The Bump Stock Case Isn’t About Bump Stocks

On Wednesday, February 28th, the U.S. Supreme Court began to hear oral arguments in the case of Michael Cargill v. Merrick Garland, et al., commonly abbreviated to Cargill v. Garland or just Cargill. This case has its roots more than six years ago with then-President Trump directing the DOJ to crack down on the legal, ATF-approved accessories popularly known as “bump stocks.” As it has worked its way through the courts, the Cargill case has inspired well-deserved support from the rest of the Second Amendment community and increasingly unfriendly coverage from media outlets. Much of the reporting has focused on the factual issue of whether or not a bump stock fits the legal definition of machine gun by allowing a so-equipped firearm to discharge more than one round with a single function of the trigger. Although this and other factual disputes will be addressed in court, I contend that this issue really isn’t the most important part of the case.

Many landmark Supreme Court cases set precedent in an area of law totally divorced from the facts of the cases themselves, and Cargill will be no different. What’s really at issue here is two things: property rights and executive overreach.

The Fifth Amendment to the U.S. Constitution holds that “no person shall… be deprived of life, liberty, or property, without due process of law.” This excerpt, commonly referred to as the due process clause, provides a basic legal protection for the most fundamental rights in our society. The Bureau of Alcohol, Tobacco, Firearms, and Explosives had already issued Slide Fire Solutions a letter approving bump stocks for sale in 2010; by reneging, the Trump administration and the ATF made them illegal ex post facto. The mandate to surrender or destroy legally purchased property without a “grandfather clause” plainly constitutes a due process violation. Under the utilitarian principle of interest balancing, however, the Supreme Court may very well declare that any administrative action taken with the intent of enhancing public safety—even if unconstitutional and ineffective—may be legally permissible.

In addition to issues of due process and property rights, the upcoming Cargill decision may set precedent over legal processes and the separation of powers between parts of the government. The Administrative Procedure Act, originally passed in 1946, lays out the legal process for administrative rulemaking by executive agencies; it’s the reason why we’re allowed to tell ATF why what they’re about to do is stupid and illegal before they inevitably do it anyway. Unfortunately for us in this case, the Administrative Procedure Act sets a very high bar for judicial review of regulatory rulings. Furthermore, Chevron deference, named after the SCOTUS case that created the principle, tends to give a great deal of leeway to executive agencies when it comes to rulemaking.

If the Supreme Court decides in Mr. Cargill’s favor, it will reinforce Fifth Amendment protections and shift significant regulatory power from unelected bureaucrats to elected Senators and Representatives. Although the average legislator is arguably less intelligent and informed than the average executive regulator, and even less intelligent than the average American citizen, the possible negative consequences of striking down Chevron deference are likely a fair price to pay to get ATF to knock it off—if only for a little while.