The 5th Circuit Says the ATF Exceeded Its Legal Authority When It Banned Bump Stocks

The U.S. Court of Appeals for the 5th Circuit on Friday concluded that the Trump administration exceeded its legal authority when it criminalized the sale and possession of bump stocks in 2018. While the details of the 5th Circuit’s decision in Cargill v. Garland might seem arcane, at bottom it upholds the separation of powers and the rule of law. The question posed by the case is not whether prohibiting bump stocks makes sense but who has the power to make that call: the legislative branch or an administrative agency that reinterpreted the law to ban products it had previously deemed legal.

Bump stocks facilitate a rapid-firing technique in which the shooter maintains forward pressure on a semi-automatic rifle, which pushes the trigger against a stationary finger. Recoil energy then propels the rifle backward, resetting the trigger, which is repeatedly activated as long as the shooter keeps his finger in place and continues to push the weapon forward. Bump stocks were of little interest to anyone aside from manufacturers, firearm aficionados, and bureaucrats until October 2017, when a gunman used them in an attack that killed 60 people in Las Vegas.

After that massacre, the 5th Circuit notes, “public pressure to ban bump stocks was tremendous,” prompting two bills aimed at doing so. But then-President Donald Trump said new legislation was not necessary because the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) could impose a ban by administrative fiat. That maneuver involved classifying rifles equipped with bump stocks as machine guns, which federal law defines as weapons that “automatically” fire more than one round “by a single function of the trigger.” The definition also covers parts that convert a firearm into a machine gun.

The problem for the ATF was that a rifle equipped with a bump stock, which typically includes a slide that makes it easier for the weapon to move back and forth, does not meet that definition. Such a rifle does not fire “automatically,” and it still fires just one round each time the trigger is activated. As the 5th Circuit notes, the ATF had for years conceded as much, telling manufacturers that bump stocks were legal as long as they were not “equipped with springs or other internal mechanical devices that automatically assist the shooter to engage in bump firing.” The ATF took that position for more than a decade, issuing dozens of advisory letters to that effect.

After Trump demanded a ban, the ATF suddenly decided that “non-mechanical” bump stocks were illegal after all. A rule it proposed in March 2018 redefined “automatically” to include the human actions necessary to maintain bump fire: keeping the trigger finger in position while pushing the rifle forward. The ATF also redefined “a single function of the trigger” as a single pull of the trigger, which it defined to exclude bumping the trigger against a stationary finger.

Sen. Dianne Feinstein (D–Calif.), one of the legislators who wanted Congress to ban bump stocks, warned that the ATF’s startling reversal was bound to provoke legal challenges:

Until today, the ATF has consistently stated that bump stocks could not be banned through regulation because they do not fall under the legal definition of a machine gun.

Now, the department has done an about face, claiming that bump stocks do fall under the legal definition of a machine gun and it can ban them through regulations. The fact that ATF said as recently as April 2017 that it lacks this authority gives the gun lobby and its allies even more reason to file a lawsuit to block the regulations.

Unbelievably, the regulation hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it. The gun lobby and manufacturers will have a field day with this reasoning….

Both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks. The law has not changed since 1986, and it must be amended to cover bump stocks and other dangerous devices like trigger cranks. Our bill does this—the regulation does not.

Although Feinstein rightly described the ATF’s new reading of the law as “unbelievabl[e],” several feder