Federal Courts Divided as U.S. 5th Circuit Strikes Ban on Gun Bump Stocks

• The U.S. 5th Circuit reversed a 5th Circuit panel decision that upheld a federal regulation banning bump stocks.
• The en banc decision sets up a circuit split with the 6th, 10th and D.C. Circuits.
• The circuit judges dissented, arguing the court's decision creates a more liberal rule of strict construction for gun owners not intended by the U.S. Supreme Court.

The U.S. Court of Appeals for the Fifth Circuit struck down the federal agency ban on bump stocks, claiming only Congress may ban the device used by a mass murderer in Las Vegas.

The en banc decision reverses a Fifth Circuit panel decision that favored the Bureau of Alcohol, Tobacco, Firearms and Explosives—and creates a split with the Sixth Circuit in Cincinnati, the Tenth Circuit in Denver and the D.C. Circuit in Washington, D.C.

Dissent

The opinion was not unanimous, with one circuit judge writing a dissent that was joined by two other judges.

Circuit Judge Stephen A. Higginson’s dissent argued the bump stock is a machine gun within the meaning of the federal statute.


“The Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations. Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity,” Higginson said.
​
“In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law,” Higginson said.

What Is a Machine Gun?

The legal team behind the federal regulation challenge, Michael Cargill v. Merrick B. Garland, was New Civil Liberties Alliance.

NCLA argued that the Final Rule conflicts with the statutory definition of a machine gun, and therefore exceeds Bureau of Alcohol, Tobacco, Firearms and Explosives’ authority; the ATFE’s legal interpretation is not entitled to executive agency deference; to the extent courts determine the definition of machine gun is ambiguous, they should apply the rule of lenity to determine that bump stocks are not machine guns; and if the statute were interpreted as authorizing an ATFE prohibition, then the statute would be an unconstitutional delegation of Congress’s legislative powers.

Writing for the majority, Judge Jennifer Walker Elrod stated, “In defining the term machine gun, Congress referred to the mechanism by which the gun’s trigger causes bullets to be fired. Policy judgments aside, we are bound to apply that mechanical definition. And applying that definition to a semi-automatic rifle equipped with a non-mechanical bump stock, we conclude that such a weapon is not a machine gun.”

NCLA president and general counsel Mark Chenoweth, in a prepared statement, said, “The resulting circuit split should bring this decision to the U.S. Supreme Court’s attention promptly, and supply a suitable vehicle for deciding this issue once and for all.”

Change in Direction

The Bureau of Alcohol, Tobacco, Firearms and Explosives’ defense was substantially weakened by the fact that for a decade it claimed that bump stocks on semiautomatic weapons did not meet the mechanical definition of a machine gun. It only changed its position after the 2017 mass shooting in Las Vegas where a lone gunman used the guns to kill 58 people and wound hundreds more.

Circuit Judge James C. Ho wrote a concurrence, joined by two circuit judges, in which he acknowledged that bump stocks have the effect of allowing semiautomatic weapons to mimic automatic machine guns.

Ho suggested that Congress follow the path it took with designer drugs that, during the 1980s, were constantly being chemically redesigned to get around federal controlled substance laws.

“Congress could not ban designer drugs without passing the Analogue Act,” Ho said. “Likewise, Congress cannot criminalize bump stocks absent a clear and unambiguous statute.”

Responding to Ho’s example, Higginson argued that would not work, either, since, “Under our court’s new lenity regime, it is unclear how Congress could draft such a statute while avoiding ambiguity as to what counts as a bump stock.”

In fact, Higginson wrote, after the court’s en banc ruling, it isn’t clear the Controlled Substance Analogue Enforcement Act of 1986 is now operable in practice since it also depends on a “substantially similar” to a controlled substance chemical definition.