The National Shooting Sports Foundation (NSSF) filed an amicus brief with the U.S. Supreme Court in support of the challenge by Michael Cargill in Garland v. Cargill. Cargill challenges that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped its authority when officials there published a final rule that criminalized the possession of bump stocks by classifying them as machine guns.
“No matter what their intent is, ATF does not have the authority to supersede Congress by writing their own criminal law,” says Lawrence G. Keane, NSSF senior vice president & general counsel. “Drafting criminal law through the rule-making process has become a dangerous habit of the executive branch that threatens the separation of powers and threatens to relegate the rights guaranteed by the U.S. Constitution as secondary to the whims of bureaucratic authorities. This dangerous precedent must be challenged or we risk surrendering our rights to the administrative state.”
NSSF’s amicus brief argues that the ATF’s bump stock rule exemplifies a troubling trend of ATF regulatory overreach. That overreach has resulted in destabilizing consequences for both the firearm industry and the people whose rights it enables. The ATF initially told the public of bump stocks, “that they were not machine guns” according to the definition approved by Congress and maintained this position for more than a decade, including in interpretation letters to the public. That meant possession of the bump stocks were legal and didn’t fall into the restrictions under the 1934 National Firearms Act that governs possession of automatic firearms.
The ATF’s position on bump stocks changed following the 2017 tragedy in Las Vegas when an individual criminally misused firearms, equipped with bump stocks, to attack fans gathered for a country music festival on the Las Vegas strip. The attacker fired the shots from a broken out window in the Mandalay Bay casino and hotel.
President Donald Trump vowed to eliminate bump stocks regardless of Congress. The ATF carried out this order with the Final Rule that bypassed Congress and its sole authority to write criminal law by reclassifying bump stocks as machine guns and subjecting owners to criminal penalties.
Cargill has challenged the ATF’s authority to unilaterally change criminal law through the rule-making process and was unsuccessful at a U.S. District Court. Apanel for the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling. However, an en banc rehearing, in which all of the judges on the panel sit in and hear a case, by the full U.S. Court of Appeals for the Fifth Circuit reversed the panel’s decision (13-2). The Department of Justice (DOJ) petitioned the U.S. Supreme Court, which has granted a review of the case.
