Fifth Circuit Court: A Bump Stock Is Not a ‘Machine Gun’

On Friday, the U.S. Court of Appeals for the Fifth Circuit struck down the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) bump stock ban, noting that a bump stock is not a “machine gun.”

Breitbart News reported the ATF’s finalized ban language on December 18, 2018, at which time the agency was giving bump stock owners 90 days to hand the firearm accessories over. After 90 days, people in possession of the accessories would be committing a crime.

Breitbart News had a copy of the Department of Justice’s summary of the ban at the time.

It stated:

The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices — meaning “bump fire” stocks, slide-fire devices, and devices with certain similar characteristics — are “machineguns” as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

On January 6, 2022, the Fifth Circuit handed down a 13-3 decision against the ATF’s bump stock ban.

Judge Jennifer Walker Elrod wrote the majority opinion, noting a focused push to ban bump stocks following the October 1, 2017, Las Vegas attack. Bump stocks were used on some of the numerous firearms possessed by the Las Vegas attacker.

Elrod wrote:

Public pressure to ban bump stocks was tremendous. Multiple bills to that effect were introduced in both houses of Congress. But before they could be considered in earnest, ATF published the regulation at issue here, short circuiting the legislative process. Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation at issue. He now challenges the legality of that regulation, arguing that a bump stock does not fall within the definition of “machinegun” as set forth in federal law, and thus that ATF lacked the authority to issue a regulation purporting to define the term as such.

Elrod continued, “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 “machinegun” set forth in the Gun Control Act and National Firearms Act.”

Additionally, Elrod explained that the court’s majority found the ATF’s bump stock ban violated the “rule of lenity” by imposing criminal liability on people who had legally purchased a product against which there was no law.

Elrod wrote:

A rich legal tradition supports the “well known rule” that “penal laws are to be construed strictly”…(United States v. Wiltberger). As Chief Justice Marshall explained long ago, the rule “is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”

The Fifth Circuit’s decision can be appealed to the Supreme Court of the United States. At this time, no indication has been given as to whether or not an appeal will be filed.

The Fifth Circuit’s application of the “rule of lenity” could come into play in lawsuits against an anticipated ATF ban on stabilizer braces for AR pistols. It is presumed that the ATF’s stabilizer brace ban will give owners a set amount of time to turn them in, after which time those who continue to possess them will be committing a crime.

The case is Cargill v. Garland, No. 20-51016, in the U.S. Court of Appeals for the Fifth Circuit.

AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio and a Turning Point USA Ambassador. AWR Hawkins holds a PhD in Military History, with a focus on the Vietnam War (brown water navy), U.S. Navy since Inception, the Civil War, and Early Modern Europe. Follow him on Instagram: @awr_hawkins. You can sign up to get Down Range at breitbart.com/downrange. Reach him directly at awrhawkins@breitbart.com.