The Volokh Conspiracy

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Bump Stock Ban Regulation Isn't Authorized by Federal Law, Says Fifth Circuit En Banc


From the majority opinion, by Judge Jennifer Walker Elrod, in Cargill v. Garland:

Since the National Firearms Act of 1934, federal law has heavily regulated machineguns. Indeed, as proposed, that law was known to many as "the Anti-Machine Gun Bill." The possession or transfer of a machinegun was eventually banned through the Gun Control Act of 1968 and the Firearms Owners' Protection Act of 1986 [with some guns grandfathered in -EV]. Today, possession of a machinegun is a federal crime, carrying a penalty of up to ten years' incarceration.

This appeal concerns a regulation promulgated by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, purporting to interpret the federal prohibition on machineguns as extending to bump stocks. A bump stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.

But ATF reversed its longstanding position in 2018, subjecting anyone who possessed a bump stock to criminal liability. ATF reversed its position to a great extent in response to the tragic events that occurred in Las Vegas on October 1, 2017. On that day, a deranged gunman murdered dozens of innocent men and women, and injured hundreds more. To carry out this appalling crime, the gunman used many weapons and utilized many accessories—including bump stocks.

Public pressure to ban bump stocks was tremendous. Multiple bills to that effect were introduced in both houses of Congress. But before they could be considered in earnest, ATF published the regulation at issue here, short-circuiting the legislative process. Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation at issue. He now challenges the legality of that regulation, arguing that a bump stock does not fall within the definition of "machinegun" as set forth in federal law, and thus that ATF lacked the authority to issue a regulation purporting to define the term as such.

Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of "machinegun" set forth in the Gun Control Act and National Firearms Act.

But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability. A rich legal tradition supports the "well known rule" that "penal laws are to be construed strictly." As Chief Justice Marshall explained long ago, the rule "is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment."

The Government's regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government's interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.

{Of the sixteen members of our court, thirteen of us agree that an act of Congress is required to prohibit bump stocks, and that we therefore must reverse. Twelve members (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reverse on lenity grounds. Eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reverse on the ground that federal law unambiguously fails to cover non-mechanical bump stocks.}

Judge Stephen Higginson, joined by Judges Dennis and Graves, dissented, largely for the reasons given in the panel opinion, but also as to the rule of lenity argument:

The Supreme Court has repeatedly instructed that "the rule of lenity only applies, if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the [c]ourt must simply guess as to what Congress intended." Under this standard, the Supreme Court has been clear that we do not invoke lenity just because "multiple, divergent principles of statutory construction" are available, "the statute's text, taken alone, permits a narrower construction," or "a law merely contains some ambiguity or is difficult to decipher." Rather, the Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations.

Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity. In doing so, today's ruling usurps Congress's power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law….

Congratulations to Richard Samp, Harriet Hageman, and Mark Chenoweth of the New Civil Liberties Alliance, who represent plaintiff.