumping crapola.

      Saint Scalia himself in the watershed ‘Heller’ ruling noted that there were exceptionally dangerous weapons that could be banned or regulated.

      Calm down. We have a solid shot with ‘Bruen’ getting the 200 dollar ‘poll tax’ disposed of….

    • The only thing “way around the machine gun ban” means is “shooting fast in a legal fashion”.

      Bump stocks are a way to shoot fast. But then, so are binary triggers, gatling guns, gat cranks and single stage triggers with crisp pulls. Hell, even a semi auto is a way to shoot fast compared to a bolt action.

      One of my favorite things to do is mag dump with my Ruger 10/22. It’s satisfying. Between the light trigger, low recoil, and my own trigger discipline, I can shoot pretty darn fast. I think Jerry Miculek can outrun actual machine guns with his semi autos.

      Should I become a felon for that? Afterall, I’m just “tRyInG tO gET aROunD tHe mAChiNE gUn BaN” by shooting quickly.

      I understand that you don’t like the NFA. I think it’s unconstitutional garbage myself. But the ATF changing the definition of a machine gun to ban more things is much worse than Congress passing an unconstitutional law. Metaphorically, yesterday they went after a range toy, today they’re coming after frames, receivers and braces, who knows what they’ll come after tomorrow now that you’ve said you don’t care when they violate your rights.

  2. The following occurs to me:

    1. bump-stocks are not important to either a well-regulated militia nor to the right to the means of an effective self-defense.
    2. whether a bump-stock is a machinegun is not an important issue.
    3. whether Congress has the power to regulate machineguns differently from other arms in more common use is not an important issue.
    4. no one really cares deeply about bump-stocks.

    What is important here is the principle of separation of powers and the doctrine about delegation by Congress to the Executive. That is fundamental to our Constitutional system.

    I don’t think SCOTUS will duck this one. It’s not about arms. It’s not about the 2A. It’s about the system.

    • You are right, it is about the ‘system’ and not 2A.

      The Constitution is kinda important, so we can’t let the government get away with wiping their butts with it and doing as they please.

      I wonder if DOJ right now is going “We can’t let the court get away with wiping their butt with the ATF rule and doing as they please. Lets appeal to SCOTUS.”

      • when ATF…under direction..made that decision I have to wonder if they expected it to stand judicial review…it was just an attempt to buy time until congress decided whether or not to pass a law banning them…something that could wind up being far more comprehensive…

    • Congress is more than happy to delegate all the power they can to the executive branch. If they like what is done then they take credit for it at re-election time and if they don’t then they campaign on stopping it…. It’s a win/win for congress all without having a pesky record on how they voted for it.

      It’s a sure fire way to boil the frog with out being seen near the stove.

      • You speak of the Swamp/”administrative state” = demtards/RINOs. That is NOT 100% of Congress (note the fight last week over appointing the RINO POS Speaker of the House).

    • Anti gun restrictions aren’t about safety. They are about control.

      The way government handled Covid had nothing to do with health or medical issues.
      That too was about control.

      We have been watching People all over the place doing things they have no authority to do without being held to account.

    • “It’s about the system.”

      Damn straight. It’s about time to put the brakes on a runaway regulatory apparatus sticking its nose where it doesn’t belong… 🙁

    • The reason we should care about this is because in this instance the ATF “ruled” many times over many years that these were legal.

      Then changed its mind and issued an edict that all those that were produced and purchased based on its previous guidance were now illegal and needed to be destroyed without any compensation.

      Think about that. It is quite literally tyrannical.

      It needs to be stopped. It’s got nothing to do with guns really. It’s about a fair and just regulatory system that serves the citizens.

      If the ATF had ruled it to be a MG initially, then fine. No harm, no foul.

      Even if they had changed their mind and grandfathered those already owned, not great but not tyrannical.

      If they had changed their mind and not grandfathered those in circulation but had offered to pay in the area of $300 for those to be confiscated, borderline tyrannical, but at least in line with case law around the takings clause of the Constitution.

      In this case it’s full on unconstitutional (depriving people of property without due process of law) and full on tyrannical.

      For what it’s worth, states that have banned bump stocks haven’t run into the same constitutional issue. When MA banned bump stocks, it wasn’t a taking because MA residents could still sell them outside MA very easily. But when the federal Government bans them, there is nowhere to go to get just compensation.

  3. By the time this ball of ATF all gets wrecked in court, that special AR pistol – built from an 80% receiver, equipped with a pistol brace, and topped off with a bump stock – might come out from the back of your safe to play in the sunshine once again.

    Bruen is acting as a wrecking ball. 2023 is gonna be a heckuva year.

    Next up: Newsom, Bonta, and the Sakramento Keystone Kops see their plans foiled as California’s gun control comes down like a Jenga tower. The citizens run into the streets and cheer for joy.

      • Gentleman’s bet?

        It could be either, the way things are going, but we have Judge “Saint” Benitez walking out from the batting cage and toward the plate, so I’m going to lean toward CA. Once these laws start getting removed with prejudice and pile up on one another as precedent, the momentum is going to increase, methinks.

    • Well Larry Keane we don’t know fer sure if the Vegas shooter used a bump stock. Rabbit holed in a new york minute. Since they were more or less designed for handicapped folks it’s just another BS regulation. Like what’s coming to ILLANNOY quite soon. Separation of power’s?!? Not in the uni-party…

      • According to the FBI report, he had illegally modified those firearms into a machine guns.. Ie changed the internals of the weapons!!!!

        They still to this day refuse to turn the weapons over to BATF for inspection!!!

        I believe the bump stocks were cover for his conversions to full auto!!!

        If you are out shooting and all of sudden LEO show up, show them the bump stock and they wouldn’t bother to check the internals!!! Same when they inspect them, if and when he was stopped while in vehicles!!!

    • The next ones to fall are one; the idiot Gov. Inslee and two; the Evil Architect of Gun Elimination in Washington State: Attorney General Bob Ferguson. May they burn in the Pit.

    • “Bruen is acting as a wrecking ball. 2023 is gonna be a heckuva year.”

      I’m a little worried about the unforeseen consequences when they finally realize what is happening, and us on the receiving end of a very ugly unexpected surprise… 🙁

    • Bruen is bigger than most of us could have ever dreamed.

      I expected a victory, but with a narrowly tailored decision that didn’t impact much other than the need for states to offer a way to get a license to carry.

      But it’s so so much more. It has changed the entire context under what all gun control laws must be judged for Constitutionality. The two part test is gone. Consideration of the “public good” when considering the legality of gun control laws is gone.

      It’s bigger than any of us could have hoped for.

  4. Some states don’t allow SBR’s, so forget about even registering them should the need arise. Just convert them to a rifle until the courts figure it out, then convert them back.

    • “Some states don’t allow SBR’s, so forget about even registering them should the need arise.”

      Correct, and efforts are now underway to correct that, thanks to the ‘Bruen’ decision.

      The slave states have a right to all the NFA toys enjoyed in the free states.

      Please consider donating to gun rights orgs working on those lawsuits… 🙂

    • If you actually look at the ATF worksheet, you will see that there are a number of ways to make a non-conforming braced pistol into something conforming.

      You may need to buy a new brace, but it can be done.

  5. “The proposed rule included a four-part test to determine whether a firearm equipped with a pistol brace is defined as a pistol or short-barreled rifle.”
    I have a one part test. Was this firearm legally purchased? If yes then go pound sand you @#$%%$#@.

    • “The proposed rule included a four-part test to determine whether a firearm equipped with a pistol brace is defined as a pistol or short-barreled rifle.”

      Test Part 1: Read executive order from Joe Biden.

      Test Part 2: Is it easy to drink morning coffee with firearm in other hand?

      Test Part 3: Did Jim take the last donut with sprinkles?

      Test Part 4: Does coin flip show Joe Biden’s head no matter which way the coin lands?

  6. This was an important decision and it hearkens back to the need to kill Chevron Deference for good.

    The NFA, GCA, Hughes Amendment etc. are bad enough as-is but the fact the ATF goes and does what they please to who they please even at times in violation of federal law makes it worse.

    Remember the EP Armory Raid and how there were zero consequences for it.

  7. Now if we can just get a case going to challenge laws against so called ‘ghost guns’. As usual the 9th circuit court is trying to preserve those laws by saying that the 2A doesn’t say anything about making your own guns.

    • “As usual the 9th circuit court is trying to preserve those laws by saying that the 2A doesn’t say anything about making your own guns.”

      Too bad, 9th ‘circus’, home building guns was all the vogue when this nation was founded, with *zero* paperwork, ‘background checks’, or other bullshit, and we should settle for no less than that… 🙁

    • The 2A does for a fact say something about making your own guns. It says ‘arms’, your self manufactured guns are ‘arms’ in the context that even the 9th circus has previously ruled and even acknowledges by their taking cases on them. If they aren’t ‘arms’ then all the 2A decisions by them in relation to the 2A and ‘ghost guns’ or self made firearms are moot and invalid so if they are not arms why are they even taking up a 2A case on them because surely the plain language of the 2A they and everyone can read (except maybe dacian and Miner49er and Albert Hall) says ‘arms’ ?

  8. Unless I am mistaken, there is no proof whatsoever that Stephen Paddock had or used bump stocks in the Mandalay Bay Massacre. All we have are bald allegations from the FBI. They have never allowed any of the evidence ti be examined independently.

    Given the track record of the FBI and DOJ for lying to the American people and political corruption, there is no reason to believe their claims about anything that happened there that we can’t see on the video.

    That said, it is good that some federal judges still remember the fundamentals of jurisprudence and the rules of statutory construction. The BATFE has gone as far as any federal agency to unlawfully expand regulations. About time it was brought to a halt.

  9. I don’t see why Mr Keene didn’t mention it, but this decision is the same as West Virginia vs EPA that has restarted four coal fired power plants. Perhaps he believes in the myth of human activity influencing the climate.

    • human activity does influence the climate. When my human activity is something my wife can get upset over the climate changes real fast around my house.

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