Tomorrow, February 28, the Supreme Court will hear oral arguments Garland vs. Cargill; the case challenges the administrative ban on bump stocks imposed by the Trump and Biden administrations, through interpretation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). The Supreme Court record is here.
I co-authored an amicus brief on the case. The brief is on behalf of 9 U.S. Senators, led by Cynthia Lummis (R-Wyo.), 10 law/history professors, and the Independence Institute (the Denver think tank where I work).
Garland vs. Cargill vs it is not a Second Amendment challenge. The case involves administrative law: Is BATFE’s new interpretation of the relevant federal law (the National Firearms Act of 1934) correct?
Despite the procedural stance, some gun ban supporters have sent frantic emails to potential donors, warning that if Cargill prevails, all bump stock laws enacted by state and local governments will be nullified. This is false. Assuming that state and local laws have been enacted according to proper procedures by state legislatures or city councils, a decision in favor of Mr. Cargill would have no effect on such laws.
Gun rights appear in the case only implicitly, as explained in an excellent brief by the Second Amendment Law Center and other civil rights organizations: If BATFE in Cargill If it can get away with an egregious interpretation of the National Firearms Act, BATFE’s next step may be to declare all semi-automatic firearms to be “machine guns.”
There are two main issues in Cargill vs. Garland: first, the principles of regulatory interpretation. Secondly, the interpretation of the controversial provision. The senators’ amicus brief addresses both.
On interpretive principles, Senators are, not surprisingly, very supportive of Article I of the Constitution, especially as it relates to federal criminal laws. Because criminal laws are so important, they should be clearly authorized by Congress and clearly written so that citizens can comply with them.
In two other cases this term, the Supreme Court is currently considering what to do with the Chevron doctrine. (Loper Bright Enterprises vs. Raimondo; Relentless, Inc. v. Department of Commerce.) As applied by lower courts, this doctrine holds that any reasonable interpretation by an executive branch of an ambiguous statute is legitimate. The Senators argue that even if the Court decides to maintain it Chevron for some issues, such as corporate regulation, Chevron it should not be applied to criminal law. Citizens should not be held criminally responsible for changing at the whims of regulatory agencies; in this case, for example, the BATFE has established 10 times to impose the bumping of stock devices like the ones in question Cargill they are not machine guns. Subsequently, on the orders of the President, the BATFE adopted a completely contrary and innovative interpretation.
Before the Supreme Court, the Attorney General does not avail himself Chevron deference. However, BATFE has invoked Chevron deference in announcing its new anti-precedence interpretation, and several lower courts in other circuits have upheld the new interpretation based on Chevron.
A second rule of interpretation is the Rule of Lenity: in criminal law, an ambiguous law should be interpreted against the government. As senators argue, Congress has a duty to write clear laws, and enforcement of the Rule of Slowness provides an incentive to do so.
According to the senators’ amicus brief, once all the normal rules of statutory interpretation have been applied, if the provision is still ambiguous, the Leniency Rule prevails.
However, some (not all) Supreme Court precedents suggest that the Leniency Rule applies only in cases of “serious” ambiguity. The amicus brief argues that the traditional standard (any reasonable doubt about statutory meaning) is best rooted in the Anglo-American legal tradition, starting with the Foundation’s universally accepted principle that criminal laws should be interpreted narrowly.
The Supreme Court followed this approach in a 1992 case involving the same section of the U.S. Code at issue Cargill, 26 USC sec. 5845. See United States v. Thompson/Center Arms Co., 504US 505 (1992). There, the plurality (Justice Souter) and concurrence (Justice Scalia) both applied the standard rules of statutory interpretation, found that the statutory subsection was still ambiguous, and then immediately applied the leniency rule, without considering whether the the ambiguity was “serious”.
Regarding the regulatory language in question in Cargill, the National Firearms Act defines a “machine gun” as a firearm that “automatically fires more than one shot…by a single trigger function.” 26 USC § 5845(b). Subsequently, the Firearms Owners’ Protection Act of 1986 prohibited the acquisition of new machine guns (manufactured after May 19, 1986) by persons other than government employees and also treated machine gun conversion kits the same as machine guns.
A bump stock does not fall within the statutory definition. A bump stock device makes a firearm work much faster; like a machine gun, a regular bump stock pistol can fire about four times faster than a regular semi-automatic. However, a bump stock weapon still fires only one shot per “function” of the trigger.
The Attorney General and his friends have long argued that “single trigger pull” should be interpreted to mean “single trigger pull.” But, evidently, this is not what the statute says. If Congress had enacted a statute that provided for “single pull” instead, then the statute would have exempted World War I-era Maxim and Vickers machine guns, whose trigger is depressed rather than depressed.
As a fallback, the attorney general and friends argue that Congress intended the National Firearms Act to apply to all rapid-fire weapons. But this is clearly not true. The Gatling gun, first patented in 1861, could fire 300 rounds per minute, and by 1880 it could fire 1,200 per minute. It is undisputed that the National Firearms Act does not apply to traditional Gatling guns, which are operated by a hand crank. (Electric Gatling guns are another matter.) The BATFE has spoken this way twice.
Notably, neither the Attorney General nor his friends address the contradiction between their statements about what they want the NFA to mean versus the undisputed fact that rapid-firing Gatling guns are not covered by the NFA. If Congress in 1934 had wanted to limit firearms that have a higher than specified rate of fire, Congress could have enacted a statute to that effect. Given the words of the statute that Congress actually enacted, Cargill vs. Garland it should be an easy case.