The Volokh Conspiracy
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Preview of Supreme Court Bump Stock Case
In Cargill v. Garland, the Court should apply the National Firearms Act text that Congress did enact, and not the text that gun control advocates wish had been enacted.
Tomorrow, February 28, the Supreme Court will hear oral argument in Garland v. Cargill; the case challenges the administrative prohibition on bump stocks imposed by the Trump and Biden administrations, via interpretation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). The Supreme Court docket is here.
I co-authored an amicus brief in the case. The brief is on behalf on 9 U.S. Senators, led by Cynthia Lummis (R-Wyo.), 10 law/history professors, and the Independence Institute (the Denver think tank where I work).
Garland v. Cargill v. is not a Second Amendment challenge. The case is about administrative law: is BATFE's new interpretation of the relevant federal statute (the National Firearms Act of 1934) correct?
Despite the procedural posture, some gun prohibition advocates have been sending frantic emails to prospective donors, warning that if Cargill prevails, all of the bump stock laws enacted by state and local governments will be overturned. This is false. Presuming that the state and local laws were enacted according to proper procedures by state legislatures or city councils, a decision in favor of Mr. Cargill would have no effect on these laws.
The right to arms appears in the case only by implication, as explained in an excellent brief by the Second Amendment Law Center and other civil rights organizations: if BATFE in Cargill can get away with an egregious misinterpretation of the National Firearms Act, then BATFE's next step could be to declare that all semiautomatic firearms are "machineguns."
There are two main issues in Cargill v. Garland: first, principles of statutory interpretation. Second, interpretation of the statute at issue. The Senators' amicus brief addresses both.
Regarding principles of interpretation, the Senators are, unsurprisingly, much in favor of Article I of the Constitution, especially regarding federal criminal laws. Because criminal laws are so consequential, they should be clearly authorized by Congress, and should be clearly written so that citizens can obey them.
In two other cases this term, the Supreme Court is currently considering what do with the Chevron doctrine. (Loper Bright Enterprises v. Raimondo; Relentless, Inc. v. Department of Commerce.) As applied by lower courts, this doctrine holds that any reasonable interpretation by an executive branch of an ambiguous statute is lawful. The Senators argue that even if the Court decides to retain Chevron for certain matters, such as business regulation, Chevron should not be applied to criminal law. Citizens should not be made criminally liable for changing whims of regulatory agencies; here, for example, BATFE ruled 10 times that bump stock devices like those at issue in Cargill are not machine guns. Then, on orders from the President, BATFE adopted a completely contrary, novel interpretation.
Before the Supreme Court, the Solicitor General is not relying on Chevron deference. However, BATFE invoked Chevron deference when announcing its anti-precedential new interpretation, and several lower courts in other circuits upheld the new interpretation on the basis of Chevron.
A second interpretive rule is the Rule of Lenity: in criminal law, an ambiguous statute should be construed against the government. As the Senators argue, Congress has a duty to write clear laws, and enforcement of the Rule of Lenity provides an incentive to do so.
According to the Senators' amicus brief, once all the normal rules of statutory interpretation have been applied, if the statute is still ambiguous, then the Rule of Lenity controls.
However, some (not all) Supreme Court precedent suggests that the Rule of Lenity applies only if there is "grievous" ambiguity. The amicus brief argues that the traditional standard (any reasonable doubt as to statutory meaning) is better rooted in the Anglo-American legal tradition, starting with the universally-accepted principle of the Founding that criminal statutes must be strictly construed.
The Supreme Court followed this approach in a 1992 case involving the very same section of the U.S. Code at issue in Cargill, 26 U.S.C. sect. 5845. See United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992). There, the plurality (Justice Souter) and the concurrence (Justice Scalia) both applied the standard rules of statutory interpretation, found that the statutory subsection was still ambiguous, and then immediately applied the Rule of Lenity, without considering whether the ambiguity was "grievous."
As for the statutory language at issue in Cargill, the National Firearms Act defines a "machinegun" as a that firearm fires "automatically more than one shot … by a single function of the trigger." 26 U.S.C. § 5845(b). Later, the Firearms Owners' Protection Act of 1986 outlawed the acquisition of new machine guns (manufactured after May 19, 1986) by persons other than government employees, and also treated machine gun conversion kits the same as machine guns.
A bump stock does not fit within the statutory definition. A bump stock device makes a firearm operate much more rapidly; like a machine gun, an ordinary gun with a bump stock can fire about four times as fast as an ordinary semiautomatic. However, a gun with a bump stock still fires only one shot per "function" of the trigger.
The Solicitor General and her amici argue at length that "single function of the trigger" should be interpreted to mean "single pull of the trigger." But, obviously, this is not what the statute says. If Congress had enacted a statute that instead said "single pull," then the statute would have exempted the WWI-era Maxim and Vickers machine guns, whose trigger is pushed rather than pulled.
As a fallback, the Solicitor General and amici claim that Congress meant for the National Firearms Act to apply to all rapid-fire guns. But this plainly is not true. The Gatling gun, first patented in 1861, could fire 300 rounds per minute, and by the 1880s could fire 1,200 per minute. It is undisputed that the National Firearms Act does not apply to traditional Gatling guns, which are operated by a hand crank. (Electric-powered Gatling guns are another matter.) The BATFE has twice so ruled.
Notably, neither the Solicitor General nor her amici address the contradiction between their claims of what they want the NFA mean versus the undisputed fact that rapid-fire Gatling guns are not covered by the NFA. If Congress in 1934 had meant to restrict firearms that have more than a particular rate of fire, Congress could have enacted a statute that did so. Given the words of the statute that Congress actually did enact, Cargill v. Garland ought to be an easy case.
