Fifth CIrcuit, En Banc, Strikes Down Bump Stock Ban, 13-3

In what is likely to become a landmark case, the Fifth Circuit, in an en banc decision of all the judges in the circuit, struck down the ATF rule which changed the definition of a machinegun to include bump stocks. Thirteen judges were in the majority, with three judges dissenting. The case is Cargill v. Garland. This correspondent wrote about it previously.  Here is a summation of how the sixteen judges ruled. From the opinion: 

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 udges 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. Chief Judge Richman, Judge Stewart and Judge Southwick concur in the judgment and join in Part V, as does Judge Ho, who also writes separately. Judge Oldham concurs in the judgment and joins in Parts I–IV.A. Judge Haynes only concurs in the judgment and writes separately.

The opinion gives considerable detail about the history of the administrative rule change created by ATF, under pressure from the Trump administration. It shows the rule change stopped the momentum to pass a law banning bump stocks.  This correspondent wrote, at the time, it was better to have the ATF use the rule making process, because it would be easier to overturn in the courts or for a future administration to overturn. Laws are far more difficult to undue. The intense pressure from the media to restrict anything to do with guns was severe. The country could have ended with very bad law, passed, as usual, by the left using an emotional event to pass law which made no sense for the purpose indicated. The Las Vagas event was an extremely rare abuse of bump stocks, a "black swan" event. The Fifth circuit opinion shows this history. From the opinion:

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. 

The opinion continues to show why the plaintiff, Cargill, is correct, and why the Constitution does not allow administrative agencies to make their own criminal law: 

Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, re-veals 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 con-strued strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–95(1820). 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.”Id at 95. 

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. 

The definition of “machinegun” as set forth in the National Firearms Act and Gun Control Act does not apply to bump stocks. And if there were any doubt as to this conclusion, we conclude that the statutory definition is ambiguous, at the very least. The rule of lenity therefore compels us to construe the statute in Cargill’s favor. Either way, we must REVERSE.

On page forty, the opinion sets forth a beautiful explanation of why courts are not allowed to make policy in our constitutional republic. From the opinion:

Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the Final Rule is good public policy. We express no opinion on those arguments because it is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it.13

The judges acknowledge they are reading the progressive arguments put forth in the old media, and feel compelled to respond to it.  It shows how much influence the dominant media has in the judicial system. 

Opinion:

Second Amendment activists take note: It is important to have your arguments before the public, as well as in the legal briefs.

There is an interesting bit of rhetoric about the Chevron doctrine on page 29 of the opinion. It illustrates how insane the Chevron doctrine is. From page 29, explaining the "justification" for the Chevron doctrine:

The justification is that ‘“policy choices’ should be left to executive branch officials ‘directly accountable to the people.”’ Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (quoting Epic Systems v. Lewis, 138 S. Ct. 1612, 1630 (2018) and Chevron, 467 U.S. at 865)).

This is opposite of reality. Executive branch officials in the administrative agencies are not directly accountable to the people at all. In fact, they have been deliberately insulated from being accountable. They are not elected. They cannot easily be fired. The whole doctrine of Progressivism, which spawned these unaccountable agencies is: the supposed uninterested "experts"  act with pure hearts and motives. The theory is they have only the public interest at heart,

Administrative officials in the administrative agencies are not angels. They are men. They are self interested and have political motivations. 

Politicians can pick the "experts" they want to get the policy decisions they want. 

The Republic was far better served when legislative decisions were made in Congress, publicly debated, with self-interest available to public vision by a watchdog media.

The Congress has been severely corrupted since the Obama administration into a rubber stamp for a select few in the leadership.  The "ongoing resolution" nonsense has removed the ability of the Congress to control agencies with the power of the purse.

The vast majority of the Media are all in partisans for the Left and Progressivism.

That is the subject for a different article.

The bump stock decision in the Fifth Circuit sets the stage for an appeal to the Supreme Court. It will be difficult for the Supreme Court to refuse to hear the case, because there will be a clear split in the circuit courts. Bump stocks will be legal in at least the Fifth Circuit. The ATF may be compelled to reimburse people who have been harmed by the illegal rule making. 

In the Tenth Circuit, in the Aposhian case, motions have been filed citing new evidence, and the Fifth Circuit decision.

It seems likely the Biden administration will appeal the decision to the Supreme Court. It is the only avenue left to them to defend the bump stock rule in the courts.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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