Courthouse Steps Oral Argument: Garland v. Cargill

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Emily Manning:  Hello everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning and I'm an Associate Director of Practice Groups with The Federalist Society. Today we're excited to host a "Courthouse Steps Oral Argument and Discussion on Garland v. Cargill." We're joined today by Stephen Halbrook. And our moderator today is Professor Robert Leider, Assistant Professor of Law at the George Mason University Antonin Scalia Law School. If you'd like to learn more about today's speakers, their full bios can be viewed on our website, FedSoc.org.

 

      After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today.  And Professor Leider, the floor is yours.

 

Robert Leider:  Thank you. Hi, I'm Robert Leider. Good afternoon. I'm an Assistant Professor here at Scalia Law School. And we're going to talk today about Garland v. Cargill.  So, this week, the Supreme Court heard arguments in that case, which involves whether bump stocks are machine guns under the Gun Control Act and the National Firearms Act. And so, bump stocks are devices that basically harness the recoil energy of the gun to very, very quickly reset the trigger of semi-automatic firearms. And what they do is they allow individuals who are shooting semi-automatic firearms to replicate the rates of fire of true, full, automatic weapons.

 

      And the question here is whether the devices qualify as machine guns under federal law. And, on this, the circuit courts were enormously split. Some judges thought that they clearly qualified under the statute as machine guns, because individuals only had to pull the trigger once, and then the gun did the rest to fire off multiple rounds. Other judges thought that the trigger reset, and that they were clearly not machine guns.

 

And there were judges who fell in the middle and thought that the statute was ambiguous as applied to these devices, which set off a second interesting jurisprudential split, with some judges saying that ATF's determination that bump stocks were machine guns was entitled to Chevron deference, and other judges saying, "No, this is a criminal statute and, therefore, the rule of lenity applies." And so, I think, to me, this case is fascinating because it comes at the intersection of administrative and criminal law.

 

And with me to discuss the case is Stephen Halbrook, who is a senior fellow at the Independence Institute. He's also an attorney in private practice, has extensive experience litigating gun control cases, and has written extensively in this area. In terms of litigation, he's argued three cases before the Supreme Court, including United States v. Thompson-Center Arms Company, which is another case that involved a classification under the National Firearms Act. It involved the intersection of Chevron deference and the rule of lenity, and, in terms of his academic writings, has just written a book, America's Rifle: The Case for the AR-15. So, Stephen, welcome.

 

Stephen Halbrook:  Thank you, Robert. Glad to be here. This is such an interesting case. All the definitions in the National Firearms Act of different kinds of restrictive weapons pose very interesting questions. But this is only the second civil case the Supreme Court has ever taken about those definitions. The first case was argued by myself in 1992, United States v. Thompson-Center Arms.

 

And that case had to do with whether a combination of parts that were intended to be assembled as a pistol or as a rifle with a long barrel was, actually, a short-barrel rifle because it could be assembled that way. And the Supreme Court held 5-4 that the statute was ambiguous and, therefore, the rule of lenity applied. And that was the plurality opinion by Justice Suter. Justice Scalia, joined by Thomas, did a concurring opinion. And that made the five saying that the statute was clear, you don't need to resort to the rule of lenity. But if it was unclear, they certainly agreed that it would.

 

Now, the rule of lenity goes way back in history. Blackstone's Commentaries talks about the fact that criminal statutes have to be construed strictly. So, if there's an ambiguity in a criminal statute, you interpret it against the government and in favor of the citizen, or, as Justice Gorsuch likes to say, "in favor of liberty." The funny thing about yesterday's argument, though, is that the rule of lenity wasn't mentioned once. Both sides were trying to convince the Court that the statute is crystal clear, the other side doesn't have a case, and there's no ambiguity and, therefore, there was no need to mention lenity. But I'm sure that it's going to be mentioned.

 

And the other strange thing about what happened with this case by the time it got to the Supreme Court, if you go back to the rulemaking, ATF claimed that it was entitled to Chevron deference. But the government dropped that argument like a hot potato early on in the litigation, I think, because ATF had consistently said bump stocks are not machine guns previously. And after the Las Vegas tragedy, the Trump administration told the Justice Department to adopt a rule, basically, saying that bump stocks are machine guns because of the potential use of machine guns in that tragedy. We don't really know the full facts of that because it's never come out.

 

So, what ATF did in this litigation was to say it's an interpretive rule, not a legislative rule. With an interpretive rule, it just tells you what the agency -- how they interpret a statute. But if it's a legislative rule, it's considered to be binding, and Chevron deference applies. I think, also, the government made a decision not to argue for Chevron deference because in another case before the Court right now, that doctrine is being questioned. And it may be either done away with or vastly curtailed.

 

So, what we end up with is the government basically saying a bump stock is a machine gun. And that's based on the clear language of the statute. A machine gun is defined, in part, as a weapon that shoots, automatically, more than one shot, without manual reloading by a single function of the trigger. And the parties have posed the terms "automatically" and "single function of the trigger" as the key terms here.

 

I write occasionally for the Volokh Conspiracy. It's a blog that's published by Reason magazine. And this morning's post, if you want to Google my name and Volokh Conspiracy, you might want to find it, because I've identified several videos that show you the contrast between an actual machine gun and a bump stock. The first video citation that I have there, it shows a person holding something like an M-16, a full-auto machine gun, in one hand, pulling the trigger, and it continuously fires without stopping. 

 

You could put it on your shoulder, but you're not making any manual movements. What you're doing is pulling the trigger. And that's all. So there's a single function of the trigger, and there's no manual movements. It's obviously automatic. In the next video, it shows a person with a bump stock. And the person tries to do the same thing. The person holds the bump stock with one hand, pulls the trigger, and how many times do you think it fires? Once, only once. Because there's something else you have to do to make a bump stock fire repeatedly. 

 

And that's that you have to put pressure on the forearm, or the handguard. So, your non-trigger hand has to put pressure continuously forward. And what happens is that the receiver of the gun rocks back and forth. You have recoil that operates it. And so, you have a combination of manual function, your finger stays on the trigger continuously, and it rocks back and forth. And that gives the illusion of full-auto fire. So, it's very quick. But you notice, going back to the definition "automatically more than one shot with a single function of the trigger," there's no reference to speed, or how quickly it fires, rate of fire.

 

There was a lot of discussion in yesterday's argument about rate of fire. But you could have a machine gun that only fires two rounds a minute. And if it fit the definition of "automatically more than one shot with a single function of the trigger" it would be a machine gun. So, you can get rate of fire out of your mind right away. In fact, when the deputy solicitor general began his argument, the very first two sentences of his argument show that we've got a manual movement going on when a bump fire is used to fire the weapon. 

 

Because, as he says, you have to pull the trigger, and then you have to put forward pressure on the hand guard and maintain that pressure. And if you let go of the pressure, it's going to stop firing. So, it's only firing one shot per function of the trigger. So, that's what a bump fire is. And when you get into the term "single function of the trigger," we got into what Judge Gorsuch described as "fifth-grade English, fifth-grade grammar."

 

And he said that you don't "function" the trigger. You don't use that term as a verb. You have a single function of the trigger.  But you can pull the trigger, and that's a transitive verb, if I'm getting this right.  But you can't use this terminology as a transitive verb. It doesn't make sense. Because the government wants to change "function of the trigger" to "pull of the trigger" so they can say that a single pull of the trigger by a human makes it a machine gun.

 

But the other side of that is a single function of the trigger seems to indicate the mechanical aspect where, for every shot, there's a single function of the trigger if it's full auto with continuous fire. And so, it boils down to, are we talking about a mechanical attribute, or are we talking about a human attribute? The government, in its rebuttal, cited Judge Ho from the Fifth Circuit, his concurring opinion.

 

And it was the wrong guy to cite, I think. Because he started out his concurring opinion with the rule of lenity. And he went on to point out how you could have these two different interpretations of the statute. And neither one of them is necessarily the case. And, therefore, the rule of lenity applies. You had, I think, eight members of the Fifth Circuit — and that was a plurality, it's a large court — said that, on the merits, a bump stock is not a machine gun. But when you add the concurring opinions with that, you have so many agreeing with the rule of lenity, if all else fails, then you have construction against the government.

 

It was kind of interesting. The government really liked the NRA in the argument yesterday. Because, in the 1934 hearings of the National Firearms Act, NRA President Karl Frederick, actually, he talked the House out of a really weird definition of a machine gun and drafted a more correct one, which did use the term "single function of the trigger." But, in discussing the 1934 legislation, he did refer to "pull the trigger." And so, the government wants to substitute what the NRA president said for the actual words that are used in the text of the statue, which I find rather humorous.

 

Now, on this issue of ambiguity and the rule of lenity, we have differences of opinion. There was a previous case decided last year, U.S. v. Wooden, where Justice Kavanaugh said that only if there's a grievous ambiguity do we apply the rule of lenity. And Justice Gorsuch said a reply to that, that if it's ambiguous, and you're subject to a criminal law, I don't care whether it's just ambiguous or grievously ambiguous. The law shouldn't be applicable to you.

 

So, once again, the rule of lenity wasn't mentioned in the argument, I know it's going to be mentioned in the opinion. You also have the issue of whether there's ever any deference to the government in a criminal statute. And in this case, this is a civil case. But it has criminal implications. That was also true in the Thompson-Center Arms case that I mentioned previously. If it's a civil case, but it's a criminal statute, you've got to apply the rule of lenity, if there's an ambiguity.

 

So, that's where we stood on some of those issues. Also, other devices were mentioned. There were some theoretical devices that were kind of hard to understand. But there were two, in particular, that are considered machine guns. And one was the so-called Akens Accelerator. And that was a device kind of like a bump stock, except that it had a spring that assists the going back and forth of the receiver when it fires. And so, it's got recoil-operated, but it functions automatically because of that spring. You don't have the human factor of having to continually put pressure on the fore end, or the hand guard.

 

And then, there's another device that was cited that was in the U.S. v. Camp case that came out of the Fifth Circuit a few years ago. And some fellow, very innovative, had rigged up a fishing reel somehow, on a rifle, and rigged that up to some kind of electrical source so that all he had to do was just start it and the gun would continuously fire. And I can't imagine exactly what it looked like. But that was held to be a machine gun. So, if you see the Camp case cited in the transcript of argument, that's what they're referring to.

 

And then there was some going back and forth between, particularly Kavanaugh, Gorsuch and the SG about, first of all, can you prosecute people for a bump stock when ATF said it's not a machine gun? For years they said that. And the government lawyer said, "Well, the statute of limitations is about to run, because it's been almost five years since the federal register implemented the final rule, and so I don't know of any prosecutions," he said.

 

And there's also the doctrine of entrapment by estoppel, which I was surprised to hear of. That's a doctrine that you might not be familiar with. If you're a criminal lawyer, you might be. And that's where, if a government official who's authorized to give advice on the subject tells you that something's lawful, and then it later turns out that the government doesn't consider it lawful, you can rely on that advice. And that's a defense to a criminal charge. Entrapment by estoppel is often pleaded, but not accepted very much in courts. But it is a recognized doctrine.

 

And so, the government lawyer in this case said in oral argument yesterday that, "Well, if they prosecute you, you can argue entrapment by estoppel if you were misled by the previous opinions." But then, how would you know, based on the fact that the ATF previously said one thing and now says something else? And the government lawyer said, "But you've got notice through the Federal Register." And so, Justice Gorsuch made a very funny comment, where he said, "Yeah, right. Gun owners sit around with their dog and their fireplace or whatever, sitting around late at night for relaxation reading the Federal Register."

 

We know that doesn't happen. There's plenty of people who don't have notice. And so, it was also brought up, what about the fact that, if you're in the Fifth Circuit, the Fifth Circuit ruled that a bump stock is not a machine gun? And the government lawyer said they can prosecute you anyway, because, by the way, they didn't enjoin the regulation. They didn't enjoin it. They didn't vacate it. And so, the regulation stands and you can prosecute people, like in Texas, for a bump stock, even though the Fifth Circuit said it's not a machine gun. So, those are some of the highlights. 

 

I mean, it was a really interesting argument. I love it nowadays that you can listen to it live. It used to be you had to go to the Court and they would give you a transcript weeks later. And they wouldn't even tell you which justice was asking which questions. And now you get the transcript the same day. So, why don't I close my open there, Robert, and see what we've got.

 

Robert Leider:  All right. Thank you. Arguments are interesting for different reasons. Sometimes there's a tremendous dispute on the law. Here, there was seemingly tremendous dispute just on the facts of how these things operated. How does a traditional automatic firearm operate? And the trigger on an automatic firearm, how does that differ from what is happening with a bump stock?

 

Stephen P. Halbrook:  Well, with a true machine gun, your finger pulls the trigger, and that's it. In the classical form, it just fires automatically until it empties the magazine. During the Vietnam era, the M-16 was first introduced then. And you had not much marksmanship. And so, you had the phenomenon of soldiers praying and spraying. So, they would just empty all their cartridges out of their magazine that way. And that gave rise to a selective fire design where it would only fire three times and then stop, and then you had to release the trigger and you could pull it back again. It would fire three more times.

 

And so, that's the way a machine gun fires. And, of course, if it fires three times automatically — without manual reloading — by a single function of the trigger, it's still a machine gun. It could even fire just twice and it would still be a machine gun because that's more than one. With a typical semi-automatic, you pull the trigger and then it fires. And that's it. You have to release your finger from the trigger. The trigger resets — in other words, goes back forward — and then you have to pull it again. So, there, you have one shot, one pull, one shot. 

 

And, by the way, there are some machine guns that you don't just pull the trigger, you push the trigger, like some of the heavy machine guns. You push with both thumbs. These would be heavy machine guns that are on tripods, for example, like the Maxim, or one of those. So, with the bump stock, there's kind of a bridge where the trigger is. And you pull the trigger back once and you maintain pressure on that bridge. But then you've got to maintain that forward pressure with the non-trigger hand on the handguard. And if you don't do that, it won't continue to fire. So those are the scenarios.

 

Robert Leider:  I've been trying to figure out some of the justice's questions, just to accord with basic principles of physics. Because one of the arguments that came up from the SG is there's no difference between maintaining the continuous rearward pressure that you would have to do with a traditional machine gun when you pulled the trigger — because if you release the trigger, the gun will stop — and the continuous forward pressure that you would have to do with a bump stock. And their argument was something like, "Well, when you pull the trigger on a bump stock, you only pull the trigger once."

 

But I don't know if that actually works, in terms of basic physics. Because my understanding — and perhaps you can comment on this — is that the way the bump stock works is you have to reset the trigger each time. And so, the trigger has to be disengaged, fully reset, and then fully re-engaged. And, I suppose, to do that, if you have a 6-pound trigger pull, your finger has to maintain 6 pounds of rearward pressure, as the bump stock drives the gun forward or your arm drives the gun forward, to re-engage the trigger a separate time. And so, it might be happening very fast.

 

But each time, your finger has to pull the trigger with sufficient force to re-engage the trigger on each shot, which I think is not true with a traditional machine gun. With a traditional machine gun, I think all you're doing is keeping, in essence, the disconnector out of the way. But I was wondering if you could comment on that.

 

Stephen P. Halbrook:  Right, Robert. So, you have, your finger is on the trigger. It pulls the trigger. And then your finger is resting on -- there's a couple of protrusions that come up. And when you fire that first shot, and while maintaining that forward pressure on the handguard, the trigger goes backwards, and then it comes forward again. And your finger actually pulls the trigger again.

 

And just by keeping your finger in that position, the trigger resets, comes forward, gets pulled again. Because remember the frame or receiver of the gun, the middle part, is going back and forth with each shot. And so, when you maintain the forward pressure, and then you keep your finger in that position, the trigger resets and fires more than once.

 

Robert Leider:  And so, one of the things I had difficulty with is that it might be happening very fast, but I think you are separately pulling the trigger each time. I mean, you have to, in essence. It's not quite the same as maintaining the rearward pressure. Let me move on with some legal questions. So, ATF here had reversed itself. It had, for years, said that these sort of bump stocks were not machine guns. And it had done so through a series of classification letters.

 

And one of my questions is, kind of more broadly, does ATF have an administrative law problem? It was, in essence, kind of engaging in legislative rules through classification letters. And my question is, what are these classification letters? And how does ATF traditionally regulate? Because it doesn't issue that many legislative rules, I don't think.

 

Stephen P. Halbrook:  Right.

 

Robert Leider:  How does the ATF regulate firearms?

 

Stephen P. Halbrook:  Right. If you're in a regulated industry, like a gun manufacturer, or if you're a person subject to prosecution, you want to know what the agency's interpretation of the law is, as applied to facts.  And so, the informal way to get a classification of ATF's opinion of the status of a firearm, for example, under the National Firearms Act, is through a classification letter. Now, when I did the Thompson-Center Arms litigation, we started with having lots of meetings with ATF, informal meetings. And we got letters, and then we got final decisions. And then we went to court.  And so, it works that way sometimes, if you move into litigation. 

 

But when you get an ATF opinion like these early opinion letters that a bump stock's not a machine gun, if you’re an industry, you're manufacturing bump stocks, or you're going to buy a bump stock, you can pretty much rely on those letters. People do rely on them. You can also have a formal process, which is called an ATF ruling. For example, after ATF said that an Akens Accelerator is not a machine gun, and changed their mind and said that it is a machine gun, they did a formal ruling, which is kind of like an IRS ruling where they give you their opinion of the subject.

 

Now, with a classification letter — informal, private or a ruling or an interpretive regulation — you'd better comply with what ATF says, because you're going to be subject to prosecution otherwise. It doesn't take a legislative regulation like the DC Circuit in the Guedes case said that "Well, ATF argues this is just an interpretative regulation. But it's really legislative, because if you don't do what they say, they're going to come after you." So, those are the different steps.

 

Now, one thing about ATF, and I think it says something good about ATF, up until this regulation — they never once tried to add to what Congress said, defining NFA firearms. They didn't do it in Title II of the Gun Control Act — that's the NFA — or Title I, which is regular guns. They have definitions in the regulations repeat what the statute says. And up until this incident, they never went beyond that language. And what they did here was to add to that definition of machine gun the partial definition I told you earlier.

 

And then there were some other ones where Congress revised the definition of machine gun in '68 and then, again, in '86. But up until this regulation, ATF had never done that. And I'm kind of proud of them for never doing that before because it showed that they understood their jurisdiction was limited to what Congress said. It's a criminal law. You can go to prison for a long time for a violation of the NFA, like, for an unregistered NFA firearm.

 

So, then they added this definition. And now they've done three more regulations where they're basically adding to what Congress has said in the Gun Control Act on definitions like, "framer," "receiver" and "pistols with braces," what it means to be engaged in the business, things like that. So, they've really gone overboard in this administration doing that.

 

Robert Leider:  Although, one of the things ATF has long been of the position is that you can't take an automatic firearm and lock it to a semi-automatic mode of fire, and it would take it out of the category of being a machine gun. That will not take it out of the category of being a machine gun. Is that right, that if you had an M-16 and you somehow locked it only to semi-automatic fire?

 

Stephen P. Halbrook:  Well.

 

Robert Leider:  Like the AR-15, I think they require it to be slightly redesigned.

 

Stephen P. Halbrook:  Oh, yeah. It had to be redesigned, back in the early '60s. I've got the original papers between Colt and ATF — it was not called ATF then, but it later was — but their predecessor agency, where they examined a different frame or receiver. It had to be redesigned so it wouldn't accept the automatic sear. It didn't have the auto sear hole drilled. And it didn't have the interior of the receiver milled out so you could put in an auto sear.

 

      And so, the industry has always worked with ATF in redesigning receivers. If it starts out to be a machine gun, or the other way around, there has to be different types of receivers there. So, you can use different parts. Some machine gun parts will fit in semi-autos. But they might be parts that have nothing to do with the full auto function. Like a bolt on an AR-15 is an example. So, yeah. The frames or receivers have to be separate because a machine gun is defined not just to include a weapon that shoots, but also one that's designed to shoot, or is readily restorable to shoot, or the frame or receiver of any such weapon.

 

Just a frame or receiver of a machine gun is a machine gun. And, therefore, you couldn't take a machine gun and try to do something to it. And you used the term "lock." But there is a precedent in the DC Circuit that I won against the ATF, Vollmer v. Higgens, which held that you could change a semi-auto receiver into a machine gun receiver and then weld it back into a semi-auto receiver. And, therefore, they rejected the idea, "once a machine gun, always a machine gun."

 

Robert Leider:  But the reason I'm asking is — to me, the elephant in the room — if they say that a bump stock is a machine gun and the AR-15 readily accepts the bump stock, could the Biden administration or a future administration come back and say, "Well, they're designed to be automatic weapons, because they are designed to accept the bump stock. And, therefore, all AR-15s currently in circulation are machine guns"?

 

Stephen P. Halbrook:  So, no, that's not going to happen. And here's the reason, is that all semi-automatics are capable of being converted into machine guns. That's why, in 1968, Congress added the definition of "any combination of parts designed and intended to be used to convert a weapon into a machine gun." And then, in '86, added a further conversion kit definition that says, "any single part designed and intended solely and exclusively to convert a weapon to a machine gun."

 

So, we know it's basic that a semi-auto can be converted into a machine gun with a conversion kit. But it's the conversion kit that's the machine gun, under that definition. It's kind of funny to talk about one little part as a machine gun, because it's not a weapon. But that's the definition. And so, some of the anti-gun lawsuits have sued the industry. And they try to say that "Well, this weapon, because it's an AR-15, you can convert it into a machine gun. Therefore, it's designed as one."

 

But that's not been accepted by the courts. And, certainly, ATF would not accept that. Congress defines semi-automatic in Title I of the Gun Control Act. And it's not a machine gun. Everything in ATF's history, in terms of differentiating between semi-autos and machine guns, recognizes that clear line of distinction.

 

Robert Leider:  It does. But let me push back a little bit on this, because when you deal with guns like the M-16, the ATF required them to be redesigned not to accept the full auto components before they would allow them on the civilian market. And if you're saying that the AR-15 with the bump stock is a machine gun, why couldn't ATF likewise require that the AR-15 be redesigned so that it's not capable of accepting a bump stock?

 

Well, notice that ATF has not required any semi-automatic to be redesigned, even though it may be capable of installing a conversion kit. And so, a bump stock, if it really is a machine gun, it's kind of the equivalent of a conversion kit, a machine gun conversion kit which is defined as a machine gun. So, this is a physical object that if you put it on a semi-automatic and it converts it into a machine gun, it's a conversion kit. But that doesn't make the original semi-automatic to be a machine gun design.

 

      And so, for example, there's a so-called drop-in auto sear for the AR-15, where you can install a certain part and you don't have to do any other work, any machining or milling to the receiver, for example. But you install this drop-in auto sear and it will fire full auto. But that's a conversion kit. And that's the machine gun. The machine gun is not the semi-automatic.

 

But look, Robert, you're right.  That's been alleged by the anti-gun litigants saying that. It came up in the litigation in Las Vegas. Lawsuits were filed by one of the anti-gun organizations. And they said, "Well, an AR-15 is a machine gun because you can use a bump stock. And this guy used bump stocks when he massacred those people." But that case got sidetracked because Nevada had preempted lawsuits against the firearm industry, where firearms work as designed. And so that got dismissed. But they're arguing that in other cases as well.

 

Robert Leider:  Yeah. I'm wondering if that's going to get traction, because ATF has required — I know the statute doesn't use the language of "readily convertible” — but ATF has required that semi-automatic versions of automatic weapons be designed in a way that they're not readily convertible. And so, if you have something like a semi-automatic copy of the MP-5 submachine gun, you can't just put -- I think the manufacturer makes a semi-automatic receiver for it. But you can't just install that. 

 

You have to have a different gun, I think, under the design prong. And I have wondered if something similar, if a similar move -- I don't think the administration is going to go there quite yet. But there's pressure because of the inaction of Congress to do more through administrative rulemaking. And I have wondered if that's going to be the next frontier saying that anything that can accept a bump stock is a machine gun. But another thing that didn't come up that I was surprised about --

 

Stephen P. Halbrook:  Can I just interrupt you right there? Just one point on that. ATF has taken action with -- there were guns that came on the market that were purportedly semi-automatic. But you could do one little thing to it, and it would become full auto. And so, ATF said, "Well, they might not shoot in the present tense automatically. But with a slight change they would. Like removal of a part, for example. And, therefore, we're going to say they were designed as machine guns. And so, they have done that through the ATF ruling process.  So, go ahead and ask your questions, Robert.

 

Robert Leider:  Yeah, that's why I'm wondering if a future ATF could come back and say, "Well, they're designed to accept a bump stock, so they are designed as machine guns." I guess we'll see what happens there. The other thing that didn't come up that surprised me a little bit is the amnesty provisions of the National Firearms Act, that one of the bugs that you could say about doing this through administrative rulemaking is that by defining them as machine guns, it ran into the Firearm Owners' Protection Act of 1986, which prohibited the new registration of machine guns.

 

      And, ordinarily if, for example, in the pistol brace rule, when ATF redesignates something, it often opens an amnesty so that those who have current devices can register them. And when Congress does this, like in the assault weapons ban of '94, it has grandfathered existing weapons. And here, AFT took the rather extraordinary step, not only of declaring them unlawful, but of actually confiscating those that were in current possession, with no provisions for an amnesty.

 

      And I was surprised — and maybe you can comment on — that no one brought this up, that by doing this through administrative rulemaking it sort of deprived Congress of the choice of how to classify them and how to handle existing weapons.

 

Stephen P. Halbrook:  Yeah, and it's, once again, the extension of a criminal statute by the agency, which they are not authorized to do. But if you go back to 1968, originally, there were just a few weapons that were NFA firearms, like a machine gun, short barrel shotgun, short-barrel rifle, things like that. But then, Congress added destructive devices, for example, and added some other items to the definitions of NFA firearms. And, therefore, Congress authorized — the Treasury Department at that time was in charge of ATF, not the Justice Department — authorized Treasury to conduct an amnesty for a certain period of time, which they did.

 

      And so, you could register not only the new firearms that were encompassed in the NFA, but you could register machine guns that were unregistered, and they were contraband, up until that point. Once they were registered, they were not contraband anymore. I would argue, if you look at the authorization given to the agency to conduct amnesties, I think they could do an amnesty now. They could do one in relation to the pistol braces, and that rule. They argue legally they cannot do it.

 

But I think that if you carefully read the amnesty power, it's never been repealed. And people have called for it a number of times, and particularly when something is considered to be an NFA item, and it wasn't before. But one way they've handled that, back in the Clinton administration, they redesignated certain 12-gauge shotguns as destructive devices. And they did allow them to be registered, just like they allowed, more recently, the pistol braces to be registered as short-barrel rifles. But I think they could declare an amnesty.

 

Or another power they have is to make a classification non-retroactive. That's through the traditional power of the Treasury Department to make tax categories non-retroactive. And remember, the NFA is part of the Internal Revenue Code. It's Chapter 53 of the Internal Revenue Code, based on the power to tax. That's how it's been upheld. So, there's a lot of flexibility there that could be done. And they refuse to do it.

 

Robert Leider:  Last question, and then I'll start doing the questions in the Q&A. And if you have questions, please put them in the Q&A and I will happily ask them. But another thing that surprised me about the argument that you mentioned was the absence of the rule of lenity but also the complete absence of Chevron, any mention of Chevron. And it's something about being at the Supreme Court that is giving me whiplash when you look at what's going on in the court of appeals.

 

In the court of appeals, the lower court judges are often saying, here and in other cases, the statute is ambiguous, and when the statute's ambiguous, we're going to defer to the expert agency. And then, all of a sudden, you get up to the Supreme Court, and you have justices who are conflicted about what the statute means. But none of them will say it's ambiguous. And none of them will defer. And so, Chevron's become something of a lower court doctrine in ambiguity and, with it, maybe rule of lenity.

 

But when you got up to the Supreme Court, they were pretty confident that the statute was clear, at least the justices that were talking. And some of them thought it was clear in favor of including bump stocks. Justice Alito maybe suggested it was clear the other way. He was getting a little more into the mechanics of it. But the Court seems to have a very narrow definition at the moment, as to what constitutes ambiguity. I was wondering what your thoughts were on that.

 

Stephen P. Halbrook:  Up until now, I've litigated a number of cases with ATF and, invariably, they appeal to what I call the divine right of deference. We had the divine right of kings, in the old days. And now, it's like, "We're the government, so we're right about what the law means." Up until this case, they've relied on that. And, as I mentioned earlier, they relied on Chevron deference in their commentary to the final regulations, in this case. Then they dropped that like a hot potato. But when it got to the D.C. Circuit, that court held against ATF's argument and said Chevron deference does apply, and it's really a legislative rule, not an interpretative rule. 

 

And so, yeah, they acted like the law was clear. But it got really muddied when you keep having references to "Well, it shoots fast, and it shoots lots of bullets." And none of that's in the definition. So, you have this, what is really the purpose of the statute? And they said, "Well, we're not relying on the legislative history. But we're using legislative history to show the meaning of the words in 1934."

 

And you have a lot of this piling on of either what could be considered deference, or the Church of the Holy Trinity case even came up where if the statutory text is clear one way, but it conflicts with Congress's purpose, then you go with Congress's purpose. And so, you've got these other doctrines swishing around and creating confusion. But the bottom line, when you get down to it, I think the text is pretty clear. And if you look at how these different kinds of firearms actually operate, I don't think there's any question.

 

There's one more part of the definition that the litigants had neglected here. And that's the part of the definition of machine gun which refers to "shoots automatically, more than one shot, without manual reloading by a single function of the trigger." I think they could have used, "without manual reloading" also, as part of the challenge. And here is why. When you maintain that forward pressure on the handguard, that's a form of manual reloading. If you don't do that, it won't reload.

 

And there's even discussion in the Federal Register about the fact the there are pump shotguns where you can pull the trigger and you continue to pump it. And it'll keep firing as long as you're pumping it. Now, with the bump stock, you're not making that big of a movement. But it's like you're pushing forward. And so, I think the litigants could have made that argument as well as these other arguments, in terms of the other definitions of a machine gun. Because there's more than one part to the definition: automatically, more than one shot, without manual reloading, by a single function of the trigger. 

 

Robert Leider:  I want to get to the questions here. In ten seconds or less, do you think “single function of the trigger” and “single pull of the trigger” mean the same thing, or mean different things?

 

Stephen P. Halbrook:  They mean different things.

 

Robert Leider:  Okay.  So, I'm going to do the questions, not necessarily in the order that they're here. But a question is, what do you make of Justice Kagan's reference to common sense over text?

 

Stephen P. Halbrook:  I'm sorry, but text is what governs. And every time I see the word "common sense," I'm thinking be careful, Achtung, beware.

 

Robert Leider:  I do think there's kind of a grain of truth in what she's saying. Sam Bray, who's a professor in Indiana, wrote a paper recently on the mischief rules, a principle of statutory interpretation. And I think what Justice Kagan might have been thinking about is the idea that these devices are really designed to circumvent the machine gun ban.

 

And since they are of the same mischief, one should interpret, if the text is designed to go after a certain mischief, if there is ambiguity, you should interpret the text to redress the mischief that they sought to remedy in the statute. Do these devices have any purpose, other than to, in essence, simulate automatic fire and evade the machine gun ban?

 

Stephen P. Halbrook:  The purpose is recreational and has to do with wasting lots of ammunition and not hitting many targets.  And so, I'm more of a purist. I think I like firearms to be accurate. But if people want to waste their ammo, that's all they've been used for, up until the Las Vegas tragedy. And you can't ban handguns just because there's lots of handgun violence. And, by the same token, this idea of "Well, we should bend the statutory language, or stretch it this way and that to encompass things it doesn't encompass," that's a problem.

 

Even Senator Diane Feinstein, she introduced legislation that would have redefined "machine gun" much more broadly. And she said you can't do this by regulation. It's got to be by statute. I testified against that legislation because it went way too far. It would have said that anything that increases the rate of fire of a firearm makes a semi-automatic a machine gun. And that would be, like, just a good trigger job could make it fire faster.

 

Robert Leider:  Do you think the Akens Accelerator is a machine gun?

 

Stephen P. Halbrook:  Well, ATF said it wasn't, at first. Then they said it was. 

 

Robert Leider:  I know. What do you think?

 

Stephen P. Halbrook:  I've never fired one. I'd want to experiment with it before I gave you a personal opinion.

 

Robert Leider:  Another person is asking whether mere possession of a bump stock or an Akens Accelerator is a violation of criminal law. And I assume, obviously, it's going to depend on how this case comes down. But assuming this case comes down against the challengers, what will that mean?

 

Stephen P. Halbrook:  So, right now, the Akens Accelerator is considered a machine gun by ATF. So, if you have one, get rid of the spring, or you could be prosecuted for it. If you get rid of the spring, it's a nothing. It's not considered restricted by ATF. And, in fact, when there had to be a recall by that company that made them, that was ATF's advice, was to get rid of the spring. And then it's not considered a machine gun. And, of course, depending on how this case goes, we'll see whether a bump stock is a machine gun or not.

 

Robert Leider:  If the Court says it's a machine gun, where do you think that's going to leave the pistol brace litigation?

 

Stephen P. Halbrook:  Well, every case is different, and they have different facts. And I think, with the pistol braces, I don't know if the Court's going to take that. And it could end up being something that's based on facts. Because there are some braces that are considered short-barrel rifles when attached to pistols, and some are not. 

 

I mean, ATF can bring prosecutions for what it considers short barrel rifles any time without its regulation and the new definitions in the regulation. And it would be improper in a jury instruction in a criminal case to read to the jury ATF's definition, because that goes beyond the statute. So, I don't know. If DOJ wins this, it might be an indication of what's to come with other NFA firearms. But we'll have to see.

 

Robert Leider:  Yeah. A related question. Do you think if ATF wins, do you think this is going to vastly expand the ATF and the Justice Department's power to reclassify weapons and create new classes of weapons?

 

Stephen P. Halbrook:  Well, sure it will encourage them, just like they've done the three new regulations that are very major. And in terms of technical definitions of firearms, the one on frames or receivers is just like a revolution in what these terms have meant since 1968. So, it will certainly encourage the agency, if they win this case.

 

Robert Leider:  Where is the Second Amendment in all this? That's another thing that didn't really come up. There was a brief question by Justice Kavanaugh. But where is the Second Amendment in all this litigation?

 

Stephen P. Halbrook:  Right. Justice Kavanaugh asked, "Why didn't you raise the Second Amendment?" to Mr. Mitchell, the respondent's attorney. And he said, "It wasn't part of the challenge, and we thought the text was so clear that we didn't see a need for it." And then he was asked, "Well, why didn't you argue avoidance of constitutional issues, the avoidance doctrine?"

 

And he said, "Once again, we thought, textually, we win. And, therefore, we didn't raise that." It would muddy the water to bring up the Second Amendment in that particular case. We've already got the Heller reference to dangerous and unusual weapons being banned, like M-16s. And so, if it really is a machine gun, according to Heller, you could ban it under the Second Amendment. So, I figured it was strategic, the challengers didn't recognize that as a viable argument.

 

Robert Leider:  Heller is purporting to do original public meaning, originalism. Do you think Heller's reference to dangerous and unusual weapons was a correct statement of the law?

 

Stephen P. Halbrook:  Well, it certainly appeared in the English common law. And it was repeated by the founders, Justice Wilson, I think, maybe St. George Tucker. I think it's a correct doctrine that's a traditional doctrine. The Second Amendment refers to arms. And arms are interpreted by Heller as those that are in common use for lawful purposes, or those that are typically possessed by law-abiding people for lawful purposes. And I think that takes care of most firearms.

 

Robert Leider:  Another question we have here is the justices didn't seem overly concerned with the mechanics of how the trigger operates. The statute, however, appears to regulate through a mechanical description. And there's some tension there. How likely is it the Supreme Court rules based on mechanical details, versus some legal doctrine like lenity or constitutional avoidance?

 

Stephen P. Halbrook:  Well, that's what's kind of — I don't know if I want to say humorous — about this case. But look, not all the justices know diddly squat about how firearms work. And these are really complex issues. Back when I argued Thompson-Center Arms, Justice Scalia stopped me earlier in the argument and said, "What does 22 rimfire mean?" Because I had mentioned 22 rimfire barrels.

 

And he knew exactly what it meant. But he knew that other justices up there, maybe some of them, at least, had no clue what I was talking about. And it made me think, by the way, "Hey, this is really easy arguing in the Supreme Court. I get to explain what 22 rimfire means." But, by the same token, some of the justices, they're talking about rate of fire and circumvention of the law and all of that. But I'm not sure if they have a clue what these words mean and how guns really operate.

 

Robert Leider:  Is that going to be a post-Chevron danger, assuming they overturn Chevron? One of the arguments for Chevron is that you commit these questions to the agency that does understand these things. And one of the things you notice from the argument was that they really didn't understand how the trigger worked or what the trigger did, or what the actual mechanical differences were between true automatic fire and bump stock fire. And is this going to be a problem if Chevron's overturned? Courts and judges who have no expertise in these sorts of things are now going to have to rule on areas that they don't really understand. 

 

Stephen P. Halbrook:  Well, that's the problem with all three branches of government. Had Senator Feinstein's bill been enacted into the law, it would have had quite a devastating effect on, basically, Americans being able to possess semi-auto firearms. So, I mean, Congress can make stupid mistakes. And the agency not only can make mistakes but can do things that the administration is ordering them to do, like in this very case.

 

Bump stocks were not considered machine guns by ATF. And the administration said, "Make them into machine guns." And they did. And so, yeah, you've got the possibility that judges might not understand either. But at least that's a check. So, I would err on the side of "Let's get the judiciary involved in their traditional function of deciding what the law means."

 

Robert Leider:  Another question we have is what do you think the chances are the Court's going to say that pulling the trigger with one hand versus pushing the gun forward is just a distinction without a difference? Therefore, bump stocks are just another way of doing automatic fire. I don't think anyone doubts, if sliding the forearm piece forward were the triggering device, and that unleashed automatic fire, I think that would clearly be a machine gun under the statute. So, what's the chance they could say this is just a distinction without a difference, the trigger is really two parts, at this point, or something like that?

 

Stephen P. Halbrook:  Yeah, I don't have any doubt some justices are going to say that. It will be either in the majority or it will be in a dissenting opinion. That's going to be said, and those hypotheticals got kind of hard to understand, like, '"What if we have a box and it's got these buttons to push?" And I couldn't visualize what they were talking about, necessarily. But I think there was a tendency to want bump stocks to be considered machine guns, and, therefore, we can think up ways in our opinion to make it sound persuasive that they are, under the text.

 

Robert Leider:  Yeah. I thought the government had some tricky questions here too. Somebody asked if you could use rubber bands to engage a bump firing sequence. And I guess they said that was still a single pull of a trigger. But they put the emphasis on, it has to be “automatically." And a rubber band is not automatic.

 

Stephen P. Halbrook:  Right. They said you could use a zip tie to pull the trigger back. But that was in regard to, I don't think bump stocks. Or maybe it was. 

 

Robert Leider:  Do you think just another kind of impending -- and this is my last question because we're just about out of time. So, we talked about conversion devices. And the other thing that's been in the news a lot are these so-called Glock switches, which I think are devices you can put in the back of the handgun. And I think it interferes with the operation of the disconnector, so it creates full automatic fire.

 

And apparently, Glock has looked at this and said they can't redesign the gun. Do you think, if ATF wins, that ATF might have more power here to force the redesign of guns that are easily convertible? I don’t know. Maybe that's a permutation of my AR-15 and bump stock question. But what do you think? Maybe I should ask more generically. Assuming ATF wins, what do you think the downstream effects of this will be?

 

Stephen P. Halbrook:  Well, just backtracking a little bit, the NFA doesn't include a readily convertible definition of a machine gun. It's got "readily restorable." So, if something was a machine gun and you got a little weld in it that you only need to knock off and it will fire automatically again, then it's still a machine gun. But the Glock example is a classic case of what's the difference between the pistol — which is a firearm, not an NFA firearm — and a conversation kit for a machine gun? That device that's attached to the Glock pistol is a conversion kit. And that's what's restricted.

 

And I'd like to see an agency try to say Glocks are machine guns, when they're not only one of the most popular pistols for civilians, it's the most popular pistol for law enforcement. And so, I don't foresee that happening, that Glock is not going to redesign these pistols and they're not going to be ordered to do it. There's no power that ATF has to do that. And I don't see AFT reclassifying the Glock as a machine gun because there is a conversion kit available for it because you can have a conversion kit for any semi-automatic firearm.

 

Robert Leider:  Last question. Let me ask it this way. What's your prediction for what the Supreme Court's going to do? And what do you think the downstream effects of the decision will be? Is this a one-off case? Or is this something that's going to stand firm?

 

Stephen P. Halbrook:  Yeah, I'm not going to make a prediction. I think it could go either way. I think there were strong arguments both ways. I come down on the side that a bump stock is not a machine gun. I think that's based on the text. You could have five justices think otherwise.

 

Robert Leider:  Do you think this will be a major case? Or just something sui generis?

 

Stephen P. Halbrook:  I think it's going to be major because it has to do with firearms technology. And this is coming from the Court, the Supreme Court. And we've got lots of firearms, lots of firearm designs. And whatever guidance the Court's going to give us, it's going to have a big ripple effect.

 

Robert Leider:  All right.  Well, thank you very much.  This was quite informative. And hopefully, we'll get to talk again after the decision comes down.

 

Stephen P. Halbrook:  Thank you, Robert. And thank you FedSoc for putting on this program.

 

Emily Manning:  On behalf of The Federalist Society thank you both for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, Fedsoc.org or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in. And, we are adjourned.