The John Minor Wisdom Courthouse, New Orleans
Home of the 5th Circuit
The consequences of the Supreme Court majority's embrace of the right to go armed in public continue to play out. Last week a minister's claim that he has a First Amendment right to carry a pistol in on the pulpit was vindicated by a federal District Jduue in Rochester, NY. Now this decision from the entire 5th Circuit - a Court which led the fight to implement the promise of Brown v. Board of Education. the right to be armed seems to motivate that court now with the passion their predecessors - like John Minor Wisdom- once brought to eliminating racism in education root and branch. - GWC 1/9/23
5th Circuit, en banc, nixes bumpstock ban
Product Liability Law360 news-alt@law360.com
Law360 (January 6, 2023, 11:40 PM EST) -- The full Fifth Circuit on Friday struck down a Bureau of Alcohol, Tobacco, Firearms and Explosives' rule banning bump stocks, reversing a Texas federal court's decision and subsequent panel ruling upholding the rule following the appellate court's en banc review.
In a split 13-3 decision, the Fifth Circuit majority held that a bump stock doesn't qualify as a "machine gun" under federal law, and the ATF therefore lacked the authority to prohibit bump stocks.
The en banc ruling vacates a Fifth Circuit panel's December 2021 decision finding that the ATF was correct to interpret the definition of a machine gun to include bump stocks, as it was Congress' intent to address the rate of firearms, not the specific mechanism that allows for it.
On Friday, the Fifth Circuit majority sided with firearms instructor Michael Cargill, who challenged the 2019 ban in Texas federal court. In doing so, it held that a semi-automatic rifle equipped with a non-mechanical bump stock doesn't constitute a weapon that "shoots, is designated to shoot or can be readily restored to shoot, automatically, more than one shot … by a single function of the trigger," the court said Friday, citing the Gun Control Act of 1968's definition of a machine gun.
Specifically, the majority said that every shot fired by a bump stock-equipped semi-automatic rifle requires a separate function of the trigger. And that means that it can't be interpreted as a machine gun under the statute prohibiting them.
Writing for the majority, U.S. Circuit Judge Jennifer Walker Elrod said that, in defining a "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 for purposes of the Gun Control Act and National Firearms Act."
She added that she cannot say the National Firearms Act and Gun Control Act "give fair warning that possession of a non-mechanical bump stock is a crime."
"Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the final rule is good public policy," Judge Elrod said. "We express no opinion on those arguments because it is not our job to determine our nation's public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it."
Ultimately, the bump stock ban violates the Administrative Procedure Act, according to the decision. The Fifth Circuit remanded the case to the district court to determine "the proper scope of relief," which could be injunctive, declarative "or otherwise."
In his dissent, U.S. Circuit Judge Stephen A. Higginson — joined by U.S. Circuit Judges James L. Dennis and James E. Graves Jr. — said a bump stock should indeed be a machine gun within the meaning of the law. In particular, Judge Higginson said he disagreed with the majority's use of lenity to "rewrite this statute."
Under the rule of lenity, an ambiguous law must be applied in a manner that is most favorable to the defendant or construe it against the state. Judge Higginson said the U.S. Supreme Court has repeatedly instructed that the rule of lenity only applies if there's a "grievous ambiguity or uncertainty in the statute" to the point that a court must "simply guess" as to what Congress intended. It is intended to only be deployed as a "last resort," the judge said.
"Today, our court extends lenity, once a rule of last resort, to rewrite a vital public safety statute banning machine guns," Judge Higginson said.
He noted that the bump stock is a "device that helped the Las Vegas shooter fire over 1,000 rounds during an 11-minute long attack, at times shooting about nine bullets per second, killing at least 58 people and wounding hundreds more."
"Therefore, our court uses lenity to legalize an instrument of mass murder," Judge Higginson said.
U.S. Circuit Judge Catharina Haynes penned a short concurrence, which Chief Judge Priscilla Richman joined, writing, "I concur in judgment only because I reluctantly conclude that the relevant statute is so ambiguous such that the rule of lenity favors the citizen in this case."
On top of that, Judge Richman joined another concurrence written by U.S. Circuit Judge James C. Ho. In that concurrence, which was also joined by U.S. Circuit Judge Leslie H. Southwick, Judge Ho wrote that it is not enough to conclude that a criminal statute should cover a particular act.
"The statute must clearly and unambiguously cover the act," he said.
He likened the bump stock issue to designer drugs, which he said don't fit within the definitions established by the Controlled Substances Act but are just as lethal. The same policy justifications for banning scheduled drugs readily applied to designer drugs, he said.
"Yet all three branches agreed that existing law did not ban designer drugs," Judge Ho said.
The New Civil Liberties Alliance, which represents Cargill in the case, said in a statement Friday that it is pleased that a circuit court has recognized "that Congress must be the one to pass any bump stock ban."
"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," the NCLA said.
ATF declined to comment late Friday.
Several other federal appeals courts have upheld the ATF's 2019 ban, including the Tenth Circuit, which declined to hold an en banc rehearing in March 2021 after affirming a decision in a similar suit in May 2020.
The ATF's ban was proposed in the wake of the deadly October 2017 shooting at the Mandalay Bay hotel in Las Vegas, where the shooter used a bump stock to rapidly fire his rifle. The ban took effect March 2019.
Cargill claimed in his suit that the ATF exceeded its authority, arguing that the ban goes against the plain language of the National Firearms Act. That law prohibits the possession of machine guns.
The district court tossed his suit, but Cargill appealed, arguing that the National Firearms Act's definition of machine guns as weapons that shoot "more than one shot … by a single function of the trigger" excludes bump stocks. Bump stocks use the gun's recoil to quickly effect multiple trigger pulls, Cargill said.
A three-judge Fifth Circuit panel disagreed with Cargill, but a majority of Fifth Circuit judges voted to grant an en banc rehearing in June 2022.
Cargill is represented by Richard Samp and Mark Chenoweth of the New Civil Liberties Alliance.
The government is represented by Brian M. Boynton, Ashley C. Hoff, Mark B. Stern, Michael Raab, Abby C. Wright, Brad Hinshelwood and Kyle T. Edwards of the U.S. Department of Justice.
The case is Cargill v. Garland et al., case number 20-51016, in the U.S. Court of Appeals for the Fifth Circuit.
–Additional reporting by Mike Curley. Editing by Michael Watanabe.
In a split 13-3 decision, the Fifth Circuit majority held that a bump stock doesn't qualify as a "machine gun" under federal law, and the ATF therefore lacked the authority to prohibit bump stocks.
The en banc ruling vacates a Fifth Circuit panel's December 2021 decision finding that the ATF was correct to interpret the definition of a machine gun to include bump stocks, as it was Congress' intent to address the rate of firearms, not the specific mechanism that allows for it.
On Friday, the Fifth Circuit majority sided with firearms instructor Michael Cargill, who challenged the 2019 ban in Texas federal court. In doing so, it held that a semi-automatic rifle equipped with a non-mechanical bump stock doesn't constitute a weapon that "shoots, is designated to shoot or can be readily restored to shoot, automatically, more than one shot … by a single function of the trigger," the court said Friday, citing the Gun Control Act of 1968's definition of a machine gun.
Specifically, the majority said that every shot fired by a bump stock-equipped semi-automatic rifle requires a separate function of the trigger. And that means that it can't be interpreted as a machine gun under the statute prohibiting them.
Writing for the majority, U.S. Circuit Judge Jennifer Walker Elrod said that, in defining a "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 for purposes of the Gun Control Act and National Firearms Act."
She added that she cannot say the National Firearms Act and Gun Control Act "give fair warning that possession of a non-mechanical bump stock is a crime."
"Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the final rule is good public policy," Judge Elrod said. "We express no opinion on those arguments because it is not our job to determine our nation's public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it."
Ultimately, the bump stock ban violates the Administrative Procedure Act, according to the decision. The Fifth Circuit remanded the case to the district court to determine "the proper scope of relief," which could be injunctive, declarative "or otherwise."
In his dissent, U.S. Circuit Judge Stephen A. Higginson — joined by U.S. Circuit Judges James L. Dennis and James E. Graves Jr. — said a bump stock should indeed be a machine gun within the meaning of the law. In particular, Judge Higginson said he disagreed with the majority's use of lenity to "rewrite this statute."
Under the rule of lenity, an ambiguous law must be applied in a manner that is most favorable to the defendant or construe it against the state. Judge Higginson said the U.S. Supreme Court has repeatedly instructed that the rule of lenity only applies if there's a "grievous ambiguity or uncertainty in the statute" to the point that a court must "simply guess" as to what Congress intended. It is intended to only be deployed as a "last resort," the judge said.
"Today, our court extends lenity, once a rule of last resort, to rewrite a vital public safety statute banning machine guns," Judge Higginson said.
He noted that the bump stock is a "device that helped the Las Vegas shooter fire over 1,000 rounds during an 11-minute long attack, at times shooting about nine bullets per second, killing at least 58 people and wounding hundreds more."
"Therefore, our court uses lenity to legalize an instrument of mass murder," Judge Higginson said.
U.S. Circuit Judge Catharina Haynes penned a short concurrence, which Chief Judge Priscilla Richman joined, writing, "I concur in judgment only because I reluctantly conclude that the relevant statute is so ambiguous such that the rule of lenity favors the citizen in this case."
On top of that, Judge Richman joined another concurrence written by U.S. Circuit Judge James C. Ho. In that concurrence, which was also joined by U.S. Circuit Judge Leslie H. Southwick, Judge Ho wrote that it is not enough to conclude that a criminal statute should cover a particular act.
"The statute must clearly and unambiguously cover the act," he said.
He likened the bump stock issue to designer drugs, which he said don't fit within the definitions established by the Controlled Substances Act but are just as lethal. The same policy justifications for banning scheduled drugs readily applied to designer drugs, he said.
"Yet all three branches agreed that existing law did not ban designer drugs," Judge Ho said.
The New Civil Liberties Alliance, which represents Cargill in the case, said in a statement Friday that it is pleased that a circuit court has recognized "that Congress must be the one to pass any bump stock ban."
"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," the NCLA said.
ATF declined to comment late Friday.
Several other federal appeals courts have upheld the ATF's 2019 ban, including the Tenth Circuit, which declined to hold an en banc rehearing in March 2021 after affirming a decision in a similar suit in May 2020.
The ATF's ban was proposed in the wake of the deadly October 2017 shooting at the Mandalay Bay hotel in Las Vegas, where the shooter used a bump stock to rapidly fire his rifle. The ban took effect March 2019.
Cargill claimed in his suit that the ATF exceeded its authority, arguing that the ban goes against the plain language of the National Firearms Act. That law prohibits the possession of machine guns.
The district court tossed his suit, but Cargill appealed, arguing that the National Firearms Act's definition of machine guns as weapons that shoot "more than one shot … by a single function of the trigger" excludes bump stocks. Bump stocks use the gun's recoil to quickly effect multiple trigger pulls, Cargill said.
A three-judge Fifth Circuit panel disagreed with Cargill, but a majority of Fifth Circuit judges voted to grant an en banc rehearing in June 2022.
Cargill is represented by Richard Samp and Mark Chenoweth of the New Civil Liberties Alliance.
The government is represented by Brian M. Boynton, Ashley C. Hoff, Mark B. Stern, Michael Raab, Abby C. Wright, Brad Hinshelwood and Kyle T. Edwards of the U.S. Department of Justice.
The case is Cargill v. Garland et al., case number 20-51016, in the U.S. Court of Appeals for the Fifth Circuit.
–Additional reporting by Mike Curley. Editing by Michael Watanabe.
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