Editor’s note: The author, Sheng Li, is a litigator for the New Civil Liberties Alliance (NCLA). The nonprofit group successfully challenged ATF’s ban on bump stocks. He explains the Cargill v. Garland decision and its implications for other instances of ATF overreach.

ATF’s Bump Stocks Ban Vacated, Undermining Similar Bans

In Orwell’s 1984, after years of war against Eurasia as Eastasia’s ally, Oceania abruptly switches sides, becoming Eurasia’s ally against Eastasia. Instead of articulating a policy change, the government simply rewrote history to declare that “Oceania had always been at war with Eastasia.” The modern Administrative State uses the same Orwellian tactic to rewrite the law. A chief example is ATF’s bump stock ban, which was finally vacated last week in Cargill v. Garland, after years of litigation.

Federal law generally makes it illegal for civilians to own machineguns, which Congress defined in a 1934 law to mean weapons that shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” During the Bush and Obama Administration, ATF maintained that bump stocks, which enable more rapid activation of the trigger, do not turn semi-automatic rifles into machineguns under this definition. But President Trump abruptly reversed course and directed ATF to reclassify bump stock equipped rifles as machineguns. In other words, conduct that had been legal for years—owning a bump stock—suddenly became a felony, without any change in law. ATF claimed that owning bump stocks had always been a crime under the 1934 law. That meant countless Americans who bought or sold them during the Bush and Obama Administrations, including Army veteran Michael Cargill, committed felonies.

Perhaps more troubling than ATF instantly transforming thousands of law-abiding citizens into felons, was that court after court blessed this retroactive rewriting of criminal law. In March 2023, the Fifth Circuit became the first court to strike down the bump stock ban, splitting with three circuits that upheld it. In affirming that the ban was unlawful, the Supreme Court issued a decision that made perfect sense to anyone who understood how bump stocks work and read the machinegun statute’s plain text. While bump stock increases the rate of fire, only one bullet is discharged “by a single function of the trigger.” Perhaps Congress should rewrite the law to include bump stocks in the definition of machineguns. But ATF may not “reinterpret” the law to do so.

The Supreme Court sent Cargill back to the trial court to decide the scope of relief. ATF wanted to limit relief to just Mr. Cargill, meaning only he would have the right to own bump stocks. The unlawful bump stock ban would stay on the books and each citizen would have to file separate lawsuits to be free from its reach. Fortunately, the trial court followed Fifth Circuit precedent and vacated ATF’s rule in its entirety.

The immediate impact of vacatur is nationwide relief for thousands of law-abiding citizens affected by the bump stock rule. Anyone in the country can own or transfer bump stocks without fear of criminal prosecution. And ATF must return confiscated bump stocks. Under the “takings clause” of the Fifth Amendment, owners may even press claims against ATF to recover lost value, especially if the agency destroyed their devices. Even if ATF returns the devices, the agency may still owe just compensation for depriving owners of their property for several years. The Federal Circuit held in 2021 that bump stock owners could not seek just compensation for their confiscated property because bump stocks were illegal machineguns. But that holding is no longer a good law after Cargill, which reopens the door to takings clause claims by bump stock owners.

Vacatur in Cargill also undermines ATF’s other attempts to rewrite the law, notably bans on forced reset triggers and pistol braces. The ban on forced reset triggers is a direct extension of the bump stock ban, which conflated a “function” of the trigger with a “pull.” Indeed, ATF’s letters banning forced reset triggers explicitly relied on the logic from the now vacated bump stock rule. The forced reset trigger case is being argued before the Fifth Circuit, the same court that first struck down the bump stock rule. ATF will have a hard time arguing around the Cargill precedent.

The pistol brace ban appears to be on the chopping block too. As with bump stocks, ATF previously said pistol braces were legal. But then it reversed course in 2023 and declared pistol braces to be illegal, again without any change in law. In sending a case back to determine whether the pistol brace ban should be enjoined, the Eighth Circuit recently explained: “The consequence of the ATF's about-face is that many individuals, relying on the ATF's previous classifications, were apparently committing felonies for years by possessing braced weapons.”

Allowing federal agencies to reinterpret old laws to have new meaning enables retroactive rewriting of the law that turns innocent conduct into crimes. As with historical facts, the meaning of unchanged statutory text must remain constant over time. Remember, no matter how hard the government insists, Oceania was not always at war with Eastasia.

— Sheng Li