High Court Could Draw Line Between Administrative and Criminal Law in 2nd Amendment Decisions

The Bureau of Alcohol, Tobacco, Firearms and Explosives flip flop on banning bump stocks has highlighted issues some have with the administrative state.
High Court Could Draw Line Between Administrative and Criminal Law in 2nd Amendment Decisions
A man shows a bump stock installed on an AR-15 rifle at Blue Ridge Arsenal in Chantilly, Va., on Oct. 6, 2017. (Jim Watson/AFP/Getty Images)
Michael Clements

A lawyer who will argue the so-called “bump stock” case before the U.S. Supreme Court said there is much more at stake than a firearm accessory.

“This isn’t really a Second Amendment case,” Mark Chenoweth, an attorney with the New Civil Liberties Alliance (NCLA), told The Epoch Times. “This is an instance of an agency trying to do something without the authority of Congress.”

Cargill v. Garland is about the reclassification by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) of the bump stock. This device increases the rate of fire of certain semi-automatic rifles. From 2010 to December 2018, the ATF held that bump stocks did not convert rifles into machine guns and were, therefore, legal.

On Oct. 1, 2017, a killer used rifles with bump stocks to fire into concertgoers in Las Vegas, killing 58 and injuring hundreds in around 10 minutes. Then-President Donald Trump requested the ATF to reconsider whether the devices could be reclassified.

In 2018, ATF reversed years of written opinions—some issued in response to inquiries from members of Congress—and reclassified the devices as machinegun parts regulated under the National Firearms Act of 1934 (NFA).

Mr. Chenowith and others say the way the ATF made its ruling is more troublesome than the ruling itself. He said the administrative state has grown to such an extent that government agencies are making rules with the force of law at an uncontrollable rate, bypassing Congress and ignoring the Constitution.

“This [case] is about whether an agency has exceeded the authority that Congress has given it,” Mr. Chenowith said.

Even gun control advocates decried the ATF’s action as unconstitutional and fraught with possible legal problems.

The late U.S. Sen. Dianne Feinstein (D-Calif.) predicted the legal battle that is playing out.

“The ATF lacks authority under the law to ban bump-fire stocks. The ATF Association reiterated that ‘the law is very clear, and it does not currently allow ATF to regulate such accessories,” Ms. Feinstein wrote in a Dec. 2017 press release.

“If ATF were to change its view after a six-month review, lawsuits would be filed immediately.”

William Kirk, a Washington state-based attorney specializing in Second Amendment law, agrees. When the ATF announced the change, Mr. Kirk said the ban and rulings by other administrative agencies violated the separation of powers outlined in the U.S. Constitution.

“It’s literally an attack on the structure of how legislation in our country is meant to be done,” Mr. Kirk told The Epoch Times. “This doesn’t go just for the ATF.”

Mr. Chenowith pointed out that in the six years the NCLA has existed, presidents from both parties and agencies of all stripes have issued rules that infringed on individual rights and carried the possibility of depriving people of their property.

 The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) headquarters in Washington on July 24, 2023. (Madalina Vasiliu/The Epoch Times)
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) headquarters in Washington on July 24, 2023. (Madalina Vasiliu/The Epoch Times)

Mr. Kirk pointed out that agencies, from the Department of Education to the Environmental Protection Agency to the Internal Revenue Service, make rules and set policies that cost Americans millions of dollars annually while growing their political power. He doesn’t expect the federal agencies to give up their power easily.

Vaccine mandates, student loan forgiveness, and national eviction moratoriums are just some of the executive branch rules that have been overturned or curtailed by the courts, Mr. Chenoweth said.

According to Mr. Kirk, these legal rulings are a positive sign.

“We’re seeing (the courts) begin to put up barriers around all of these alphabet agencies,” he said.

In her 2017 press release, Ms. Feinstein recommended legislation to address whether bump stocks should be legal. She sponsored a bill to ban a variety of gun accessories, including bump stocks.

While he disagrees with Ms. Feinstein’s objective, when it comes to dealing with administrative power, Mr. Chenoweth agrees with her method. He said the solution is clearly defining the difference between administrative and criminal law and clarifying who wields each authority.

According to Mr. Chenoweth, only legislators can deprive citizens of their freedom or property, but only through criminal law.

Several state legislatures have banned bump stocks without serious challenges under the Second Amendment.

According to the website worldpopulationreview.com, Hawaii, California, Nevada, Washington, Vermont, New York, Massachusetts, New Jersey, Connecticut, Maryland, Delaware, Florida, and the District of Columbia ban bump stocks.

Mr. Chenoweth said Congress could do the same if that was the will of the people.

“If we’re going to deprive people of liberty, then Congress would have to be the one to write the laws to do that,” he said.

Michael Clements focuses mainly on the Second Amendment and individual rights for The Epoch Times. He has more than 30 years of experience in print journalism, having worked at newspapers in Alabama, Florida, Texas, and Oklahoma. He is based in Durant, Oklahoma.