NCLA Appeals Bump Stock Ban Ruling that Allowed ATF to Get Away with Rewriting Criminal Law
September, 2019 - "Houston Man Is First to Be Charged Under Bump Stock Ban, Officials Believe"
New Civil Liberties Alliance 9 March 2021
Michael Cargill v. Robert M. Wilkinson, Acting U.S. Attorney General, U.S. Department of Justice, Regina Lombardo, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Bureau of Alcohol, Tobacco, Firearms and Explosives
Washington, D.C., March 08, 2021 (GLOBE NEWSWIRE) -- 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 .. https://tinyurl.com/tsje8y2a.. 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.
[INSERT: DesertDrifter's, I think it is funny that the cretins whining about obama or whoever taking away guns or accessories sort of missed the only mandatory turn-in... ordered by trump for bumpstocks. By law, they had to be destroyed or turned in as of March of this year. So if they have anyone to fear, it should be trump. Didn't hear any whining about TRUMP ordering a turn-in. P - "The rule required the owners of any bump stocks to destroy the devices or turn them in at an ATF office prior to March 26, when the rule went into effect." https://investorshub.advfn.com/boards/read_msg.aspx?message_id=150556510]
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
Utah man’s challenge to bump stock ban again comes in front of the 10th Circuit
It was the first time the full U.S. 10th Circuit Court of Appeals heard an argument virtually
A bump-stock device that fits on a semi-automatic rifle to increase the firing speed, making it similar to a fully automatic rifle, is shown at a Salt Lake City gun store. George Frey, Getty Images file
By Shelly Bradbury | sbradbury@denverpost.com | The Denver Post
PUBLISHED: January 27, 2021 at 4:28 p.m. | UPDATED: January 27, 2021 at 4:29 p.m.
A Utah man’s legal challenge to the federal ban on bump stocks was reheard by the 10th U.S. Circuit Court of Appeals on Wednesday.
Much of the discussion was about whether the The Bureau of Alcohol, Tobacco, Firearms and Explosives overstepped its authority when it defined bump stocks as machine guns in order to prohibit them under federal law.
A three-judge panel last year ruled against Clark Aposhian’s request to temporarily block the ban while his legal challenge is ongoing, but the full court agreed to reconsider that panel’s decision during a virtual hearing — the first time the full court heard an argument virtually.
Bump stocks are accessories that allow semi-automatic guns to fire continuously with one pull of the trigger, according to the ATF. The Trump administration banned the devices in 2018 after a gunman in Las Vegas used a bump stock in a 2017 mass shooting that killed 58 people and injured hundreds.
Aposhian’s attorney, Caleb Kruckenberg with the New Civil Liberties Alliance, argued that the ATF had no authority to ban bump stocks, and that it needed to go through Congress.
“This case is really about whether the agency gets to overstep, and whether the agency gets to take on the role of judging and interpreting the statute,” Kruckenberg said.
Brad Hinshelwood, an attorney with the U.S. Department of Justice, argued that ATF was well within its rights because bump stocks fall within the machine gun ban passed by Congress in 1986. Bump stocks essentially turn guns into machine guns, he said.
“Congress’ ban on machine guns would be largely meaningless if it could be so easily circumvented,” he told the judges.
Wednesday’s argument was only whether Aposhian should be granted a preliminary injunction and have his bump stock returned — it had been surrendered to the ATF — while his overall challenge to the ban is ongoing.
The overall challenge is still at the federal district court level, although whatever the appeals court decides on the preliminary injunction is likely to heavily influence what happens in the lower court, Kruckenberg said. That’s because the appellate judges will say how likely it is Aposhian will succeed on his overall challenge.
The judges will issue a decision in the coming weeks.
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