A Federal Court Thwarts the ATF’s Unconstitutional Power Grab

L ast week, an en banc panel of the Fifth Circuit Court of Appeals ruled that the executive branch of the federal government is not permitted to make up the law as it sees fit simply because public sentiment has been outraged by a tragedy. Thirteen judges joined the majority opinion, with three opposing them in dissent.

Superficially, the stakes of the case were concrete. It had a plaintiff: Michael Cargill. It had a couple of defendants: Merrick Garland, the attorney general, and Steven Dettelbach, the director of the ATF. And it had a live legal controversy: whether the ATF’s 2018 decision to ban bump stocks was consistent with either the 1934 National Firearms Act or the 1968 Gun Control Act. But, at its heart, the case was about the nature and the integrity of written law. In Michael Cargill v. Garland, et al., the Fifth Circuit upheld the notion that we write our laws down for a reason, and that, if we wish to alter the meaning of those laws, we must choose words other than the ones of which they are currently composed.

That the Fifth Circuit sided so completely with the plaintiffs should not have been a surprise. In 2018, during the presidency of Donald Trump, the ATF determined that non-mechanical bump stocks (which allow a shooter to pull the trigger of a semi-automatic weapon more quickly than he could with his finger alone) could be classified under federal laws as a “machinegun,” and be regulated accordingly. But, as the court’s majority noted, this determination was pulled out of thin air in response to widespread political pressure. “When ATF first considered the type of bump stocks at issue here,” the court observed, “it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.” As a matter of fact, the court recorded, before 2018 the agency had never concluded otherwise: “From the time ATF first considered non-mechanical bump stocks to 2017, it categorized that type of bump stock as not being a machinegun.”

And then, suddenly, it changed its mind, “subjecting anyone who possessed a bump stock to criminal liability.” Why? Well, because of the “tragic events that occurred in Las Vegas on October 1, 2017.” That’s why. Because, at the time the decision was made, “public pressure to ban bump stocks was tremendous.” Which, indeed, it was — but which was completely irrelevant to the material question at hand, which was whether or not such powers had been delegated to agencies such as the ATF by Congress. As anyone who has considered this issue for more than ten minutes will ineluctably comprehend, the entire purpose of writing laws down is to guarantee that, until those laws are changed by legislators, they remain in effect regardless of the transient passions of the mob. The law is the law, and it means what it means, even if there is “tremendous” public pressure to make it mean something else. If we want a government that is able to invent law on the fly in response to tragic events, we can abandon the Constitution and refashion the U.S. as a dictatorship. Until then, we must assiduously demand that all statutory alterations be achieved via the appropriate channels — which, in this case, are both houses of the United States Congress, followed by the president’s pen.

None of those channels were utilized by the ATF. The House passed nothing. The Senate passed nothing. The president signed nothing. Not a single line of law was amended. As the Fifth Circuit concluded, “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.” This was true before 2018. It was true in 2018. And yet the ATF still saw fit to disregard the plain text of the statute and, on the flimsiest of pretexts, appropriate to itself the lawmaking power that the Constitution grants solely to Congress.

Which, of course, is not how our system is supposed to work. Indeed, as the Fifth Circuit was at pains to note, even when ambiguities do exist in federal law — which was not the case in Michael Cargill v. Garland, et al., but often is in other cases — the courts are obliged to bias their interpretations in favor of the defendant and against the state. “Even if we are wrong” in our reading of the law, the ATF’s prior determinations confirm that “the statute is at least ambiguous,” the majority wrote. “And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.”

You know, like it says in Article I of the Constitution. You can look it up.