If you believe the lifting of the ATF’s bump stock ban by the U.S. Fifth Circuit Court of Appeals is a Second Amendment question, you are mistaken, said the lead attorney for plaintiff Michael Cargill of Texas.
“This case doesn’t raise any Second Amendment issues,” Richard Samp of the New Civil Liberties Alliance and lead counsel on the lawsuit against the Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), told the Epoch Times.
“The decision [handed down Jan. 6] could have broad applications beyond just one issue with the ATF.”
In 2019, Cargill sued the ATF over its bump stock ban. Cargill claimed the ban was an unconstitutional usurpation of Congress’ legislative powers by the U.S. Department of Justice and the ATF at the direction of then-President Donald Trump. Cargill’s claim is based on the fact that the ATF had publicly stated on several occasions that the bump stock was not something it regulated.
“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 ‘machine gun’ set forth in the Gun Control Act and National Firearms Act” the ruling from the U.S. Court of Appeals for the Fifth Circuit states.
According to Samp, the Appeals court has remanded the case to the U.S. District Court for the Western District of Texas. However, he pointed out that the government will likely appeal to the U.S. Supreme Court at some point.
The high court has declined to hear previous appeals. However, the Cargill decision conflicts with other rulings in which the ban was upheld.
“That’s the primary reason the Supreme Court agrees to hear these cases,” Samp said.
Samp said the case could go before the high court as early as next fall, though there is no way to know for sure. He noted how this case could have repercussions across the entire network of federal agencies. It goes to the heart of the debate over how much and what type of authority an agency can be granted under the U.S. Constitution.
A bump stock is an add-on part that enables a shooter to increase a rifle’s rate of fire. It does not alter the actual firing mechanism but enables the shooter to pull the trigger more rapidly. Shooters previously got the same effect using shoe laces, twine, or by hooking the thumb of their trigger hand in a belt loop.
The ATF had previously determined bump stocks were not firearms and, therefore, not regulated by the Gun Control Act of 1968 or the National Firearms Act of 1934. Both prohibit private ownership of machine guns and altering existing firearms into machine guns.
In an open letter dated July 7, 2010, the ATF wrote, “The stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed … Accordingly, we find that the ‘bump stock’ is a firearm part and is not regulated as a firearm under the Gun Control Act or the National Firearms Act.”
The ATF reiterated this point in at least two subsequent letters. Samp said that Congress must make any federal regulation of bump stocks. However, that isn’t what happened.
On Oct. 1, 2017, in Las Vegas, Nevada, a gunman using rifles outfitted with bump stocks killed 60 people and wounded more than 400. In a memo dated Feb. 20, 2018, Trump wrote that he told Attorney General Jeff Sessions to find a way to ban bump stocks.
“Accordingly, following established legal protocols, the Department of Justice started the process of promulgating a Federal regulation interpreting the definition of ‘machine gun’ under federal law to clarify whether certain bump stock type devices should be illegal,” the memo reads.
On Dec. 18, 2018, the ATF issued a new rule declaring bump stocks illegal and ordering the owners to either turn in their bump stocks or destroy them. Samp said the ATF exceeded its authority.
Congress Can Set Bans
“Congress, if it wanted to, could pass a law banning bump stocks. That’s been our point all along. That’s the kind of decision Congress should make,” Samp said.
He pointed out that several state legislatures have banned the item without serious challenges under the Second Amendment.
According to the website worldpopulationreview.com, Hawaii, California, Nevada, Washington, Vermont, New York, Massachusetts, New Jersey, Connecticut, Maryland, Delaware, Florida, and the District of Columbia ban bump stocks.
William Kirk is a Washington-based attorney who specializes in Second Amendment law. He also hosts the YouTube channel Washington Gun Law. Kirk posted a video on this case at https://www.youtube.com/watch?v=oxa-0youn4A.
He agrees with Samp. He said the ATF ban violates the separation of powers outlined in the U.S. Constitution. And this legal principle applies to all federal agencies.
Separation of Powers at Risk
“It’s literally an attack on the structure of how legislation in our country is meant to be done,” Kirk told The Epoch Times. “This doesn’t go just for the ATF.”
Kirk said that for years federal agencies have been able to promulgate rules and regulations with criminal penalties attached to them with little notice from the courts. But as their reach has expanded and people file lawsuits, the courts are beginning to act.
“We’re seeing [the courts] begin to put up barriers around all of these alphabet agencies,” said Kirk.
Both lawyers said that once the Second Amendment protections are removed from the bump stock question, the Fifth Amendment becomes a factor. This amendment protects citizens from being forced to testify against themselves, guarantees due process, and—specific to this case—prevents the seizure of private property “without just compensation.”
In his lawsuit, Cargill claims he was forced to give the ATF personal property—the bump stock he had purchased legally—but he was not compensated. And Samp said his client is not alone. The DOJ estimates that up to 520,000 bump stocks were sold before the ban. By order of the government, they were subsequently destroyed or confiscated. Samp said there could be a flood of lawsuits in the future.
“Many people, as a result of the 2018 rule, had to turn in their bump stocks or destroy them. There is a very strong claim for compensation,” he said.
Kirk pointed out that agencies, from the Department of Education to the Environmental Protection Agency to the Internal Revenue Service, make rules and set policies that cost Americans millions of dollars annually. Still, Kirk doesn’t expect the federal agencies to give up their power easily.
“There’s a lot more battles to be fought,” Kirk said.
“I think we’re going to see a good old-fashioned fistfight.”