Washington, DC, Jan. 28, 2022 (GLOBE NEWSWIRE) — The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a motion for a rehearing en banc in the trial, Michael Cargill v. Merrick Garland, et al. NCLA is asking the full bench of the United States Court of Appeals for the Fifth Circuit to consider two questions: (1) whether a law’s definition of “machine guns” unambiguously includes bump stocks , and (2) if ambiguous, does the Chevron leniency or deference rule apply to the 2018 reinterpretation of the law passed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The Fifth Circuit panel’s previous ruling in this lawsuit conflicts with the ruling of each appellate court that has ruled on the issue, creating conflict between the circuits.

For more than a decade, the ATF determined that non-mechanical “bump stock” devices were not “machine guns”, and therefore their possession was not prohibited. In 2018, the agency reversed course, creating a new “bump stocks rule,” claiming that bump stocks are “machine guns” after all. He turned hundreds of thousands of mogul stock owners into criminals overnight and ordered law-abiding Americans to destroy or turn in their devices to the ATF or face ten years in prison. ATF admits the property loss will exceed $100 million.

The Fifth Circuit panel held that the protective stock rule’s interpretation of the statutory definition of “machine guns”—which the ATF has used to determine that protective stocks are machine guns—”is the best interpretation of the law”. The decision conflicts with rulings by at least three other federal appeals courts – the DC and Tenth Circuit and the US Navy-Marine Corps Court of Criminal Appeals. Additionally, the benched Sixth Homer was deadlocked 8-8 on the matter and therefore could not render a decision. The Navy-Marine Corps court ruled that the humpback stocks are not “machine guns”; he also ruled that even if the law were ambiguous, no deference would be warranted because the federal government has consistently and affirmatively waived any right to deference.

If the Court rules against ATF on the first of the two questions posed, it may have to consider the issue of deference. The Supreme Court has repeatedly held that deference is not warranted when the federal government affirmatively disavows it. He has also repeatedly rejected the view that the government’s interpretation of criminal law should be subject to deference. A conflict between the circuits existed even before the panel’s decision, and this decision only exacerbated the conflict. In light of this split, this lawsuit presents issues of exceptional importance that the Full Fifth Circuit should address, as the Full Sixth Circuit and Full Tenth Circuits have already done.

NCLA released the following statements:

“The panel’s decision in this case is out of step with the decisions of other appellate courts. The panel felt that “the best reading” of federal machine gun law is that bump stocks are “machine guns”. A total of 21 of the 27 judges from other federal appeals courts who have addressed the issue disagree with the ruling. A new en banc hearing is warranted to resolve this conflict. — Rich Samp, senior litigation attorney, NCLA

“The panel attempted to sidestep the Chevron leniency rule and deference issues inherent in this case by deciding – implausibly – that the ATF’s newly uncovered interpretation of a 35-year-old law is the “best reading” of the law. The full Fifth Circuit should not accept this over-smart approach to statutory interpretation. Congress has never banned bump stocks. Bills introduced in Congress to ban stocks Humpback stocks did not provide 10-year prison terms for the offense. Interpreting Humpback stocks as “machine guns” subject to that 10-year jail term mocks the leniency rule.” — Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information, visit the case page here.

ABOUT THE NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent jurist Philip Hamburger to protect constitutional liberties from infringement by the administrative state. NCLA’s public interest litigation and other pro bono advocacy works to tame the illegal power of state and federal agencies and foster a new civil liberties movement that will help restore the basic rights of Americans.

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Judy Pino New Civil Liberties Alliance 202-869-5218 [email protected]

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