Washington, D.C. — Whom does the Constitution allow to change the law when tragedy strikes? Today the New Civil Liberties Alliance filed a brief on behalf of NCLA client Clark Aposhian, asking the U.S. Court of Appeals for the Tenth Circuit to determine that it is unlawful for a prosecutorial entity, like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to rewrite the law in Congress’ place. This case is not about gun control. Rather, the lawsuit raises key issues about whether agency regulations may contradict a statute passed by Congress, and whether an administrative agency can retroactively punish a product’s lawful purchasers, who may not hear about the ban before it turns them into felons when Congress has never done so.

Rightly or wrongly, Congress has not yet prohibited bump stocks. But when a deranged gunman opened fire on a crowd in Las Vegas, Nevada on October 1, 2017, using weapons equipped with scopes, 100-round magazines and bump stocks, a legislative response certainly could have been considered. What transpired instead was a Bump Stock Final Rule banning the devices—an administrative shortcut by ATF that violates basic constitutional principles concerning who makes the law. Even if ATF’s goal is laudable, this Court has a constitutional obligation of its own to strike down the administrative agency’s attempted legislative rewrite. Otherwise, the Executive Branch will usurp Congress’ legislative function in other areas, and the Constitution’s careful limits on how laws are made will be undone.

“The ATF has attempted to rewrite the law and declared that as many as 500,000 Americans are now federal felons even though they lawfully purchased bump stocks with the ATF’s prior approval. The Constitution doesn’t allow prosecutors to change the criminal laws to suit their sense of what the law should say. The bump stock ban threatens to set a dangerous precedent that prosecutors, not lawmakers, have the final say about what makes something a crime.”—Caleb Kruckenberg, Litigation Counsel

Mr. Aposhian was forced to surrender his bump stock on May 6, 2019, while his appeal is heard. NCLA also filed a separate lawsuit with the U.S. District Court for the Western District of Texas on behalf of Michael Cargill, a resident of Austin, Texas who turned in his bump stock to the local ATF office while his case is pending before the court.

For a full case summary click here.


NCLA is a nonprofit civil rights organization founded by 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 unlawful 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.