Michael Cargill v ATF


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.

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Case has been set for an
initial pretrial conference


U.S. District Court for the Western District of Texas

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.


Aug 14, 2019 | Order Setting Initial Pretrial Conference

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

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Mar 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.

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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 temporarystayof 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 consideres 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

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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