SCOTUS Decisions on Private Sales, Pistol Braces, and Bump Stocks Confirm Rules Don’t Trump Law

by Tommy Grant

Three Rules enacted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were thwarted by court orders in recent weeks. Federal courts in Texas blocked licensing restrictions on private sales in State of Texas v. BATFE, and a Rule redefining pistol braces as restricted National Firearms Act (NFA) weapons was vacated in Mock v. Garland. While the Justice Department is sure to appeal the licensing and pistol brace setbacks, the big win for gun owners was the United States Supreme Court’s (SCOTUS) 6 -3 ruling in Garland v. Cargill that “ATF exceeded its statutory authority by issuing a Rule that classifies a bump stock as a ‘machinegun’.”

“Michael Cargill surrendered two bump stocks to ATF under protest. He then filed suit to challenge the Rule under the Administrative Procedure Act,” the majority opinion written by Justice Clarence Thomas explained. “As relevant, Cargill alleged that ATF lacked statutory authority to promulgate the Rule because bump stocks are not ‘machinegun[s]’…” 

Proponents of the ban missed the point, whether due to ignorance or disingenuousness being irrelevant. 

“When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck,” Justice Sonia Sotomayor wrote in the dissent. And anti-gun Sen. Chris Murphy added to public confusion even more by telling CNN’s State of the Union that the Supreme Court was “ready to fundamentally rewrite the Second Amendment,” even though Cargill was not a Second Amendment case.


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Arguably, the biggest surprise came from Justice Samuel Alito, once disparaged by opponents to his confirmation as “Machine Gun Sammy” due to a prior ruling that federal regulations on machineguns were unconstitutional because Congress had failed to prove an impact between intrastate possession and interstate commerce. He joined with the majority, but nonetheless felt compelled to offer a significant concession.

“There is a simple remedy for the disparate treatment of bump stocks and machineguns,” Alito wrote.  “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.”

Left unsaid is where Congress derives such authority in the first place, as the power to regulate and ban arms is nowhere delegated to it in the Constitution. The only clear mandate is “the right of the people to keep and bear arms shall not be infringed.” By any branch of government.


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Never ones to let that stop them, Senate Democrats tried Tuesday to fast track a bump stock ban under unanimous consent, a procedure that requires everyone agree. It failed as planned. The transparent purpose was to be able to point fingers at Republicans voting against it and use that in the months leading up to the November elections while complicit media stands by to connect bump stocks to horrific crimes. And that’s already started, with an NBC News commentary masked as straight news that tied the SCOTUS bump stock decision in with three mass shootings that did not involve the devices. 

Firearms News readers may be interested to know that the magazine has connections with the Supreme Court decision. Field Editor Patrick Sweeney’s articles provided information used by Thomas in his opinion, specifically on pages 8 (“Gunsmithing the AR-15,” pg. 131, and “Gunsmithing: Rifles,” pg. 269), 10 (“Gunsmithing: Rifles,” pg. 269), and 11 (footnote, Gun Digest Book of the AR-15, pg. 38). Additionally, colleague and advisor Len Savage’s analysis was the genesis of the argument used on pg. 16 that “a semiautomatic rifle with a bump stock is indistinguishable from another weapon that ATF concedes cannot fire multiple shots “automatically”: the Ithaca Model 37 shotgun.” 


About the Author

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.


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