Michael Cargill v. Garland, et al.

CASE SUMMARY

May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals overnight?

Under our Constitution, the answers to those questions should be an obvious no. Congress—and Congress, alone—has the power to make law. The executive branch, which includes federal agencies and departments, possesses only the power to enforce it. But if the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) gets its way, it will possess the power to make law and enforce it.

Join the new civil liberties movement. Protect Americans from the Administrative State!

CASE STATUS:
Active

CASE START DATE:
March 25, 2019

DECIDING COURT:
U.S. Court of Appeals for the Fifth Circuit

ORIGINAL COURT:
U.S. District Court for the Western District of Texas

A federal statute outlaws machine guns but it does not outlaw bump stock devices that attach to a rifle and allow it to fire many shots in succession. For years, the ATF correctly concluded that bump stocks are not illegal machine guns under federal law.

All that changed in 2019, when the ATF switched course and decided that bump stocks are now “machine guns” banned under federal law. That switch threatened to turn more than 500,000 people into criminals overnight and may face a 10-year prison sentence for owning something the government had told them before was legal to possess when they bought it.

Michael Cargill is one of those people. A gun shop owner, Army veteran and firearms instructor in Austin, Texas, Cargill bought two bump stocks in April 2018. Like hundreds of thousands of other Americans, Mr. Cargill bought his bump stocks in reliance on the ATF’s conclusion that the devices were entirely legal to own and use. In fact, a letter attached to the device said so.

NCLA represents Mr. Cargill in a constitutional lawsuit that challenges the ATF’s effort to rewrite a federal statute. The principle NCLA and Mr. Cargill seek to vindicate is simple: If bump stocks are to be banned, Congress must make that decision and Congress must exercise the authority to ban them. If an agency such as the ATF can rewrite a statute as it pleases, then any agency can rewrite any statute as it pleases. Whatever one thinks of bump stocks, our laws must comply with the Constitution, or neither the Constitution nor the rule of law has any meaning.

CASE DOCUMENTS

August 1, 2022 | Brief for Amici Curiae Firearms Policy Coalition and FPC Action Foundation Supporting Appellant and Reversal
August 1, 2022 | En Banc Brief of Amici Curiae Firearms Regulatory Accountability Coalition, Inc., Nst Global, LLC (D/B/a SB Tactical) And B&T USA, LLC in Support of Plaintiff-Appellant in Support of Reversal
August 1, 2022 | Brief of Amicus Curiae John Cutonilli in Support of Plaintiffs-Appellants for Reversal
August 1, 2022 | Supplemental Brief Amicus Curiae of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Heller Foundation, Tennessee Firearms Association, Virginia Citizens Supplemental Brief Amicus Curiae of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Heller Foundation, Tennessee Firearms Association, Virginia Citizens Defense League, Grass Roots North Carolina, Rights Watch International, America’s Future, and Conservative Legal Defense and Education Fund in Support of Plaintiff-Appellant on Rehearing en Banc
August 1, 2022 | Brief of Amicus Curiae Liberty Justice Center in Support of Plaintiff-Appellant on Rehearing en Banc
August 1, 2022 | Supplemental Brief of Amicus Curiae Pacific Legal Foundation in Support of Plaintiff-Appellant on Rehearing en Banc
July 29, 2022 | Supplemental Brief of the Cato Institute as Amicus Curiae in Support of Plaintiff-Appellant on Rehearing en Banc
July 25, 2022 | Appellant’s Supplemental Brief in the United States Court of Appeals for the Fifth Circuit
February 28, 2022 | Response to Petition for Rehearing en Banc
February 4, 2022 | National Rifle Association of America’s Amicus Curiae Brief in Support of Plaintiff-Appellant’s Petition for en Banc Review
February 4, 2022 | Brief Amicus Curiae of Gun Owners of America, INC., Gun Owners Foundation, Gun Owners of California, Tennessee Firearms Association, Virginia Citizens Defense League, Arizona Citizens Defense League, Grass Roots North Carolina, Rights Watch International, Conservative Legal Defense and Education Fund, and the Heller Foundation in Support of Plaintiff-Appellant and Rehearing en Banc
February 4, 2022 | Amicus Curiae Brief of Pacific Legal Foundation in Support of Rehearing en Banc
January 28, 2022 | Appellant’s Petition for Rehearing en Banc
December 14, 2021 | Decision of the U.S. Court of Appeals for the Fifth Circuit
October 6, 2021 | Oral Argument
May 27, 2021 | Reply Brief for Appellant in the U.S. Court of Appeals for the Fifth Circuit
May 7, 2021 | Brief for Appellees
March 15, 2021 | Brief of Amici Curiae Firearms Policy Coalition and the Center to Keep and Bear Arms in Support of Appellant and Reversal
March 15, 2021 | Amicus Curiae Brief of Pacific Legal Foundation in Support of Neither Party
March 15, 2021 | Brief for Amicus Curiae Due Process Institute in Support of Appellant and Urging Reversal
March 15, 2021 | Brief of the Cato Institute as Amicus Curiae in Support of Plaintiff-Appellant
March 8, 2021 | Brief for Appellant in the United States Court of Appeals for the Fifth Circuit
November 23, 2020 | Order of the United States District Court for the Western District of Texas
October 1, 2020 | Plaintiff’s Closing Argument in the United States District Court for the Western District of Texas
April 3, 2020 | Plaintiff’s Proposed Findings of Fact and Conclusions of Law
August 14, 2019 | Order Setting Initial Pretrial Conference

IT IS HEREBY ORDERED that the above entitled and numbered case has been set for an
INITIAL PRETRIAL CONFERENCE…

Click here to read the full document

March 25, 2019 | Complaint

The U.S. Constitution vests “All legislative Powers” in the Congress and directs that the President “shall take Care that the Laws be faithfully executed… .” U.S. Const. art I, §1,andart. II, §3 (emphasis added). It is therefore a basic tenetof our government that the Executive Branch may not, on its own, rewrite the lawas itsees fit. Case 1:19-cv-00349 Document 1 Filed 03/25/19 Page 1 of 38

2The Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives haveviolated this basic principleby issuing the “Bump-Stock-Type Devices” Final Rule. Contrary to statutory language enacted by Congress(and signed by the President), and circumventing congressional efforts to revise that language, this rule is scheduled tomake hundreds of thousands ofotherwiselaw-abiding Americans into felons in defiance of constitutional restraints on executive power. Whatever the merits of such a policy, the Final Rule violates the fundamental constitutional order and thus cannot be tolerated.

Click to read the full Motion for Certification

PRESS RELEASES

August 8, 2022 | Gun Owners of America Among Nineteen Amici Curiae Supporting Lawsuit Against Bump Stock Ban

Washington, DC (August 8, 2022) – Nineteen prominent civil liberties organizations, policy coalitions, and individual gun owners have filed seven amicus briefs in Michael Cargill v. Merrick B. Garland, et al. in support of the New Civil Liberties Alliance’s position. The case, which will be argued before the en banc U.S. Court of Appeals for the Fifth Circuit on September 13th, urges the full bench to invalidate the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Bump Stock Final Rule, in which the agency declared that non-mechanical bump stocks are “machineguns” within the meaning of the relevant statute. As a result of the Final Rule, plaintiff Michael Cargill, along with hundreds of thousands of other bump-stock owners, became a felon overnight and was ordered to surrender his devices or face 10 years in prison.

The amici include: The Cato Institute; Liberty Justice Center; Pacific Legal Foundation; John Cutonilli; Firearms Policy Coalition; FPC Action Foundation; Firearms Regulatory Accountability Coalition, Inc.; NST Global, LLC; B&T USA, LLC; Gun Owners of America, Inc.; Gun Owners Foundation; Gun Owners of California, Inc.; Heller Foundation; Tennessee Firearms Association; Virginia Citizens Defense League; Grass Roots North Carolina; Rights Watch International; America’s Future; and Conservative Legal Defense and Education Fund.

The seven briefs address a broad array of issues, including the proper application Chevron deference, the rule of lenity taking precedence over Chevron deference, and the mechanics of how bump stocks and semi-automatic weapons operate. Excerpts follow:

“The U.S. Justice Department—through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)— broke from years of precedent and discovered a new power to prohibit that widely held type of firearm accessory. That power does not exist, and this Court should not defer to the government’s conclusions.”
The Cato Institute

“Indeed, because ATF admits that virtually all semiautomatic rifles can be ‘bump fired’ with or without a bump stock, and often with the use of common household items—or even one’s finger—ATF’s definition would render all such firearms illegal as machineguns themselves or, when possessed along with common household items or even just pants with belt loops, a ‘combination of parts from which a machinegun can be assembled.’ That is plainly beyond the original public understanding of the statutory language and hence unreasonable.”
Firearms Policy Coalition and FPC Action Foundation

“ATF is neither engaging in simple fact finding, nor ‘filling in the details’ in promulgating its Bump Stock Rule. Instead, ATF rewrote the Congressional definition of ‘machinegun,’ which was intended to act as a constraint on its power. An ‘intelligible principle’ cannot serve its purpose of constraining the agency if the agency has absolute discretion to change that principle. Thus, the Court should construe the statute narrowly to avert this nondelegation concern and hold that the statute does not authorize the Bump Stock Rule.”
Liberty Justice Center

“This unlawful regulatory action transformed more than half a million law-abiding American citizens into presumptive felons overnight. And ATF now demands that these citizens surrender their bump stocks—lawfully obtained property that, in the aggregate, represents over $100 million in purchase value—or face potential criminal liability, including prison time. This is precisely the type of regulatory behavior that, in our constitutional system, must be rigorously reviewed by the independent judiciary to ensure that only Congress, not the Executive, has ‘ma[d]e an act a crime.’”
Firearms Regulatory Accountability Coalition, Inc., NST Global, LLC, and B&T USA, LLC

“Expanding the definition of ‘machinegun’ to include any semiautomatic firearm configured to be rapidly fired semi-automatically via a bump stock is no different from ‘[e]xpanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers,’ and ‘would take a chainsaw to these nuanced problems when Congress meant to use a scalpel.’ … If ATF’s interpretation of § 5845(b) is allowed to stand, it potentially could redefine virtually any of the tens of millions of semiautomatic rifles in the nation as machineguns.”
Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Heller Foundation, Tennessee Firearms Association, Virginia Citizens Defense League, Grass Roots North Carolina, Rights Watch International, America’s Future, and Conservative Legal Defense and Education Fund

“This Court should decline to follow the Tenth and D.C. Circuit panel majorities and instead follow the far more persuasive reasoning of the district court below that ‘deference has no role to play when liberty is at stake.’ … The Court should hold that the rule of lenity takes precedence over Chevron deference.”
Pacific Legal Foundation

“The manual actions of the shooter make bump-fired firearm not a machine gun, yet a firearm equipped with a bump stock, which requires the same type of manual participation of the shooter, is a machine gun. The ATF cannot have it both ways.”
John Cutonilli

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document

July 25, 2022 | NCLA Asks Full Fifth Circuit to Toss ATF’s Bump Stock Ban and Reject Deference to the Government

Washington, DC (July 25, 2022) – Today, the New Civil Liberties Alliance filed its appellant brief in the U.S. Court of Appeals for the Fifth Circuit in Michael Cargill v. Merrick B. Garland, et al. This lawsuit could determine who has the constitutional authority to change the criminal law if changes are warranted. The appeals court in June vacated the three-judge panel’s opinion upholding ATF’s legal interpretation and granted en banc review—that is, review by all 17 active judges on the court. Adoption of the rarely used en banc procedure is a sign that the appeals court views the issues in this case as highly important. The Fifth Circuit will be the third U.S. Court of Appeals to hear this issue en banc, but it could be the first to reach the merits. The Tenth Circuit dismissed the en banc over five dissents, and the Sixth Circuit split 8-8 on the questions at stake.

NCLA is seeking invalidation of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Bump Stock Final Rule, in which the agency declared that non-mechanical bump stocks are “machineguns” within the meaning of the relevant statute. Because the Final Rule is not a valid legislative rule, ATF may not seek judicial deference to its statutory interpretation. Moreover, the agency expressly waived any deference claim for the Bump Stock Rule under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Plaintiff Michael Cargill alleges that: (1) the Final Rule conflicts with the statutory definition of a machinegun and thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to the extent that the courts determine that the definition of machinegun is ambiguous with respect to bump stocks, they should apply the rule of lenity to determine that bump stocks are not machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump stocks are prohibited machineguns, then it would be an unconstitutional delegation of Congress’s legislative powers.

The district court’s erroneous construction of the statute has been rejected by a significant majority of federal appellate judges outside the Fifth Circuit who have considered the same question. The best reading of the statute is, in fact, the one espoused by ATF before December 2018: non-mechanical bump stocks are not “machineguns.” A separate NCLA lawsuit, Aposhian v. Garland, also challenges the Final Rule. That suit is pending in the U.S. Supreme Court on a petition for a writ of certiorari.

The current statute, adopted in 1986, prohibits “machineguns” in a manner that does not include non-mechanical bump stocks. The evidence at trial demonstrated conclusively that a semi-automatic rifle equipped with a non-mechanical bump stock is not a weapon that “shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot … by a single function of the trigger.” It is impossible to square the Final Rule’s conclusion that bump stocks are machineguns with the uncontested evidence that every shot fired by a bump-stock-equipped semi-automatic rifle requires a separate “function” of the trigger. Furthermore, it is unlawful for a prosecutorial entity like ATF to rewrite existing law. Congress itself must initiate any change in gun control laws. The Court should enjoin ATF’s brazen effort to enact a new criminal law on its own.

NCLA released the following statements:

“Two appeals courts—the D.C. and Tenth Circuits—have upheld the Final Rule. But they did so only after placing a thumb on the scale by deferring to the Government’s interpretation of the ‘machinegun’ statute. Any court that conducts a truly independent analysis of the statute will quickly discern that bump stocks do not fit within the statutory definition of a machinegun.”
Rich Samp, Senior Litigation Counsel, NCLA

“Like a majority of federal appeals judges who have weighed in on the merits, NCLA believes the federal statute banning machine guns does not encompass bump stocks. But if there is any ambiguity in the statute, then the rule of lenity still dictates construing the statute in Mr. Cargill’s favor to exclude bump stocks. Under no circumstance may ATF rewrite the statute to create new criminal liability for bump stock owners.”
Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document

 

 

June 23, 2022 | Fifth Circuit Grants en Banc Review in Lawsuit Challenging Bump-Stock Ban and Chevron

Washington, DC (June 23, 2022) – The New Civil Liberties Alliance commends the U.S. Court of Appeals for the Fifth Circuit for granting en banc review in Michael Cargill v. Merrick B. Garland, et al. today. NCLA is challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ newly discovered interpretation of a 35-year-old statute to reverse earlier ATF determinations that bump-stock devices were not “machineguns.” Congress has generally banned the possession of fully automatic machineguns but has not prohibited bump stocks, and it is thus unlawful for a prosecutorial entity like ATF to rewrite the law in Congress’s place. NCLA seeks to overturn the federal ban on bump stocks to prevent ATF’s usurpation of Congress’s proper legislative role.

ATF’s bump-stock ban has a significant negative impact on hundreds of thousands of law-abiding citizens. By ATF’s own estimate, Americans purchased as many as 520,000 bump stocks during the decade-plus interval when ATF said that it was legal to do so. In ruling against Mr. Cargill, the Fifth Circuit panel branded him and all others who purchased bump stocks before 2018 as felons who have avoided criminal liability solely because the federal government has chosen to exercise prosecutorial discretion.

The Fifth Circuit panel held that the bump-stock rule’s re-interpretation of the statutory definition of “machineguns”—which ATF used to define bump stocks as machineguns—“is the best interpretation of the statute.” Several federal appeals courts have addressed the meaning of the statute in question. The panel’s decision conflicts with the decision of every one of the other appeals courts that has ruled on the issue. A conflict among the circuits existed even before the panel’s ruling, which has only exacerbated the split. By agreeing to rehear the case en banc, the Fifth Circuit now has an opportunity to correct the panel’s legal errors.

The en banc court will consider two issues of exceptional importance: (1) does the statute’s definition of “machineguns” unambiguously include bump stocks?; and (2) if the statute is ambiguous, is ATF’s construction entitled to Chevrondeference, or does the rule of lenity require interpreting any ambiguity in this statute that has criminal applications in Mr. Cargill’s favor? The case is calendared for oral argument in New Orleans, LA, on September 12. NCLA has a similar case pending cert. at the U.S. Supreme Court in Aposhian v. Garland, et al.

NCLA released the following statements:

“The New Civil Liberties Alliance is delighted that the U.S. Court of Appeals for the Fifth Circuit has agreed to hear Michael Cargill’s case en banc. The issue of whether the rule of lenity or Chevron deference has a role to play in construing the statutory ban on machine guns in a way that outlaws bump stocks is extremely important. Given that two other circuits have heard similar cases en banc, we are not surprised by today’s news. But we do look forward to presenting Mr. Cargill’s case to the full court, and we are confident that it ultimately will correct the multiple legal errors in the panel decision below.”
Mark Chenoweth, President and General Counsel, NCLA

“The Fifth Circuit panel decision was out of step with other judges around the country, a majority of whom have determined that ATF overstepped its authority when it reversed its longstanding position and held that bump stocks are illegal ‘machineguns.’ We are gratified that the en banc Fifth Circuit has agreed to step in and take a second look at the panel’s rubberstamping of the ATF’s decision.”
Rich Samp, Senior Litigation Counsel, NCLA

For more information visit the case page here and the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document

 

January 28, 2022 | NCLA Seeks Fifth Circuit En Banc Review of ATF’s Bump Stock Ban to Resolve Circuit Split

Washington, DC (January 28, 2022) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a petition for rehearing en banc in the lawsuit, Michael Cargill v. Merrick Garland, et al. NCLA is asking the full bench of the U.S. Court of Appeals for the Fifth Circuit to review two questions: (1) whether a statute’s definition of “machineguns” unambiguously includes bump stocks, and (2) if it is ambiguous, does either the rule of lenity or Chevron deference apply to the 2018 reinterpretation of the statute adopted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The previous Fifth Circuit panel decision in this lawsuit is at odds with the decision of every appeals court that has ruled on the issue, creating a conflict among the circuits.

For well over a decade, ATF determined that non-mechanical “bump stock” devices were not “machineguns,” and hence their possession was not prohibited. In 2018, the agency reversed course, creating a new “Bump Stock Rule,” holding that bump stocks are “machineguns” after all. It turned hundreds of thousands of bump stock owners into felons overnight and ordered law-abiding Americans to destroy or surrender their devices to ATF or face ten years in prison. ATF admits that the loss of property will exceed $100 million.

The Fifth Circuit panel held that the Bump Stock Rule’s interpretation of the statutory definition of “machineguns”—which ATF used to determine that bump stocks are machineguns—“is the best interpretation of the statute.” That holding conflicts with holdings of at least three other federal appeals courts—the D.C. and Tenth Circuits and the U.S. Navy-Marine Corps Court of Criminal Appeals. Plus, the en banc Sixth Circuit deadlocked 8-8 on the issue and thus was unable to render a decision. The Navy-Marine Corps court held that bump stocks are not “machineguns”; it also held that even if the statute were ambiguous, no deference would be warranted because the federal government has consistently and affirmatively waived any right to deference.

If the Court rules against ATF on the first of the two questions presented, it may need to address the deference question. The Supreme Court has repeatedly held that deference is unwarranted when the federal government affirmatively disavows it. It has also repeatedly rejected the view that the government’s reading of a criminal statute is entitled to deference. A conflict among the circuits existed even before the panel’s ruling, and that ruling only exacerbated the conflict. In light of this split, this lawsuit presents questions of exceptional importance that the full Fifth Circuit should address—as the full Sixth Circuit and full Tenth Circuits already did.

NCLA released the following statements:

“The panel decision in this case is out of step with decisions from other appeals courts. The panel held that ‘the best reading’ of the federal machinegun statute is that bump stocks are ‘machineguns.’ Fully 21 of the 27 judges from other federal appeals courts who have addressed the issue have disagreed with that holding. Rehearing en banc is warranted to resolve that conflict.”

Rich Samp, Senior Litigation Counsel, NCLA

“The panel tried to dodge the rule of lenity and Chevron deference questions inherent in this case by deciding—implausibly—that ATF’s newly discovered interpretation of a 35-year-old statute is the ‘best reading’ of the law. The full Fifth Circuit should not countenance that too-clever-by-half approach to statutory interpretation. Congress never banned bump stocks. The bills introduced in Congress to ban bump stocks did not contain 10-year prison sentences for the offense. Interpreting bump stocks to be ‘machineguns’ subject to that 10-year prison sentence makes a mockery of the rule of lenity.”

Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document

 

March 8, 2021 | NCLA Appeals Bump Stock Ban Ruling that Allowed ATF to Get Away with Rewriting Criminal Law

Washington, DC (March 8, 2021) — Congress has not prohibited bump stocks, and it is thus unlawful for a prosecutorial entity like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to rewrite the law in Congress’ place. That’s the basic argument the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, makes in its opening brief filed today in the U.S. Court of Appeals for the Fifth Circuit in Cargill v. Wilkinson, et al.

The case of NCLA’s client, Michael Cargill of Austin, TX, was the first challenge to ATF’s bump stock ban to go to trial, last September. Instead of shutting down an administrative shortcut and restoring constitutional lawmaking principles, the U.S. District Court for the Western District of Texas turned a blind eye to numerous legal discrepancies caused by ATF’s unauthorized revision of a federal statute.

ATF does not have the power to issue binding legislative rules like the Final Rule targeting bump stocks. Yet, in December 2019, under direction from the Attorney General and U.S. Department of Justice, ATF’s Final Rule altered the statutory definition of a “machinegun” to include bump stocks. It turned an estimated 520,000 bump stock owners into felons overnight and ordered law-abiding Americans to destroy or surrender their devices to ATF or face 10 years in prison. Even though the Rule’s promulgation involved determining the scope of criminal liability, which is solely Congress’ responsibility, the district court concluded that bump stocks have always been prohibited by the statute—echoing ATF’s distorted claim that its rule is “interpretive” not “legislative” in nature.

But before issuing the new rule, ATF had publicly said for well more than a decade—under administrations of both parties—that bump stocks were not machineguns. And the rule significantly rewrites sections in the Gun Control Act and National Firearms Act.

Congress unambiguously drew the statutory line between (1) weapons that fire one bullet with a single function of the trigger and (2) machineguns, which fire multiple rounds continuously with one function of the trigger. Bump stocks do nothing to change the way a semi-automatic weapon’s trigger functions. So, even with a bump stock, a person cannot fire more than one shot every time a gun’s trigger is pulled (or “bumped”). Congress left no room for the agency to issue its rule. What ATF did circumvented the plain statutory text.

ATF lacks the authority to line-edit the criminal code. But the Final Rule does just that in purporting to impose new legal obligations, and it thus constitutes an unconstitutional divestment of legislative authority—from Congress to the Executive Branch.

NCLA is asking the Fifth Circuit to reverse the district court’s decision. The case is not about gun control. Rather, it brings to the fore the question who gets to make the laws that restrict the American people’s liberty.

NCLA released the following statements:

“ATF thinks it can get away with a brazen power grab simply because it involves a sensitive topic. No matter one’s stance on bump stocks, we should all be deeply concerned about the idea that federal prosecutors can rewrite criminal laws at will and make anyone into a criminal overnight.”

— Caleb Kruckenberg, NCLA Litigation Counsel

“The U.S. Court of Appeals for the Fifth Circuit has an opportunity to be the first court to set aside ATF’s unlawful Final Rule. Although six federal appeals court judges in two other cases have now clearly explained why the Rule contradicts the statute, no court has yet secured a majority to set the Rule aside on that basis.”

— Mark Chenoweth, NCLA Executive Director and General Counsel

For more information about this case visit here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document 

November 25, 2020 | NCLA Will Appeal Trial Judge’s Flawed Ruling that Bump Stocks Are “Machineguns” to Fifth Circuit

Washington, DC (November 25, 2020) – The U.S. District Court for the Western District of Texas rendered a decision on Tuesday in the case of Michael Cargill v. William Barr, et al., concluding that NCLA client Michael Cargill of Austin, Texas is not entitled to legally possess a bump stock because bump stocks have always been “machineguns” under federal law. NCLA is seeking to overturn the federal ban on bump stocks issued Dec. 26, 2018 by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and to halt its enforcement, because NCLA believes federal agencies do not have the power to alter federal statutes. NCLA believes that if the federal government wants to outlaw bump stocks, Congress has to do it.

In its ruling the court found that even without reliance on Chevron judicial deference, the “Defendants’ interpretations of the terms ‘single function of the trigger’ and ‘automatically’ in the statutory definition of ‘machinegun’ properly include bump stocks within that definition.” The court reached the conclusion that the statutory language is not vague or ambiguous, even though ATF itself interpreted the language completely differently for well over a decade. In 2010 the ATF conducted a physical examination and test-fire of the Slide Fire bump stock and determined that it “was not regulated as a firearm under the Gun Control Act or the National Firearms Act.” But after the tragic massacre in Las Vegas, Nevada in October of 2017, ATF contradicted its own prior interpretation of the law and disregarded its substantive expertise in the mechanics and operation of firearms in order to alter federal criminal law and ban bump stocks. Because the court decided that the statute is clear, it also refused to apply the rule of lenity in favor of Mr. Cargill.

The Court also held that the Final Rule, which turned an estimated 520,000 bump stock owners around the country into felons overnight, is a “validly issued legislative rule” that does not violate principles of non-delegation or separation of powers. Even the government admitted that the rule was not a legislative rule. NCLA contends that allowing ATF to criminalize bump stocks with its Final Rule exceeds both core constitutional limits on Congress’s ability to delegate legislative power and violates the separation of powers. Because it involves determining the scope of criminal liability, NCLA argues that only Congress could ban the possession of bump stock devices. ATF’s purported exercise of that authority is therefore unconstitutional.

NCLA will appeal the decision in the Cargill case to the U.S. Court of Appeals for the Fifth Circuit. In a related challenge brought by NCLA on behalf of W. Clark Aposhian of Salt Lake City, Utah, the U.S. Court of Appeals for the Tenth Circuit vacated an earlier panel decision on September 4, 2020, and granted NCLA’s petition for rehearing en banc. NCLA will file a reply in the Aposhian case on Thursday, December 5th.

NCLA released the following statement:

“The court’s decision rests on the dubious conclusion that bump stocks have always been prohibited, even though ATF’s official stance for years was that these devices are not machineguns. No other court in the country has accepted the government’s argument to that effect. We look forward to the Fifth Circuit Court of Appeals swiftly reversing this decision.”

– Caleb Kruckenberg, NCLA Litigation Counsel

For more information visit the case page here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group 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.

Download the full document

 

October 6, 2020 | NCLA Wages Legal Battle Against ATF’s Unlawful Bump Stock Final Rule in Texas and Utah

Washington, DC (October 6, 2020) –The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is substantively rewriting federal criminal law with its Final Rule on bump stock-type devices, concluded the New Civil Liberties Alliance in two recent court filings against the ATF in lawsuits originally filed in Texas and Utah.

NCLA, a nonpartisan, nonprofit civil rights group, filed closing argument in Michael Cargill v. ATF in the District Court for the Western District of Texas last Friday. NCLA also filed a supplemental brief in the U.S. Court of Appeals for the Tenth Circuit late Monday evening in the case of Aposhian v. Barr after the court agreed last month to rehear the case en banc.

NCLA represents Michael Cargill of Austin, Texas and W. Clark Aposhian of Salt Lake City, Utah in the lawsuits against the ATF. Both lawsuits seek to overturn the federal ban on bump stocks issued Dec. 26, 2018 and to halt its enforcement.

At issue in both cases is whether the Slide Fire bump stock falls under the statutory definition of a “machinegun,” which is a firearm that shoots multiple times after only a single physical input. NCLA argues that in 2010 the ATF conducted a physical examination and test-fire of the Slide Fire bump stock and determined that it “was not regulated as a firearm under the Gun Control Act or the National Firearms Act.”

But after the tragic massacre in Las Vegas in October of 2017, the ATF rejected its own prior interpretation of the law and disregarded its substantive expertise in the mechanics and operation of firearms in order to alter federal criminal law.

NCLA contends that if ATF could criminalize bump stocks with its Final Rule, it would violate core limits on Congressional delegation of authority. Because it would involve a purely political determination of the scope of criminal liability, only Congress could pass a legislative rule that criminalizes the possession of bump stock devices. ATF’s purported exercise of that authority is therefore unconstitutional.

NCLA presented its case in Cargill at trial on September 9, 2020. This was the first legal challenge to the 2018 rule to proceed to trial. In Mr. Aposhian’s case, the U.S. Court of Appeals for the Tenth Circuit vacated an earlier panel decision on September 4, 2020, and it granted NCLA’s petition for rehearing en banc. In this case, NCLA argues that Chevron deference cannot be invoked by the court to decide a case when the government waives any reliance on the doctrine.

The Final Rule turned an estimated 520,000 bump stock owners around the country, like Mr. Cargill and Mr. Aposhian, into felons overnight unless they destroyed or surrendered their lawfully acquired Slide Fire bump-stock devices. NCLA has brought these lawsuits to ensure that our nation’s administrative agencies may not write new criminal laws and so that Congress takes responsibility for any such lawmaking.

NCLA released the following statement: 

“Mr. Cargill’s case is the first challenge to the bump stock ban to go to trial. At trial we learned what we suspected all along—the ban had nothing to do with how bump stocks work, or even how weapons are classified under existing law. It did, however, have everything to do with ATF’s effort to rewrite the law for political considerations. The court should reject ATF’s actions and declare the ban unlawful.”

– Caleb Kruckenberg, NCLA Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group 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.

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January 8, 2020 | WATCH: NCLA Video Calls Out ATF for Rewriting Statute and Turning Law-Abiding Citizens into Criminals Overnight

Washington, DC (January 8, 2020) – Congress—and only Congress—has the power to write new laws, but a video released today by the New Civil Liberties Alliance features the case of Austin, Texas resident Michael Cargill, who believes the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not act lawfully when it rewrote a statute banning bump stocks. Cargill says the ATF (along with the U.S. Department of Justice) failed to follow the law when they issued a regulation criminalizing the possession of bump stocks effective March 26, 2019. Cargill surrendered two bump stocks to his local Austin ATF Field Office in accordance with the Final Rule, but he is challenging the ban in federal court with NCLA’s help.

Video Excerpts:

Michael Cargill, NCLA client: “The bump stock ban turned innocent law-abiding citizens into criminals overnight even though they were compliant with the statute. And you know that’s not right.”

Caleb Kruckenberg, Litigation Counsel, NCLA: “The goal of our case here is to tell ATF that they can’t get away with this kind of administrative law-making. This isn’t constitutionally permissible, and it goes against everything that our nation was founded on.”

Mark Chenoweth, Executive Director & General Counsel, NCLA: “This case is not about where you stand on bump stocks. It’s about the rule of law. It’s about whether an agency can rewrite a statute and turn a law-abiding citizen into a criminal. If ATF can ban bumps stocks in this way, any agency can ban anything.”

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 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.

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March 26, 2019 | NCLA Files Lawsuit in Texas Against the ATF’s Bump Stock Final Rule

Washington, D.C. — The New Civil Liberties Alliance (NCLA) filed a lawsuit in the U.S. District Court for the Western District of Texas, Austin Division, against the  Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The case seeks to overturn the federal ban on bump stocks and to halt its enforcement. NCLA contends that only Congress, not an administrative agency like the ATF, can write criminal laws such as the ban on
bump stocks.

NCLA represents Austin, Texas resident and gun enthusiast Michael Cargill. Mr. Cargill surrendered two bump stocks this afternoon at the Austin ATF Field Office in accordance with the ban. Whether bump stocks should be outlawed is a question that Congress must address. Only Congress— and not an administrative agency—has the power to ban these devices. NCLA believes the ATF did not act lawfully in issuing the ban.

On March 21, 2019, the U.S. Court of Appeals for the Tenth Circuit issued a temporary stay of the bump stock ban that applies to another NCLA client, W. Clark Aposhian, a resident of Salt Lake City, Utah, who has challenged the ban in federal court. The stay prevents the enforcement of the bump stock ban against Mr. Aposhian while the court considers his Emergency Motion for Preliminary Injunction Pending Appeal.

“Administrative agencies may not rewrite a law that Congress passed. Yet that is what the ATF and DOJ have done with the bump stock rule. The ban perverts the rule of law and upends our constitutional system.”—Steve Simpson, NCLA Senior Litigation Counsel

“Two different federal Courts of Appeals have ordered the ATF to halt its bump stock rule against legal challengers. Today, rather than abide by an order the ATF had no right to issue, Mr. Cargill will be joining those efforts to resist this unlawful rule.” –Caleb Kruckenberg, NCLA Litigation Counsel

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.

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