Washington, D.C. — The New Civil Liberties Alliance (NCLA) is asking the U.S. Court of Appeals for the Tenth Circuit to halt enforcement of the federal ban on bump stocks before it becomes effective March 26th because there is no statutory authority for the ban. NCLA expects a ruling on its emergency stay motion within 48 hours.

Bump stocks are controversial, as they allow semi-automatic weapons to shoot more rapidly. However, this litigation is not about whether bump stocks should be outlawed but concerns whether a federal agency can outlaw them without Congress. NCLA’s Emergency Motion for Injunction Pending Appeal explains that the Bureau of Alcohol, Tobacco, Firearms and Explosives (better known as ATF) cannot declare bump stocks to be machineguns retroactively—and without a valid statutory basis.

NCLA contends that only Congress, not an administrative agency like ATF, can write criminal laws such as the Final Rule. The lawsuit also raises key issues about the scope of administrative power. Dozens of previous federal court decisions have held that this statute is not ambiguous, which deprives the Department of Justice and ATF of the ability to rewrite it. Furthermore, the longstanding Rule of Lenity commands that any ambiguity in the definition of “machinegun” be construed in favor of a potential criminal defendant.

By making the ban retroactive, ATF also creates an unfair surprise for over 500,000 innocent citizens who purchased these devices legally and may not hear about the ban before it turns them into felons subject to 10-year prison sentences. Congress historically has shied away from retroactive bans and crafted shorter prison sentences for owning banned accessories than for owning banned weapons.

“The Congress that wrote the National Firearms Act in 1934 would not have considered bump stocks to be machine guns. The text of this statute is very clear. ATF had no power to issue the Final Rule because there was no ambiguity for it to resolve. It is our hope that the Tenth Circuit will agree.” —Caleb Kruckenberg, NCLA Litigation Counsel

“This case is much bigger than whether bump stocks are banned. If agencies like the ATF can rewrite statutes by administrative fiat every time the political tide changes, then we no longer have rule of law in this country. We have rule by agency.” —Steve Simpson, NCLA Senior Litigation Counsel

Last week Judge Jill N. Parrish of the U.S. District Court for the District of Utah, denied preliminary injunctive relief to NCLA’s client, plaintiff Clark Aposhian, in his lawsuit against the ATF challenging the Final Rule.


About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org