Machine guns are not created from bump stocks until legislation says otherwise, says Fairfax criminal lawyer

Machine guns (MGs) are not created from bump stocks. As a Fairfax criminal lawyer and civil libertarian, I believe in a gun laws, firearms laws, and a Second Amendment with teeth limiting prosecutions and convictions. As with recent Second Amendment protections from the Supreme Court, we see the Democratic-appointed justices disappointing the most in that regard, and the more conservative justices delighting me the most. As much as I do not want Justice Clarence Thomas on the Court, I very much welcome his majority opinion on this bump stock matter, in Garland v. Cargill, ___ U.S. ___ (June 14, 2024). Bump stocks still involve the repeated movement of a firearm trigger, and the statutory definition of a MG does not cover such repeated movement. Cargill. Both sides in Cargill acknowledge the monstrously horrific massacre perpetrated in 2017 in Las Vegas using bump stocks with firearms.

Will Cargill create a field day for bump stocks used to avoid machine gun convictions?

With Cargill, the democratic process leaves in Congress’s hands to make unlicensed bump stocks as criminal as unlicensed machine guns, or not, leaving the electorate free to vote against keeping any nay voters in office. While I do not want Justice Samuel Alito on the Supreme Court, his Cargill concurrence says it all well: “I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it. The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machine gun, and it thus strengthened the case for amending §5845(b). But an event that highlights the need to amend a law does not itself change the law’s meaning. There is a simple remedy for the disparate treatment of
bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.” Cargill (Alito, J., concurring).

Cargill strengthens the rule of lenity, for resolving ambiguity in the criminal law in favor of the defendant

Cargill strengthens the rule of lenity, for resolving ambiguities in the criminal law in favor favor of the accused: “A majority [of the Fifth Circuit in Cargill] agreed, at a minimum that [28 U.S. Code] §5845(b) is ambiguous as to whether a semiautomatic rifle equipped with a bump stock fits the statutory definition of a machinegun. And, the majority concluded that the rule of lenity required resolving that ambiguity in Cargill’s favor.” Without the rule of lenity, legislators will not be held responsible to be clear in their words and judges will be permitted to fix such ambiguities against criminal defendants. Clearly, we need a rule of lenity with a full set of teeth.

Limit the executive branch from the scope of activities that it can criminalize

Cargill confirms that after Congress was unable to pass legislation defining firearms with bump stocks as machine guns, the Bureau of Alcohol, Tobacco & Firearms changed its longstanding practice of not defining firearms with bump stocks as MGs to the opposite. The Supreme Court allows too much executive branch legislation through executive orders, regulatory development, and other rulemaking. Strict limits need to be placed on the executive branch’s ability to do that with expanding behavior that can be prosecuted, lest we have more of an overly powerful president and executive branch than we already have. Criminal legislation needs the deliberative process of legislation through the legislative branch. Cargill is a win for not allowing the executive nor judicial branches to clean up legislative ambiguity and any other legislative failings and omissions.

Fairfax criminal lawyer Jonathan Katz believes strongly in reversing the overcriminalization of the state and federal statutes, and tirelessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Secure your free in-person confidential consultation with Jon Katz about your court-pending prosecution, by contacting our staff at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268.