On Wednesday, the Supreme Court will hear argument in Garland v. Cargill, a case that raises important questions about machineguns and reining in the administrative state. The National Firearms Act prohibits civilians from transferring or possessing machineguns, defined as firearms that shoot “automatically more than one shot . . . by a single function of the trigger.” By contrast, a semiautomatic rifle “requires a separate pull of the trigger to fire each cartridge.” At specific issue in this case is whether a bump stock device is a “machinegun.” After a mass shooting in Las Vegas, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published a ruling concluding that bump stocks are machineguns, but the Fifth Circuit, sitting en banc, held that the ATF rule was unlawful.
Bump stocks are devices that attach to semiautomatic rifles to allow them to fire at higher rates, but they require additional inputs in order to maintain fire. For years, ATF guidance maintained that firearms equipped with bump stocks are not machineguns because they require “continuous multiple inputs by the user for each successive shot” in order to operate. Fifteen separate letter rulings between 2008 and 2017 found that “non-mechanical” bump stocks did not fit the statutory definition of machineguns.
That changed after the 2017 mass shooting in Las Vegas. In 2018, President Donald Trump directed the Justice Department to ban bump stocks and similar devices, and the ATF followed suit with a ban. The agency’s about-face occurred without any change in the relevant statutory language or new technical analysis. Even Senator Dianne Feinstein, a staunch advocate of gun control, admitted at the time that the ATF rule rested on a “dubious analysis” making it vulnerable to challenges in court. Her point was that congressional legislation is required to restrict ownership. No such legislation followed. That the ATF’s about-face was brazenly political was underscored by the Justice Department’s announcement of the ban in conjunction with the inaugural March for Our Lives, a mass political mobilization that drew millions to pro–gun control demonstrations around the country.
By the agency’s own numbers at the time, Americans had purchased about 520,000 bump stocks since 2010. That means that hundreds of thousands of law-abiding Americans were branded as felons by administrative fiat. And penalties for unlawful possession of a machinegun are up to ten years in prison and a $250,000 fine.
To be clear, Cargill is not a Second Amendment case. Instead, it presents a significant issue at the intersection of administrative law and individual rights in the same term that Chevron deference is being challenged. Most of the justices are well aware of the arbitrariness inherent in agency flip-flops triggered not by the best reading of applicable statutes, but by political factors—often the change of administrations. Justice Neil Gorsuch recognized even before he was elevated to the Supreme Court from the Tenth Circuit that an agency cannot “reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.”
There is an additional concern where agency rules include criminal penalties. In 2014, Justice Antonin Scalia compared the problem with judicial deference in such cases to “King James I tr[ying] to create new crimes by royal command.” Judges at the time restrained the monarch, holding that “the King cannot create any offence by his prohibition or proclamation, which was not an offence before.” Even where there is statutory ambiguity, which is the trigger for Chevron deference, the rule of lenity requires judges to resolve it in favor of defendants.
This case is a reminder that if the Court does not dispose of Chevron deference this term, there will remain a recurring temptation for presidents and agency bureaucrats to defy the separation of powers in favor of arbitrary rule by fiat. The Court now has a chance to eliminate a tool for skirting legal boundaries, whether used to advance gun control or other policies, instituted by decree, that could not otherwise win congressional approval.