In the fight for the ban on bump stocks, lawyers focus on the administrative state
A simple device that accelerates the rate of fire of a semiautomatic weapon is at the center of a case that could cast a shadow on a government agency’s ability to regulate firearms.
For Michael Cargill, a fierce gun rights advocate who sells firearms in Austin, the accessory, a bump stock, was a niche item on the shelves of his store, Central Texas Gun Works, until 2017. It especially appealed to people who were injured or disabled, such as veterans who needed support firing a gun or by “people who just wanted to have fun,” he said.
But that year, a high-stakes gambler stationed on the 32nd floor of a Las Vegas hotel opened fire at a country music festival, killing 60 people and injuring hundreds. were in his arsenal a dozen AR-15 style rifles equipped with the device.
Government officials quickly called for a ban, causing alarm among gun shop owners like Mr. Cargill, 54, a gregarious Army veteran who said the robbery and beating of his grandmother had influenced his views on gun control.
“I was one of the few people who said, ‘Wait a minute, wait a minute,’” said Mr. Cargill, who has challenged the ban and is represented by the New Civil Liberties Alliance, a legal advocacy group that is questioning what it considers it an unlawful use of administrative power. “It’s insane that anyone would go along with this. We have to stop this now.”
On Wednesday, the Supreme Court will rule on whether the Trump administration acted lawfully in issuing a ban that makes it illegal to buy or possess the part. It is not a Second Amendment case. Rather, it is one of a number of challenges aimed at limiting the reach of administrative agencies – in this case the Bureau of Alcohol, Tobacco, Firearms and Explosives.
“During the Trump administration, the bulk share ban emerged as a rather egregious example of illegitimate administrative power,” Philip Hamburger, founder of the New Civil Liberties Alliance, said in an email. “This rule turned half a million people into criminals overnight. That is not a power the Constitution gives to administrative agencies – so it deserved a lawsuit.”
In a letter to the court, Solicitor General Elizabeth B. Prelogar, arguing for the government, said overturning the ban “threatens significant harm to public safety.”
“Bump stocks are machine guns because they allow a shooter to ‘automatically fire more than one shot by a single function of the trigger,’” Ms. Prelogar wrote.
The case hinges on whether bump stocks convert semiautomatic rifles into machine guns.
The device hooks onto a rifle’s butt, the part of the rifle that is held against the shoulder, and uses the energy of the rifle’s recoil to bump the butt back and forth, allowing the weapon to fire faster.
The agency introduced the ban in 2018 by clarifying its interpretation of the National Firearms Act of 1934, which makes it a crime to make or possess a machine gun, and said this extended to the stockpiles. Under federal law, a machine gun is defined as “any weapon that fires, is designed to fire, or can be easily restored to fire more than one shot automatically, without manual reloading, by a single function of the trigger.”
The question is whether the ATF overstepped its bounds by issuing a ban without congressional action. A ruling against the agency could undermine its authority to regulate firearms and accessories.
The day before the ban took effect, Mr. Cargill walked into the ATF office in Austin, handed over two bump stocks and announced his lawsuit.
Mr. Cargill said he hoped gun owners would pay close attention, even though the case does not involve the Second Amendment.
“It doesn’t matter if you’re for or against gun rights,” he said. “An agency can’t do this.”
New Civil Liberties Alliance President Mark Chenoweth said the case joins other legal challenges from the group.
“ATF completely misinterprets existing law to reach this far-fetched result,” Mr. Chenoweth said in an email, “and it deviates from the interpretation it has upheld for more than a decade – including throughout the administration -Obama.”
Mr. Chenoweth declined to discuss the organization’s donors, but he said that group receives support from “a wide variety of donors.”
“NCLA is completely independent and is not part of any other organization, umbrella group or donor entity,” Mr. Chenoweth wrote.
Federal tax documents show that the group has received at least $1 million from the conservative Charles Koch Foundation. Mr. Chenoweth previously served as a legal reform consultant for Koch Industries.
The lead attorney in the case is Jonathan F. Mitchell, best known for drafting anti-abortion laws that ultimately led to the Supreme Court striking down the constitutional right to the procedure. Mr. Mitchell, who declined to comment, also recently argued on behalf of former President Donald J. Trump to challenge the Colorado Supreme Court’s decision to remove him from the state’s primary ballot.
The deadly potential of a bump stock, which sold for less than $200 when it first hit the market in 2010, came into surprising focus in October 2017.
That month, Stephen Paddock, 64, targeted thousands of concertgoers, firing more than 1,000 rounds of ammunition in about 11 minutes. It remains the deadliest mass shooting in modern American history. Investigators found about a dozen guns modified with bump stocks in his hotel suite.
The next day, Mr. Cargill’s store was sold out.
“Every time something happens, like a shooting or something like that, and people think the government is going to ban a certain item, people want to buy it,” Mr. Cargill said.
Unusual alliances emerged to support a ban on bump stocks, but there were signs from the start that this politically divisive issue could lead to trouble.
Lawmakers, including several leading Republicans, signaled openness to banning the device. Even the National Rifle Association endorsed stricter restrictions.
Spurred in part by mounting political pressure, Mr. Trump, an outspoken supporter of the Second Amendment, vowed to enact a ban.
In response, the Justice Department promised to review the legality of bump stocks, but ATF officials had privately indicated that a ban would likely require action from Congress, where bipartisan action has often stalled.
The ATF’s decision to ban the device amounted to a reversal, raising questions about the extent of its authority to regulate the accessory.
Mr Cargill was among those outraged by the ban, saying it would open the door to greater gun control.
“If you give the ATF an inch, they’ll take a mile,” Mr. Cargill said. “I was shocked that no one resisted. I said: something has to be done. You can’t just walk into people’s homes and take something they bought legally.”
Federal courts grappled with the legality of the ban and issued conflicting rulings. The division increases the likelihood that the Supreme Court will intervene.
After a federal judge in Texas sided with the government in Mr. Cargill’s case, he appealed to the U.S. Court of Appeals for the Fifth Circuit. Ultimately, the full court agreed with Mr. Cargill by 13 votes to 3, divided along ideological lines.
“A plain reading of the statutory language, combined with a close consideration of the mechanics of a semiautomatic firearm, shows that a bump stock is excluded from the technical definition of ‘machine gun’ as set forth in the Gun Control Act and the National Firearms Act ,” Judge Jennifer Walker Elrod wrote.
In response to concerns that “bump stocks contribute to gun deaths,” she added that “it is not our job to determine the public policy of our country.”
The three dissenting justices, all appointed by the Democratic party, argued that the majority’s reasoning served to “legalize an instrument of mass murder.”