Washington, D.C. – Congress has not prohibited bump stocks, but the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made them illegal with a Final Rule issued without statutory authority. In a noteworthy development, ATF’s latest court filing admits that it lacked rulemaking authority under the Gun Control Act and National Firearms Act to issue a legislative rule. ATF thus now agrees with NCLA that the district court below was wrong on this point of law.
Today, the New Civil Liberties Alliance filed a brief on behalf of client Clark Aposhian, asking the U.S. Court of Appeals for the Tenth Circuit to reject ATF’s remaining defenses of the Final Rule, restore Mr. Aposhian’s constitutional rights, and grant him a preliminary injunction to possess his lawfully acquired property. Specifically, NCLA argues that ATF’s interpretation is not the best reading of the statute and that the Court of Appeals cannot properly invoke the Chevron judicial deference doctrine to defer to ATF’s interpretation.
This case is not about gun control. Rather, Mr. Aposhian’s appeal raises key issues about how an agency may create such a ban—that is, whether agency regulations may contradict a statute passed by Congress. The appeal also challenges the notion that a mere interpretive rule can bind third parties, such as owners of bump stocks.
“The bump stock rule made it a new federal crime to own a bump stock, even one purchased with ATF’s prior permission. ATF knows it didn’t have the authority to enact such a law. Instead of defending the rule, ATF now pretends the ban is just a recommendation for the public. NCLA is confident the court will see through ATF’s games and strike down this invalid rule.” —Caleb Kruckenberg, Litigation Counsel
“ATF is caught between a rock and a hard place. The agency lacks legal authority to issue a so-called legislative rule, but a mere interpretive rule is not legally allowed to bind any third parties outside the government. By ordering half a million bump stock owners to surrender their devices—or face prosecution—ATF has acted in a completely unconstitutional fashion. It is high time for the federal courts to put a stop to this regulatory nonsense.”
—Harriet Hageman, Senior Litigation Counsel
Congress could have passed bipartisan legislation making bump stocks illegal. Instead, ATF has tried to ban them via administrative action in the Bump Stock Final Rule. This Court has a constitutional obligation to strike down ATF’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.
Update: Mr. Aposhian was forced to surrender his bump stock temporarily on May 6, 2019, while his appeal is being 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 that court.
For a full case summary click here.
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 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.