The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun.
On December 18, 2018, the ATF issued a rule that bump stock would now be considered unlawful as machine guns and gave bump stock owners 90 days to surrender the devices. After that deadline, possession would be treated as a federal crime. The specific statement read, in part:
The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices — meaning “bump fire” stocks, slide-fire devices, and devices with certain similar characteristics — are “machineguns” as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.
On January 6, 2023, the Fifth Circuit handed down its decision rejecting the rule. It explained the technical aspects for the case as well as the clear shift in interpretation by the ATF:
“A bump stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.”
Judge Jennifer Walker Elrod wrote in her majority opinion that “[p]ublic pressure to ban bump stocks was tremendous” after the mass shooting in Las Vegas on October 1, 2017. However, “[a] plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.”
The majority further explained:
The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.
The holding was supported by a rule of lenity that “penal laws are to be construed strictly.” She noted that, as in United States v. Wiltberger, the Court had long followed the rule which Chief Justice Marshall described as “founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”
Thirteen judges agreed with the conclusion though twelve (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reversed on lenity grounds while eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reversed on the ground that federal law unambiguously fails to cover non-mechanical bump stocks.
Judge Stephen Higginson, joined by Judges Dennis and Graves, dissented, including a rejection of the lenity argument:
the Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations.
Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity. In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law….
The ATF is likely to find the ruling far less than “tender” but it is well-reasoned. It also stands in contrast to other circuits which reached opposing results. That creates an optimal status for Supreme Court review with a split in the circuits. The D.C. Circuit in Guedes, the Sixth Circuit in Gun Owners of America, and the Tenth Circuit in Aposhian came to opposing conclusions. These are well-reasoned opinions on a difficult question.
There is another reason why Cargill may be appealing to some on the Court. The majority specifically rejected affording the ATF Chevron deference. The reason is that the agency had not relied upon Chevron and seven of the judges rejected Chevron deference when the statute imposes criminal penalties.
First, Chevron does not apply for the simple reason that the Government does not ask us to apply it. Indeed, the Government affirmatively argued in the district court that Chevron deference is unwarranted. As other jurists have recognized in this context, that means that the Chevron argument has been waived—not merely forfeited. . . .
That would seem to be the end of the inquiry, but we recognize that one of our sister circuits has held that Chevron cannot be waived. Guedes, 920 F.3d at 21–23; see also Gun Owners of America, 19 F.4th at 899 n.5 (White, J., in support of affirmance). To be sure, we have never held in a published case that Chevron must be raised by the Government in order to apply. . . . But the conclusion is obvious, and flows from well-settled waiver principles. After all, that a court should defer to the Government’s expressed interpretation is just a legal argument, and a party waives a legal argument if it fails to raise the argument when presented with the opportunity. . . .
If ordinary waiver principles were not enough, we note also that it would contradict Chevron‘s central justification to defer to the Government’s interpretation without its urging us to do so. The justification is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people.'” Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (quoting Epic Systems v. Lewis, 138 S. Ct. 1612, 1630 (2018) and Chevron, 467 U.S. at 865)). Here, the Government made a clear policy choice by declining to seek Chevron deference. The very interest underlying Chevron demands that we respect the Government’s choice and interpret the statute according to traditional principles of statutory interpretation. . . .
The Chevron framework does not apply for a second, independent reason: the statute which the Final Rule interprets imposes criminal penalties. As noted above, the primary reason for Chevron is that it allows the executive branch to make policy decisions through the accrued expertise of administrative agencies. But in exchange, Chevron deference shifts the responsibility for lawmaking from the Congress to the Executive, at least in part. That tradeoff cannot be justified for criminal statutes, in which the public’s entitlement to clarity in the law is at its highest. . . .
Finally, we note a third reason why Chevron deference does not apply in these circumstances: that ATF has adopted an interpretive position that is inconsistent with its prior position. To apply Chevron here would contravene one of the rule’s central purposes: “to promote fair notice to those subject to criminal laws.” . . .
This is one of the most interesting opinions in the gun-rights area. However, under cases like Bruen or those moving back toward the Court, the underlying issue is the interpretation of the Second Amendment. This case is purely a statutory interpretation case. While it raises constitutional questions in issues like the Separation of Powers, it can be decided without expanding or limiting the Second Amendment jurisprudence.
On the face of the opinion, it (and the prior ATF interpretation) makes obvious sense from both mechanical and legal perspectives. Congress may have a different view but this is a major change to the law by agency fiat. (The change came under the Trump Administration).
The case is so compelling not just on its logic but the basis for a Supreme Court review that I am tempted to assign it as part of my Supreme Court class. Hopefully, the Court can resolve my dilemma by accepting the case and placing it on the docket. If any justices are reading this, I would appreciate the academic accommodation.
The underlying issue is likely something that Congress would examine. Here is a video showing how the bump stock can be used to simulate a machine gun’s rate of fire:
Here is the opinion: Cargill v. Garland
113 thoughts on “Set for a Supreme Showdown? The Fifth Circuit Rejects Bump Stock Ban In Contrast to Other Circuits”
“I don’t know who ATS is, but I do know that S. Meyer is a bully.”
ATS is the guy who attacks by calling others racists or violent. Those words lost their meanings so he now uses the term bully. That is an ignorant term for the wimpish ATS, but who cares. However, we do take note that you self-deleted this comment providing evidence that you are ATS once again hiding in someone’s basement.
You are ATS and you can’t stand it. You even run away from yourself.
ATS, you know who you are and you know what you do. To protect discovery you respond anonymously and sometimes use a link so your response and all others that follow disappear. I will repeat my answer to Jaelyn since I kept it handy knowing how frequently your responses to me disappear with my own. The bully is a liar, deceiver and a fraud known as Anonymous the Stupid. He is a wimp.
“are you sure she deleted it and not Darren or someone else?”
Jaelyn, I am as sure as I can be. ATS uses an address that causes deletion by WP or a moderator, but ATS controls what address he uses.
One can note his recent quirky insults to me appearing in your inbox. Though appearing in your inbox, the majority will not appear in the blog as intended since ATS controls the address he uses.
I proved the self-deletions about a year ago when I predicted which of his posts (along with the rest of the chain) would be deleted, and they were. I did that a couple of times.
When he becomes very frustrated, he has a meltdown, and that is when he starts deleting himself and blaming others. He tries to hide among the anonymous posters, but the types of a post he writes are almost always his. He also uses pretend friends and sometimes has an icon and a name. Jonathan was one, and green anonymous was another. He has used many others. [there was a different Jonathan on the blog recently, ATS’s had a green background and blue picture]
He is a deceiver and a liar. He has been wrong on almost every significant topic. He hides being wrong under anonymous with a generic icon.
It is helpful for me to label him as Anonymous the Stupid or ATS. The abbreviation was from another blogger. It is a rule of mine, always label your enemy.
He acts like a Stalinist supporter and might arise from a family that was Stalinist and didn’t join the New Left that tried to separate the murders from their Stalinist behavior. I know I am stretching parts where I lack knowledge, but one can follow known trends and Anonymous the Stupid fits.
He uses Alinskyite tactics. So did Hillary, and Saul Alinsky was her mentor. However, I do not believe Saul Alinsky originated such tactics. I think he took them from Stalin.
Republicans need to get off their butts and get a bit dirty, though not illegal. They should be willing to get their hands dirty and stop worrying about how they appear.
The recent fight for speakership by McCarthy, who is on the left side of the Republican Party, shows the problems faced within the party. The Freedom Caucus was asking for more democracy and less Pelosi dictatorship. They want all members of Congress to have their say. I posted this before, but if you are interested and haven’t seen it, here it is again.
The Demands of the Freedom Caucus Are Not Unreasonable – The American Spectator | USA News and Politics
The Gun Control Act of 1968 defines “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” It also gives the ATF the power to define “machinegun” to include “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”
As your video notes, the bump stock modification is intended to allow the gun to shoot more than one shot with a single function of the trigger.
The irony of the majority’s position is it does not apply a textualist interpretation of the Gun Control Act of 1968. This definition of “machinegun” is NOT the colloquial term given, yet the Court tries to define “what a machinegun is” and its firing mechanics without any statutory reference to those details in the Gun Control Act of 1968.
The plain meaning of “single function of the trigger” is not limited to actions in which the the trigger does not reset. Why would the Act use this language instead of “single motion of the trigger” or something more else that limits its interpretation to physical motion? Function is extremely broad, and this breadth is an intentional choice of the drafters.
Even non-mechanical bump stocks involve a single function, from the shooter’s perspective, with respect to the trigger. There is no basis for interpreting “single function of the trigger” to mean the mechanical processes involved in engaging with the trigger. Rather, it is intended to mean (as is backed up by legislative history), the shooter’s action when engaging with the firearm. The shooter, when using a bump stock, does not have to re-fire the weapon, making the INTENT of this modification a conversion into a handgun.
Focusing on what happens from a technical perspective is judicial overreach.
What is preventing the ATF from classifying a bump stock as a destructive device or AOW (any other weapon)? These are two of the six categories covered by the NFA.
The Administrative Procedure Act. Administrative law has very clear guidance when an agency’s actions are found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
“As your video notes, the bump stock modification is intended to allow the gun to shoot more than one shot with a single function of the trigger.”
Nope. The trigger works like on any other semi-auto, a bump stock does not change any aspect of the firing mechanism of the gun.
“The classification of these devices depends on whether they mechanically alter the function of the firearm to fire fully automatic,” Jill Snyder, a special agent in charge at the Bureau of Alcohol, Tobacco, Firearms and Explosives, said at a news conference in Las Vegas on Tuesday. “Bump-fire stocks, while simulating automatic fire, do not actually alter the firearm to fire automatically, making them legal under current federal law.”
More importantly, do you know how many more rounds per period a bump-stocked rifle can fire versus a non-bump-stocked one?
The Act does not look solely to the mechanical processes of a firearm to determine whether it is a “machinegun.” Your above response describes the mechanical difference between a bump stock and an automatic weapon but it does not address the functional difference between these.
From the shooter’s perspective, the shooter does not have to independently fire each round with a bump stock. The bump stock’s INTENT (which is the word used by the Act) is to modify a weapon to turn it into a weapon that fires rounds like a machine gun.
The thing is that the only reason that the Federal government has any jurisdiction over bunpstocks or machine guns, so called, is because of the commerce clause.
If the Federal government bans the interstate commerce of bump stocks or machine guns, then the commerce clause shouldn’t apply and therefore any bump stocks produced should be legal as.long as it doesn’t cross state lines. Sort.of how switchblade knives which are manufactured in a state are perfectly legal to be owned in that state by civilians.
In reading the NFA it’s also not clear that the law bans burst fire settings on firearms.
The law doesn’t ban select fire rifles, it clearly states machine guns. It doesn’t say anything about a rifle firing more than one round with the pull or the trigger, it refers to machine guns, not burst for e weapons. And since it can be argued that a machine gun isn’t one which only fires three rounds but one that is continuously firing until the weapon has depleted its ammunition. Then the whole argument that even firing multiple rounds isn’t banned. Especially when considering that when the NFA was passed there was no such thing as a burst fire setting on a firearm.
Have you read the opinion? That argument is addressed and refuted.
I’m guessing that you have limited knowledge of firearms (that is not an insult, just as you saying I have very limited knowledge of poetry wouldn’t be an insult.) The exact same thing can be accomplished using a strong rubberband or a belt loop. Although, when using a belt loop aiming is virtually impossible as you have to fire from the hip. Are you saying that heavy duty rubberbands and belt loops should be banned as well?
There are numerous videos on line of rubber band bump firing. I myself have used on to waste 30 rounds of ammo quickly 🙂
Does the bump stock modify the trigger?
No it does not.
The trigger still fires one round with a pull and is not engaged until after it is reset.
Thus the semi-auto rifle does not become a ‘machine gun’.
This is what is key to the 5th Circuit’s decision.
Please actually learn something about firearms before posting.
I wonder, does the scope of 2nd Amendment protections change when the president (Biden) states an intent to attack Americans with F-15s?
This is a constant idiotic refrain from the left.
If ordinary people take up arms against the government, and the military defends the government – the military will prevail.
But at Tienamen Square we saw the difficulty of getting the Miltary to take on their own people.
That was shown even more clearly at the collapse of East Germany.
There were several revolts int he USSR during the 50’s and 60’s – these had to be crushed by Russian military – because the Check and Hungarian military would not take arms against their own people.
Even at J6 – while SOME Capital Police went to war with Protestors, MOST were helpful and non-confrontational.
If 10,000 people with AR-15’s surround the whitehouse – they had better be foreigners if you expect the US military to interveine ?
Why do you think Biden and Pelosi tried to engage in a political litmus test of the military post J6 ?
Because the rightly do not trust that the military will defend the federal government against the american people.
That does NOT mean that the military is inherently sympathetic to protestors.
It just means that it will take extraordinary circumstances for the military to attack americans.
The American people voted for Biden, those were whining nutjobs
The russian people voted for Putin.
The Iranians voted for their leaders.
Or did they ?
When elections are rigged, we they are lawless, when the truth is supressed, When government steps on the scales in elections.
We do not know what the people would have done.
And the resulting government is not legitimate and lacks trust.
You had 60 court cases to push your points, but lost.
Not a single court case was decided on the merits. That is called ducking the issue.
Regardless, after those 60 court cases – ordinary americans still think it is likely that the 2020 election was rigged.
Just like the J6 committee changed no ones minds.
The left owns US institutions – we all understand that. It is a powerful advantage you now have in your arsenal.
But it has come at a cost that you do not get – trust in those institutions is not just at all time lows – it is in the toilets.
No one’s mind was changed by courts that refused to hold hearings.
This is something that worries me.
As I have stated on this blog before, we must not go down the path of civil war.
Now, I am wondering if it is not inevitable.
Where would the military stand?
I would like to believe those in the military would refuse to take a side.
However, I have also seen more than a few videos of military members saying if we, citizens, do not obey their orders, they would not hesitate to shoot.
I do hope they are a very, very small minority.
How does the new woke military function in such a situation?
First, the odds of a Civil war like 1865, or even 1775 are either Zero or near Zero.
In the unlikely event that our problems are not solved other ways a better “model” would be the fall of East Germany with millions of people in the streets.
Next, Absent a 1865 type Civil War there will be no involvement at all of the US military.
It is not the role of the US military to involve itself in political conflicts. We do not even use the US military for riot control.
Nor do I think even the left leaning leaders of todays military are willing to involve themselves is a political conflict.
And I would note that though some of the top brass is left leaning the military as a whole – including substantial portions of the brass are NOT left leaning. There is a serious danger that if the top brass ordered various units into a political conflict that generals and colonel’s would refuse as an illegal order. Posse Comitas is still the law of the land.
In any high stakes political conflict – the worst thing anyone in the military can do is choose to be on the side that LOSES.
The easiest thing to do is sit it out.
The national guard is different. They are also politically different. The Guard is more heavily tied to their communities. The Guard is likely more “conservative” at all levels than the military itself. The Guard will take on policing rules. They will protect the capitol or the Whitehouse.
But they are highly unlikely to go beyond protecting buildings and clearing actual riots.
But we are still talking about a highly unlikely scenario that would likely be years in the making and resolved before we get that far.
I constantly raise the fact that there is an actual right to overthrow a govenrment that is abusive of rights by FORCE, not so much because that is going to happen, but get those on the left to grasp that they can not win this conflict.
The most important reason that the left is on a trajectory towards large scale failure, is inherent in the nature of the left.
Their ideas DO NOT WORK.
I was honestly surprised there was not a red tsunami in 2022. The tolerance of americans for large scale failure is greater than I thought.
Further Biden’s Reichstag speech and the casting this as democracy in peril seemed to have actually worked.
I do not understand how that worked at all. But it did. Still I am a beleiver in the story of the little boy who cried wolf.
The left can only go to the well so many times. They can only lie so much before they lose people – En Mass.
As I am reviewing the exit data on 2022, while not what Republicans hoped for it is encouraging.
Republicans won every age cohort except under 30. Even under 30 they did much better than they did in 2020 – and that is a big deal.
The only sex demographic they won was single women.
In every single minority Republicans continued the trend of gains that have been present since before Trump declared for President.
Even 1st generation hispanic americans are moving towards Republicans. Which means that the efforts of democrats to swing the electorate by inviting millions of illegal immigrants into the US is going to have a far smaller impact than democrats hope.
Republicans are gaining among asians. among jews, among hispanics, among blacks.
And they have been doing so for about a decade.
Democrats have several semi permanent advantages in elections.
A biased media – this is not new. It has been true my entire life. But it has gotten worse and it is not changing any time soon
That benefit declines in value as trust in media declines. It is also close to a fixed benefit not a trend.
It is worth x percent of votes each election, it is not X in 2020, and X+2 in 2022 and X+4 in 2024.
The destruction of election laws and advante of large scale mailin voting is a new advantage for democrats – it has Finally gotten significant portions of the under 30 couch potato voters to vote. But the under 30 advantage of democrats though large is declining.
And like the media this is either worth a fixed number of votes per election of a fixed percent. It is not a trend. It is a one time gain.
It appears that election fraud enabled by mailin voting and the destruction of election laws and courts that refuse to require that election laws are followed is likely providing democrats somewhere between 100-200K votes per state in swing states.
This is close to a fixed number – the larger the number gets the more likely it will be caught and that would be a disaster for democrats.
Catch significant fraud by democrats ONCE and everyone will beleive every claim ever made.
The abortion issue is likely a One time factor.
Voter Supression through government and private censorship is another democrats advantage. But again this advantage is either worth a fixed number of votes, or a percentage of total votes. It is not a trend – a percent that increases with each cycle.
There is not a single election advantage that democrats have that is a trend.
All the advantages Republicans have are trends – so long as Republicans do not screw things up, in the long run they are likely to win, and they are likely to quickly move from winning to sweeping.
Democrats won nearly all close elections in 2022. That is highly unusual – but not actually impossible. But the same thing happens in exactly the opposite direction if all trends favor republicans.
I would further note – though all of these will take time to play out – the rust belt will inevitably turn red. Oregon and Washington are no longer deep blue. NY is not deep blue and may turn red or atleast pink. NV will turn red soon.
It is probable that GA will turn purple or even Blue soon, and probably North Carolina. But Red states are not for the most part moving Pink or blue. While Blue states are moving right slowly
The stock, barrel, receiver, muzzle, action, sight, magazine and ammunition constitute the parts of a rifle or “arm.”
The 2nd Amendment does not limit an American to keeping and bearing only one part of an arm.
The 2nd Amendment does not preclude fully automatic arms.
The 2nd Amendment allows Americans to keep and bear arms in their entirety and in their complete and functional form.
The Supreme Court must, of its sworn-oath duty to support the Constitution, strike down any and all laws that adversely effect, in any way, the keeping and bearing of arms.
The Supreme Court has no power to legislate, to modify legislation or to modify legislation through “interpretation.”
The 2nd Amendment is clear and not qualified by the Constitution and is, therefore, absolute.
The stock, including a bump stock, as part of an arm, may be kept and borne by an American.
It is unlikely that a man is capable of bearing an artillery piece, an ICBM, etc.
The 2nd Amendment was conceived to allow Americans to put forth a capable and effective militia with arms equal to, and not inferior to, its opposing force.
Let’s all read the clear and evident, meaning and intent of the U.S. Constitution and Bill of Rights together, with emphasis on the 2nd Amendment which says that the militia shall secure the free state and Americans have the right to keep and bear arms to join and make the militia an effective fighting force.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Just curious, what part of the first ammendment can they remove?
I suggest you do a bit more research into the NFA. (National Firearms Act) and the updates along with challenges over the year.
That said, the court got it right.
At least in this case.
The argument is that the bump stock doesn’t change how the gun functions. The trigger is reset on each round being fired.
So there is no changes to the gun or how it works.
That’s the crux of the argument.
That is why needs to be in focus. Not some rant on the 2A.
One hopes, let’s hope, I hope Prof. Turley never again begins a sentence with “Hopefully, “. Perhaps WordPress could be configured to reject such postings.
This is one of the most interesting opinions in the gun-rights area. However, under cases like Bruen or those moving back toward the Court, the underlying issue is the interpretation of the Second Amendment. This case is purely a statutory interpretation case.
I’m a little confused here. Is there a circuit split on the statutory interpretation question? Because this decision did not reach the constitutional issue, it can’t really create a split on the Second Amendment question. Due to the 5th Circuit’s basis for its decision, and the principle of constitutional avoidance, that issue (2nd Amendment) can only be reached if preserved by the plaintiff, and if SCOTUS disagrees with the statutory interpretation done by the 5th Circuit.
This is not a 2nd Amendment case; it’s about restraining the administrative state from usurping the power of Congress to make law.
I believe he saying that there is a split in that one court says that the ban on bump stocks is valid, while another district court says that it is unconstitutional .
The issue is that one court considered that the bump stock is illegal in that it converts a semi-auto rifle in to an automatic rifle.
The other court concluded the exact opposite.
The second court has it right.
The bump stock doesn’t change how the trigger functions. The trigger still resets after each round fired.
That’s the key to that decision.
If this went to SCOTUS… then they will side with this decision over early cases that upheld the ban.
Personally I’m not a fan of the bump stock. But its legal.
I’d like to know what the professor thinks about the rule of lenity – is a last-resort ambiguity resolver, or on the same level as other tools of statutory construction?
In a word, yes, it is generally viewed a last resort, unless a jurist opportunistically resurrects this tool to reach his/her preferred outcome (as is the case with textualism, originalism, statutory intent, and all of the other tools of statutory interpretation.)
There is a large body of SCOTUS cases which argue the rule of lenity “is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seized every thing from which aid can be derived, it is still left with an ambiguous statute.” (See Chapman v. United States, 500 U.S. 453, 463 (1991).
Since the 1950s, the Court has looked for ultimate and grievous ambiguity before it considers resolving statutory doubt in favor of a defendant. The problem, however, is that each purpose or function of the rule of lenity is at odds with the other. If a court faithfully endeavors to protect the separation of powers doctrine and defers to Congress when faced with an ambiguous criminal statute, then any statutory doubt is usually resolved fully using the dozens of tools of statutory construction available to the court without regard to lenity. Once a court discovers Congress’s hidden intent, then no ambiguity remains nor any reason to apply lenity—even to a facially ambiguous statute. Only after a court has “seized every thing from which aid can be derived” and can only guess at Congress’s intentions will a court apply lenity as a last resort to avoid judicially-created statutory breadth to protect the separation of powers.
Conversely, if a court faithfully endeavors to safeguard due process rights, then it ought to construe narrowly all facially ambiguous statutes that fail to provide adequate notice of crime and punishment. But if a court applies lenity without any attempt to glean the intent of Congress to resolve statutory doubt, then it risks limiting Congress’s authority to make law. Stated differently, if a court favors the separation of powers function of the rule of lenity, then it diminishes the due process function, and vice versa. This tension defines the problem: one side of the lenity coin is in conflict with the other.
The Supreme Court has avoided the tension by planting its judicial thumb firmly on the separation of powers side of the lenity scale. If the Court can resolve statutory doubt, then it usually will. And without statutory doubt, there is no room for lenity. Thus, the doctrine has lost its due process bona fides. As a result, the Court has declined to strike the rule and justices continue to cite it as a viable and important tool whenever it helps their desired outcome.
For the safety and security of a nation, that nation needs men and women who put themselves in harms way for betterment of those who would not answer the call.
All one needs is to look at those who stormed the beaches at Normandy.
Or for a more recent example, those Ukrainians citizens who enlisted to fight the Russians. BTW, some are armed with weapons provided by the DoD.
If Biden succeeds in getting the US into WWIII, are we going to expect to see you or your children if they are of military age, running to the recruiting centers to enlist?
Why do you need machine guns? How can you be that scared?
Where did I say I need a machine gun? I do not need one. I do not have one. Have to counter my post with a strawman argument? Is your position that weak?
And, will you or will you send you children if they are of military age to fight Biden’s war?
Okay why do you need man-killers at all?
Did you read the part where I said,
“For the safety and security of a nation, that nation needs men and women who put themselves in harms way for betterment of those who would not answer the call.”
You do not join up for the military without considering the possibility of being deployed to a war zone or other hazardous conflict. It takes a certain mind set to be willing to put oneself in harms way, and doing what maybe necessary to provide safety and security of others.
Or to use your vernacular, man-killers.
And just sometimes,
“It is not my place to reason why, but to do or die.”
Yes, I understood I would be going to the war. I got sick of al the killing, and railed against the actions turning our sons to killers and the the destruction of another nation which did nothing to us. I was hospitalized twice and cane home in a delirium.
I doubt it. Where’d you go through boot camp and AIT, what was your MOS and where and when and with what unit did you serve?
I was in the Air Force, served at the Air Force Flight Test Center and the 553rd Recon Wing in the war.
Vous ecrivez “Okay why do you need man-killers at all?”
Uhm you do realize that all rifles are ‘man killers’ right?
You can use a .22lr to kill someone. In fact .22lr pistols used to be a favorite of the mob.
With proper shot placement you can be killed with a pellet gun.
Note that there are now between .22 and .50 cal pellet guns that have enough pressure to kill a person at 100yrds.
So what’s your point?
Clearly you don’t like firearms.
So don’t own one.
I actually feel safer when people like you stay away from firearms.
Me, I like to shoot and choose to own firearms.
Once again, gun owners to me are incomplete people which they think they can fix with guns.
Sorry, but it is my personal opinion.
“. . . gun owners to me are incomplete people . . .”
Your repetitious, juvenile psychologizing is duly noted.
I got my M16 from the government when I was in the service, but gave it back, like they wanted. I had outgrown the thrills of machine guns by then.
The John Roberts Kangaroo Kourt will have all of us armed and scared of each other.
Actually gun purchases have been on the increase since 2020 as people fear an increase in violence which occurred during and after 2020 Peaceful Yet Mostly Fiery Protests, BLM, and the de-fund the police movement. Violence also increased in no cash bail cities, and George Soros back soft on crime DAs.
Of note, 22% of Black gun owners and 16% of Hispanic buyers had purchased arms for the first time and nearly half of all first time buyers were women.
It is not Chief Justice Roberts who is arming Americans. It is the de-fund the police movement, no cash bail laws, soft on crime DAs. People are scared of criminals and feel the need to defend themselves.
I assume you mean an actual machine gun. Ask Biden. He’s protected by men with machine guns, so there must be a reason to use them.
That is because there are a number of right-wing haters with guns out there.
Your reasoning is emotional. You anti gunners don’t have to get a gun if you don’t want but how dare you make that decision for someone else. Where’s your Dominion? You’re a tyrant. Go to DC or CA
The most massive outpouring of hate today is from the left.
Trying to disempower you. Calling you stupid, and immoral is not “hating you”
Even hating what you stand for is not hating you.
It is only the left that is full of hate.
Really George? Who are you to question what somebody needs? They can decide for themselves their own needs. This government intrusion is exactly why we have the second ammendment. Why would a hockey player buy a $200 composite stick when a wooden one is available at $25? To each his own.
Where do you get a machine gun?
Clearly you don’t know anything about firearms.
And yes, its legal for you to own a machine gun, or a select fire rifle if it meets certain criteria and you’re willing to pony up the cash.
Learn more about the NFA and the updates to the law that has happened over the years.
I have already been in a war, and am not impressed by military wannabes. Outgrow it.
I got my DD214, honorable conditions, USMC.
Based off your drive by, one liner comments, you need to grow up.
I outgrew guns decades ago.
If that is your choice, then that is your choice. No sarc implied.
But if you think declaring that you “outgrew guns” some how makes you superior to others, that is an opinion that many do not share.
A gun is a tool. Nothing more. It has no free will to act on its own. It is up to the person using the gun in how it will be put to use.
I use guns to put meat on the table. I use guns for the safety of my livestock. I use guns as a form of recreation. If need be, I will use a gun in self-defense of me and mine.
Not sure if you have been paying attention lately, but since the de-fund the police movement, no cash bail laws, George Soros backed soft on crime DAs, crime has skyrocketed.
UpstateFarmer – back in the 90s someone showed up at an anti-gun conference with stickers saying “This is a Gun-Free Home” that could go in people’s windows. He offered them to the conference attendees, but got no takers.
So what you’re saying is that life threatening danger does not exist outside of war? I disagree.
Maybe the right to have a weapon you deem necessary for your own defense should fall under the 5th and 14th Amendments…’Right to life…Liberty”. Can anyone say that having a gun in your 500 square foot NYC apartment might not be needed one night? But if it were up to Kathy Hochul and the NY statehouse only the bad guys would have guns and you would have no defense against them. Of course they have armed guards, security and hefty laws protecting them.
The cops will take 20 minutes to show up. A .357 magnum travels at 1500 feet per second.
Your .357 Magnum is a revolver that holds 6 rounds.
I’ll take my .357 Sig over that.
Or my .40 S&W or my 9mm w correct ammo.
Pistol over revolver, albeit the revolver will have less malfunctions.
A handgun in hand is faster than the police arriving on time. I see the people of Houston Texas are defending themselves.
I outgrew guns after adolescence.
More police wannabes?
If I deem backpack nukes to be necessary to my own defense, should I be able to have them on my property?
You are right. A person with your intelligence shouldn’t own a cap pistol.
I have no problem with bump stocks being illegal but I would prefer that it be done by legislative action than executive fiat. The power of the executive branch needs to be tightly controlled and restricted but that also requires the legislative branch to do their job. I did not mind the debate over the speaker because it showed democracy in action with dealing and compromise. Was it messy? Well yes but so what. Thats what a legislature is for.
Let this bump stock be debated and determined in congress not by some executive shill. The reason we have dueling executive orders when administrations change is because the congress either does not do it’s job or gives the executive branch too much leeway. Enough with the leeway. Write the laws clearly, debate and then pass them with specific spots where the executive is granted leeway within certain strict parameters. Specify where there is no leeway for executive action. Also no law should be waived on enforcement by executive decision alone.
Enough of these 4000 page omnibus laws with overnight to read them.
If you want to waste a lot of expensive ammunition, get a bump stock otherwise learn how to hit your target. I’m no sniper but I can at least hit a man size target at 100 yards whether with a 308 or a 556. Of course the tremor is less if you skip the caffeine.
…unless one is going through caffeine withdrawal. Gotta have my fix before training at the range. 😏
The most skilled hunters and target shooters would prefer a slow-shot or single-shot weapon. It requires far more skill as a marksman. It takes no skill whatsoever to use these weapons of war. If you can’t shoot straight, but a shotgun!
I support gun rights overall, but can anyone tell me a legitimate need for speedier multiple-round weapons? Why does anyone need a weapon like this?
When deer hunting, I want a bolt action rifle with a multi-round magazine. Proper ammunition and shot placement generally results in a one shot kill.
However, when shooting on a live target that may or may not be moving, at a gusseamated range (somewhere between 175 and 200 yards, deer dont stand right next to a yard marker), and at the mercy of the wind, I want something I can get a follow up shot fast. Or if it goes down but I need that final killing shot.
When I have coy or foxes going after the livestock, I want something that I can take a quick second or third shot as put that critter down quick.
Shooting NRA High Power Rifle, we shoot 10 rounds with a magazine change from the standing to sitting rapid fire, and the standing to prone rapid fire.
PRS, RimfirePRS and even AirPRS require multi round magazines.
Olympic Winter Biathlon use 5 round magazines.
It does not matter what kind of rifle it is, be it single shot, bolt action, or a semi-automatic, all require marksmanship to place a round on target.
BTW, I am not a fan of bump stocks. I think they are a gimmick. Being a Expert Rifleman, I can manipulate the trigger to make it seem like a automatic weapon. No gimmick required.
So if I use the exact same rifle to fire a single shot into Bambi’s Daddy I am ok with you then?
But, If I go to the target range and use that same rifle with the Bump Stock engaged….and spray my Kid’s inheritance down range at Jugs of Milk….I am a criminal somehow?
This is not about Bump Stocks folks….it is about government bureaucrats magically creating new criminal laws without any State Legislature or Congress being involved.
When we see such laws…especially coming from the EPA, DHS, and a host of other Federal Agencies we should all be very worried and want that conduct not only stopped but be made an act that results in people being dismissed from Government Employment.
A side note is perhaps one day we might actually need that bit of technology in defense of this Nation.
That is the Second Amendment side to this Case and the basis of why a runaway central government must be stopped in the Courts before it becomes too powerful to stop in the streets.
Unless and until the Constitution is the basis for all of our laws….laws properly written by the bodies authorized under that Constitution to do so….we are at risk of losing our freedom to an oppressive government and we know where that shall lead.
Remember….some Box Cutters killed almost three thousand people in a few minutes on 9-11 and Timothy McVeigh killed hundreds using some fertilizer and a U-Haul Truck.
We have not outlawed Box Cutters, Fertilizer, or U-Haul Trucks have we?
Drug smuggling of Fentanyl is killing over a hundred thousand people a year now….and we still have an open border.
Bump Stocks are the least of our worries if you ask me…..if the Federal Government and the zealots at ATF want to do something to prevent killings I would suggest there ere real targets for them to pursue instead of worrying about Law abiding folks.
I can’t say what I think of those who need man-killers here.
“Turns out I’m really good at killing people. Didn’t know that was gonna be a strong suit of mine.”
-President Obama, 2011.
Would that be the man-killers you are speaking of?
Very well stated.
“Why does anyone need a weapon like this”
Why don’t you ask some Ukrainians. The French revolution would have been messier, but quicker, too had they had these. Look, you may have prostrated your self defense to your local police, but some of us prefer a bit more. And, as is always, the left only thinks of themselves, heaven forbid you are in a position to actually help someone else out in a time frame shorter than getting a spending bill passed.
but can anyone tell me a legitimate need for speedier multiple-round weapons?
AGAIN. Rights are not predicated on need. Need then gets determined by Government. The Government is REASON the 2cnd Amendment was NEEDED to get the Constitution ratified by People.
You can alson read Miller. The Miller decision clearly states protected weapons are those weapons common to the people and common in warfare. Thus the ruling is part of the Constitution.
BIDEN ADMIN along with the Left-Wing Social Groups continue to lose every major and minor case in the Federal Courts and the Supreme Court. Biden gets woke and active Left Wing Social group legal advice, which is based on Science Fiction/Woke interpretation of the law, which is all wrong. Biden will lose again in the Supreme Court on this case
Outgrow your adolescent need for man-killers. The rest of us did it long ago.
You and the other sheeple haven’t been domesticating yourselves for that long. It is a relatively new phenomenon, like suburbs and MAOI inhibitors.
But if you are so anti-gun, perhaps you’d pester your congressmen to withold all US aid to Ukraine until they change their gun laws.
Ukraine is being attacked by Trump’s buddy Putin. We are not under attack from anybody except for the right-wing insurrectionists.
When Joe Biden freed one of the world’s biggest machine gun sellers, in trade for a sportsball player with a dope habit, Democrats lost all credibility on the subject of regulating guns.
I will when you outgrow your love of criminality and Government Tyranny.
We got tyranny on January 6. Were you there?
On the golf course. Then at the scary gun range training.
That wasn’t tyranny. It was stupid but it really could have never overthrown the government. And it is the government and like-minded people like you that enable and favor tyranny. You’re done being an adolescent that wants a man killer? Good. Get an emotional support pussy.
Actually it could have worked – but not by “overthrowing the government”
But by surrounding congress in the capital and glaring at them while they voted.
Little else gives spine to legislators more than having thousands of angry constituents in the capitol glaring at them while they certify a rigged election.
More so than even the protestors – most democrats KNOW all the games they played to win the election. They KNOW they are frauds.
“Outgrow your adolescent need” to spew playground insults.
No guns on the playground. Did you folk not learn your lessons about guns?
Ruling was handed down Jan 6 2022 or Jan 6 2023?
I find bump stocks like trick triggers to be a novelty, sacrificing control for an increased rate of fire. They are dangerous and unusual and there is a historical analog to their regulation (machine guns). They can be regulated under the second amendment. It might require new legislation as opposed to a decree from the bureaucracy, but they can be regulated. More significant are the ninth circuit cases returned the the trial court after Bruen. Bans on standard 11+ magazines and ergonomic features like pistol grips are far more irrational and more violative of the second amendment..
Interesting Case Law. Under this reasoning of the Congress should decide “penal” Law not the Courts, then how do you square the “penal” actions taken against those that chose not to follow mandates (fiats) on the COVID shots? There is sufficient legal argument that 1) the shots were ineffective at stopping the spread of disease 2) the “vaccine” creates an unreasonable risk of injury and or death to some 3) there is sufficient religious objections to taking any or some “vaccines” 4) the Government changed the definition of “vaccine” to fit the failure in this case of the vaccine to meet the prior 100(?) year definition. I am confused that any agency or branch has the authority to override the clear Constitutional and Statutory authority of Congress to establish penal Law.
The law that prevented most people from owning machine guns….actually defines ‘machine’ guns. There is little doubt bump stocks restrictions would not survive . Democrats know that, don’t care. Democrats know their audience. Their voters are stupid. All they know is Dems passed the ‘gun restrictions’. Their voters never know when it gets overturned. And to top of the idiocy, after the it gets overturned, the Dems will still use their passing the law in their campaign ads.
This was a Trump Administration rule at issue so not really an example of your complaint about how you think Democrats approach guns.
This was a Trump Administration,
Trump ran on the Republican Ticket. Trump is not a politician. He makes his decision on what he thinks is best. While Trump may have been able to stop the regulation he did not try. Reason why he will have to explain. Not being a Democrat, I have no magic mind reading skills.
Trump was also very busy defending himself against a rabid democrat army of state actors sabotaging his every move.
. . . a rabid democrat army of state actors sabotaging his every move.
That there is a keeper.
Trump controlled the president, and the House and the Senate and put his goons in every part of government. What did he achieve? Infrastructure bills? Health care? International relations?
George, you are either lying or wholly ignorant of current events. Trump controlled nothing. Not being a swamp rat, he had zero swamp rats loyal to him.
Which was the worst part of his term? All the Prosperity, or all the Peace?
My logic for defending my Second Amendment rights are for personal protection, thus the need to alter a personal protection device to increase the fire power is unwarranted
My logic for defending my Second Amendment rights are for personal protection,,
Except for the part about the Second Amendment not mentioning personal protection, your logic works. What you have done is tied a right to a need.
Rights are not predicated on needs. If it were, the govt would quickly define away your need. (you have cops with guns, you don’t “need” guns.)
Then, you disagree with Justice Thomas in NYS Rifle & Pistol Association as well as the Framers of our great country.
THOMAS: In District of Columbia v. Heller, and McDonalid v. Chicago, “we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. We too agree and now hold, consistent with Heller and McDonald that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Self-defense is absolutely integral to understanding Second Amendment jurisprudence. The Second Amendment clarifies this by inserting the clause “being necessary for the security of a free State”, meaning necessary for individuals to protect themselves from despotism. The concept of a “free state” in the Framers’ generation was juxtaposed with despotic states, where men were not free. Thus, the right to bear arms was necessary to ensure that men could protect themselves from the tyranny of a despotic authoritarian regime.
Is your personal protection device designed for a specific threat? How can you be sure an increase in firepower is warranted or not? I hope you are right in your estimate and if not, I hope your neighbor can help you (of course, you probably aren’t much help to your neighbor, but you be you). In 1787, the rate of fire of a personal protection device was pretty low. The increase in the rate of fire from then to now (w/o bump stock) is enormous compared to the increase in a standard semi-auto rifle and one with a bump stock.
Personally, I see bump stock as a gimmick, it is an amplifier that goes to 11. I didn’t use them on my ARs and I won’t if the law changes, but that’s just me. Look up the JP SCR-11 rifle and compare its rate of fire to the bump stock video. There are many factors (eg rate of fire v. precision) that can be considered. But in the realm of this debate, the only issue is if one side wins this skirmish or not – it’s a sideshow, outside of legal academia.
It may be a side show to second amendment rights, but it’s important to the effort to restrain the administrative state. That’s what the case is about.
“[I]t’s important to the effort to restrain the administrative state.”
Such government regulations are a determined crawl to the usurpation of rights.
Where was the love for restraining the administrative state during Trump’s great expansion of it? Using defense funds to build the wall, for example.
It was legitimate, or have you not noted the munitions on the other side of the border backing up the influx of drugs, criminals, and human trafficking. After thinking about this and noting it is your big gun in argument, it is time to buy a cap gun and play with the other six-year-olds.
Congress denied Trump funds specifically allocated for this purpose. Trump took money allocated for non-wall building purposes and illegally used it to build the wall (that he said Mexico would pay for).
ATS, you have an odd way of defining illegal, and it makes you sound ignorant. Mexico paid in kind for that wall as Mexico used its territory and army as a temporary wall preventing illegals from crossing and keeping people in Mexico. You demonstrate ignorance about how deals are made and prove no one should listen to you.
But let’s wait for what you say about Biden’s theft of top-secret documents. President Trump had the right to declassify and remove the documents. Biden’s actions are known as theft, and now we have to wonder about his sharing secret documents with the Chinese. Let’s hear what you have to say. Biden’s actions are approaching treason, something you accused Trump of.
Anonymous at 1:30: Didn’t I just read somewhere that Biden was going to continue border wall construction?
this and more:
Yes, we live in a bizarro world where Biden resumes border wall construction in certain highly trafficked areas and Republicans reject a Biden request for $3.5B to beef up border enforcement, just so they can continue to complain that Biden isn’t helping the border problem.
American politics is broken.
It’s a sideshow…outside legal academia. What I meant by that last bit, in part, is that it is just as important for proponents of the Constitution to restrain the admin state as it is for the opponents of it to unleash the admin state on this (and many other) issues, but the ramifications of the ultimate decision are effectively purely academic and have no real-world ramification regarding the exercise of 2A; bump stocks being a meaningless totem for both sides to rally around.
That makes no sense. Is there some limit on “firepower” that assures adequate self-defense?
I took it to mean he would rely on fundamentals…target identification, sight picture, trigger control, etc as opposed to suppression. But I’m just spit-balling.
Of what are you so scared?
“personal protection;” “increase the fire power”
Apparently, you did not connect those two thoughts before writing your comment.
Black Rifles Matter!