May 28, 2023

CINCINNATI, Ohio – A three-judge panel for the Sixth Circuit Court of Appeals ruled against the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) bump stock rule in Hardin v. ATF.

The case centers around a rule made by the ATFs at the urging of then-President Donald Trump after the 2017 tragic attack on country music concertgoers in Las Vegas. The rule reclassified bump stocks as machineguns. The new rule was an about-face by the ATF, which held for years that bump stocks were not machineguns. Initially, the ATF claimed that bump stocks were not machineguns because the user pulls the trigger each time the firearm fires.

The rule change caused multiple challenges to be filed against the ATF in federal court in various circuits. The Tenth Circuit and DC Circuit Court ruled in favor of the ATF’s bump stock rule. A previous Sixth Circuit case split 8-8 on a legal challenge to the Bureau’s regulation. Because of the tie, the District Court’s decision stood, which ruled in favor of the federal government.

The most recent case to be decided is Cargill v. Garland out of the Fifth Circuit Court of Appeals. The full bench ruled by a margin of 13-3 that the ATF violated the Administrative Procedures Act (APA) by overstepping its powers. The court also said the rule violated the rule of lenity. The rule of lenity states that when a criminal statute is unambiguous or unclear, the law must be interpreted in favor of the defense. The Court remanded the case back down to the District Court to rule in favor of Michael Cargill and issue appropriate relief. The District Court ruled for Cargill but did not issue any relief. The Federal government would petition the United States Supreme Court to hear the case, and the District Judge would stay the decision until SCOTUS decides if it will take the case.

The Sixth Circuit Court did not rule on a violation of the APA in Hardin. The court did rule that the ATF’s bump stock rule did violate the rule of lenity. The court remanded the case back to the District Court to issue a ruling consistent with the panel’s decision.

“An Act of Congress could clear up the ambiguities, but so far, Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin,” wrote Judge Ronald Gilman, a Bill Clinton appointee.

This language isn’t as strong as the Fifth Circuit’s ruling and does leave the District Court with a little more wiggle room. The District Court could issue a very narrow ruling only affecting the plaintiff, Scott Hardin. The court is unlikely to issue a nationwide injunction, and any decision might be stayed if the government asks for the Supreme Court to weigh in on the case.

The government could request an en banc hearing from the Sixth Circuit Court. An en banc hearing is when the full bench hears the case. In that situation, the panel’s decision is vacated, but it would be unlikely for an en banc hearing to be granted due to even Democrat appointees ruling against the ATF. It appears that the only path of victory for the government in the case runs through SCOTUS.

Since there are multiple circuit splits dealing with bump stocks, SCOTUS is likely to hear a bump stock case. The government has already petitioned the Supreme Court to hear Cargill. If the high court agrees to hear Cargill or this case, that case will determine the future of the legality of bump stocks.

There is no timeline for the District Court to rule on Hardin using the Circuit Court’s instructions.


About John Crump

John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.

John Crump

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