WASHINGTON, D.C. (June 18, 2019) — Today, the Cato Institute and Firearms Policy Coalition announced their filing of an important amicus brief in the appeal of Aposhian v. Barr, a case challenging the federal bump-stock ban, at the 10th Circuit Court of Appeals. The brief may be viewed at www.firearmspolicy.org/legal and https://www.cato.org/blog/again-pointing-out-executive-power-abuses-new-bump-stock-ban.

Cato and FPC argue in the brief that President Trump’s executive order banning bump stocks was arbitrary, capricious, and unconstitutional. As the court filing explains in detail, the Trump Administration disregarded the statutory definition of ‘machinegun’, a term used in both the National Firearms Act of 1934 (NFA) and Gun Control Act of 1968 (GCA), in order to comply with a presidential mandate to re-classify legal “bump-stock-type devices” as illegal automatic weapons. Further, the brief argued the ATF’s reversal on what constitutes an automatic weapon was based on political expediency and not statutory ambiguity.

What’s more, they argued, the bump-stock ban expands the ATF’s authority to bring more firearms into the NFA’s purview, placing an un-knowable number of gun owners in criminal peril.

“In effect, there is now a Damoclean sword over law-abiding Americans,” explained Cato and FPC in the brief. “What was legal yesterday can be illegal tomorrow.” In other words, this case extends far beyond just bump stocks, and has the potential to affect the future legality of just about anything protected by the Second Amendment.

“Despite having countless opportunities to do so in multiple cases, the government has failed to provide a competent defense of their rule making,” explained Cato’s Matthew Larosiere. “The idea of an unelected bureaucrat deciding what can and cannot land you in federal prison ought to give anyone pause, regardless of how you feel about bump stocks. We hope the Tenth Circuit calls the government on its casual disregard for the Constitution and reigns in this alarming expansion of the administrative state.”

“The ATF had no authority to arbitrarily re-interpret the machinegun statute to achieve the President’s desired policy outcome,” said FPC President Brandon Combs. “Worse, the government’s position that it is ‘ending its exercise of discretion’ means that they believe they can not only reclassify guns and accessories, but they can put people in prison whenever they do so. That is as egregiously wrong as it is dangerous. FPC has been and remains staunchly committed to fighting the unconstitutional expansion of gun control laws by fiat.”

Cato participated in the rulemaking process by filing a comment in opposition at the NPRM stage, and has filed briefs on the issue at the D.C. Circuit and now in the 10th Circuit. FPC participated in all phases of the bump-stock regulatory process, including at the ANPRM phase, submitting a comment in opposition, and at the NPRM phase, commissioning significant specialized research and filing a comment in opposition with 35 exhibits, including one video of a bump-stock device in use. FPC was a party to the first lawsuit, Guedes, et al. v. BATFE, et al., and is the sole plaintiff in the related case Firearms Policy Coalition, Inc. v. Barr, et al. More information on those cases can be found at www.bumpstockcase.com.

Before the tragic mass shooting in Las Vegas, almost nobody in the United States had ever heard of a “bump stock.” What was, and always has been, a gun-range novelty was suddenly the subject of national discussion. In the months following the tragedy, Congress considered and ultimately rejected a law banning these devices. Eager to seize political capital, however, the Trump administration sought to ban them anyway.

The administration faced one problem, though: the Constitution. As anyone who’s seen School House Rock can tell you, only Congress can write new laws. Never to let something like a written constitution get in their way, the administration tried to make new law by “reinterpreting” an existing law: the National Firearms Act of 1934 (NFA), which heavily regulates “machineguns.”

For decades, Congress, the executive branch, and the people shared a common understanding: the definition of “machinegun” in the NFA was clear, applying only to weapons that fired continuously from a single function. Be it with a button, a lever, or a traditional trigger, a “machinegun” fires continuously upon the performance of a single function. Bump stocks, which require substantial and continuous user input to fire, had never been considered “machineguns.” President Trump announced that his administration was changing course. The president expressly declined to go through Congress, instead directing officials to redefine bump-stock devices as “machineguns.” In turn, the Bureau of Alcohol, Tobacco, and Firearms (ATF) broke from decades of precedent and granted itself a new power to ban a widely owned firearm accessory.

This expansion of regulatory authority, motivated by political expediency, cannot stand. Whether one agrees that bump stocks should be regulated or not, this change is about far more than bump stocks. ATF has asserted the complete authority to ban any new class of weapons that were never covered by the 1934 law. This approach impermissibly expands the executive branch’s power to rewrite criminal laws and the casual approach to ignoring the Constitution would certainly not stop with the ATF if allowed to stand.

The new rule, making felons of an unknowable number of Americans, took effect on March 26, 2019. Gun owners and advocacy groups filed lawsuits in several federal districts, including one that ended up in the U.S. Court of Appeals for D.C. Circuit in which Cato also filed.

Another case is now before the U.S. Court of Appeals for the Tenth Circuit. It was brought by the New Civil Liberties Alliance on behalf of Clark Aposhian, who lawfully purchased a bump stock. Our brief here addresses issues that no other amicus discusses: that the executive branch cannot use the administrative process to accomplish legislative goals that Congress declined to enact.

The implications of this case extend far beyond bump stocks. Regardless of what public opinion is at this moment, the law means what it says. The executive branch has the power to interpret existing law, not create new ones. The administration argues, essentially, that the clear political motive here doesn’t matter, and that nothing prevents them from inventing their own definitions of the terms that define a “machinegun.” That simply isn’t the case. Administrative interpretations are supposed to do just that—interpret existing law—not give new meaning to an old one.

If the government really wants to regulate bump stocks, it needs to do so by passing a new law, not by assigning new meaning to an old one. The Founders weren’t short-sighted; there’s a reason laws that affect the entire nation have to come through Congress, not through politically motivated bureaucratic reimagination.

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