The U.S. 5th Circuit Court of Appeals has agreed to a rare en banc hearing of a challenge to the Trump administration's arbitrary and controversial federal ban on bump stocks.

In the case of Cargill v. Garland, a unanimous three-judge panel of the 5th Circuit last October upheld the ATF's 2018 bump-stock rule’s re-interpretation of the statutory definition of "machineguns" to classify bump stocks as illegal NFA-regulated devices, saying it was "the best interpretation of the statute." The three judges on the panel – James Dennis, Stephen Higginson, and Gregg Costa – had been appointed by either President Clinton or Obama. 

However, of the 17 active judges on the Circuit, 12 were appointed by Republican presidents including six by Trump, and the case is now headed to review by the whole Circuit. Typically, if an appellate court votes to rehear a case en banc, it is likely because the case is of some importance and court watchers generally see such proceedings as the court wanting another bite at the issue. Of note, the 5th Circuit only granted eight out of 186 en banc petitions in 2021. 

The plaintiff, Michael Cargill, in compliance with the ATF mandate, surrendered two bump stocks to the agency. He then sued the federal government under various constitutional provisions, seeking a permanent injunction against enforcement of the ban and return of his property. His requests were rejected by a lower court, and that rejection was upheld last year by the three-judge panel of the 5th Circuit, bringing him now to his continued en banc appeal. 

Cargill is allied with the New Civil Liberties Alliance, and Rich Samp, the group's senior litigation counsel, said "We are gratified that the en banc Fifth Circuit has agreed to step in and take a second look at the panel’s rubberstamping of the ATF’s decision."

According to the group and court documents, the en banc court will consider two issues of exceptional importance: (1) does the statute’s definition of "machineguns" unambiguously include bump stocks, and (2) if the statute is ambiguous, is ATF’s construction entitled to Chevron deference, or does the rule of lenity require interpreting any ambiguity in this statute that has criminal applications in Mr. Cargill’s favor?

The case is calendared for oral argument in a New Orleans federal court on Sept. 12. 

NCLA also has a similar bump stock challenge – Aposhian v. Garland – pending at the U.S. Supreme Court. Meanwhile, other cases are also in the pipeline. 

Last March, a three-judge panel of the U.S. 6th Circuit Court of Appeals held that the ATF – part of the executive branch of government – enforces laws rather than makes them, with that authority reserved for the people acting through their elected representatives in Congress.

"Congress could amend the statute tomorrow to criminalize bump-stock ownership, if it so wished," said Judge Alice Batchelder in the 6th Circuit's 2021 ruling on a bump stock challenge brought by Gun Owners of America. "But as judges, we cannot amend [the statute]. And neither can ATF. This is because the separation of powers requires that any legislation pass through the legislature, no matter how well-intentioned or widely supported the policy might be."

Banner photo: Slide Fire Solutions.

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