In Garland v. Cargill, the U.S. Supreme Court held in a 6-3 decision that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority in issuing a final rule that classified bump stocks as machine guns.
Assessment of this common-sense opinion must start with a review of the National Firearms Act, which defines a “machine gun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The definition also includes “any part designed and intended solely and exclusively… for use in converting a weapon into a machine gun.”
In contrast to a machine gun, which can fire multiple shots when its trigger is engaged once, a semiautomatic firearm can fire only one shot per trigger engagement. There are shooting techniques, however, to increase the rate at which semiautomatic firearms can be fired.
One technique is “bump firing.” When bump firing, the shooter keeps his trigger finger stationary, while allowing the recoil energy from firing the gun to push the gun backward quickly and reset the trigger. Simultaneously, the shooter applies forward pressure on the gun with his non-trigger hand to “bump” the trigger into his still-stationary trigger finger, which fires a subsequent shot. When done effectively, bump firing allows semiautomatic firearms to fire at rates approaching machine guns.
A bump stock is a device that makes bump firing easier. Importantly, even with a bump stock, the Court noted that “as with any semiautomatic firearm, the trigger still must be released and reengaged to fire each additional shot.” Moreover, bump firing—with or without a bump stock—requires significant manual input from the shooter.
Reflecting these facts, in ten different letter rulings from 2008 to 2017, ATF concluded that bump stock-equipped rifles are not machine guns, for the simple reason they cannot “automatically” fire multiple shots “by a single function of the trigger.” In 2018, however, after the U.S. Congress declined to adopt legislation following a mass shooting in Las Vegas, ATF reversed course and promulgated a final rule classifying bump stocks as machine guns. The rule states that “the term ‘automatically’” in the NFA “means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and ‘single function of the trigger’ means a single pull of the trigger and analogous motions.” Furthermore, the ATF stated that the “term ‘machine gun’ includes a bump-stock-type device.”
Michael Cargill, a gun advocate and gun shop owner in Texas, challenged this rule, claiming that under the Administrative Procedure Act the ATF exceeded its authority because bump stocks are not “machine guns” under the statute. After an en banc U.S. Court of Appeals for the Fifth Circuit ruled in Cargill’s favor, the Supreme Court agreed to hear the case.
The Court applied common sense to the question presented and held that a bump stock-equipped semiautomatic rifle is not a machine gun.
First, the Court noted that a firearm equipped with a bump stock “does not fire more than one shot ‘by a single function of the trigger,’” because even with a bump stock, “a shooter must release and reset the trigger between every shot.” Indeed, as the majority opinion reasoned, “a bump stock merely reduces the amount of time that elapses between separate ‘functions’ of the trigger.”
Second, a bump stock-equipped rifle does not fire “automatically,” because “the shooter must do more than simply engage the trigger one time.” Specifically, the shooter must “actively maintain just the right amount of forward pressure on the rifle’s front grip with his non-trigger hand,” requiring the shooter to exert manual input.
The Court also rejected the government’s nontextual argument that bump stocks should be considered machine guns because, otherwise, machine-gun restrictions would be rendered ineffective since offenders could instead acquire bump stocks: “A law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest,” the Court explained.
It further remarked that “it is difficult to understand how ATF can plausibly argue otherwise, given that its consistent position for almost a decade in numerous separate decisions was that” bump stocks are not machine guns.
By invalidating ATF’s final rule, the Court reinforced the fundamental principle that executive branch agencies cannot create laws; they may only enforce them. As Justice Samuel Alito explained in a concurring opinion, the statutory text of the NFA is clear, so any change to the law must come from Congress.
In addition to invalidating the final rule restricting bump stocks, the Cargill opinion is likely to have other far-reaching implications.
By making clear that ATF cannot simply rewrite statutory language it wishes was broader, Cargill casts doubt on other ATF rules. In recent years, ATF rules have redefined unfinished frames or receivers as firearms, redefined what constitutes a short-barreled rifle, and redefined what constitutes being “engaged in the business” of dealing in firearms. All these rules, like the rule re-classifying bump stocks as machine guns, not only change but contradict Congress’s clear statutory language. The Cargill decision, therefore, signifies that ATF exceeded its authority by enacting those rules as well.
In addition, both the majority and dissenting opinions in Cargill emphasized the difference between machine guns and semiautomatic firearms. Some lower courts have upheld prohibitions on certain semiautomatic firearms (repeatedly deemed “assault weapons”) by equating them with machine guns. Cargill, however, undermines this rationale by making clear that there are critical distinctions between such types of firearms.
Thus, while Cargill ensures that fundamental Second Amendment rights are not subject to the whims of unelected bureaucrats at ATF, the decision would appear to provide legal ammunition with which to challenge abuses of regulatory power by many other departments and agencies.
On Monday, Kimberly Cheatle, the now-former Director of the U.S. Secret Service, “testified” (I use the term loosely) publicly before the House Committee on Homeland Security. Unsurprisingly (to me, at least), the lengthy session produced not a shred of evidence not previously known to the public. The only surprise at the end of the day was that some members of the committee actually appear to have expected otherwise.
At least some members of the Committee on both sides of the aisle seem to be unfamiliar with one of the foundational principles on which governments (including our own) operate: bureaucracies are designed and operate in such a way as to avoid accountability.
This is hardly breaking news. The National Academy of Public Service has published extensively about the “culture of unaccountability that hampers the government’s operations.” Congress has considered “reviving” the Constitution’s Appointments Clause to force presidential appointments to be more accountable. Yet the U.S. Supreme Court in recent years has tightened – not relaxed — standing requirements that must be met in order to hold government officials accountable by court action.
I learned this lesson in unaccountability in 1995, during my first term in the House. Nothing I have seen since has changed my opinion about government aversion to accountability.
The context in which the immutability of government un-accountability came clear to me was the series of hearings in which I participated in Spring 1995 to investigate the tragedy two years prior at the Branch Davidian compound in Waco, Texas; a tragedy of horrendous proportions during which four federal law enforcement officers and more than 70 civilian men, women, children, and babies perished in a completely avoidable fiery conflagration at the end of the nearly two-month long stand-off.
The Waco Tragedy occurred during the administration of Democrat President Bill Clinton, with Attorney General Janet Reno in charge of the Department of Justice. In an effort to learn why and how such a tragedy happened – and to try and assign a degree of accountability to those responsible – newly elected Republican Speaker Newt Gingrich directed that the House conduct a serious inquiry; which we did.
The hearings consumed many days, during which we questioned dozens of witnesses from several federal law enforcement agencies, the U.S. military, state law enforcement agencies, Branch Davidian survivors, non-governmental organizations, and others. The resulting, lengthy report detailed the many mistakes made by those in charge of the operation, including by the Attorney General herself, and which answered many – but not all – of the questions surrounding the tragedy.
At the end of the day, one fact stuck out like a sore thumb – not a single person at the FBI (which was the lead agency on the ground in Waco) or up the chain of command at the Department of Justice was disciplined (much less fired) for errors in judgment or for what to me were clear violations of federal regulations and law (such as the Posse Comitatus Act). In other words, zero accountability.
If the Attorney General, the director of the FBI, and the several heads of other federal agencies involved in the Branch Davidian operation can escape accountability for needlessly causing the deaths of dozens of men, women, children, and babies, it should surprise no one that the U.S. Secret Service can avoid being held accountable for a single missed sniper attack on one presidential candidate.
Most Americans have no idea of just how many layers of bureaucracy exist in any agency or department of the federal government, with every layer creating one more hurdle to overcome before any meaningful degree of accountability can be found for an unlawful or irresponsible action that results in loss, harm, or even death.
The Secret Service, is a component of the truly massive bureaucracy known as the Department of Homeland Security, currently led by Alejandro “the-border-is-secure” Mayorkas. The organization chart for the Secret Service itself reflects an even more complicated roadmap than that of the FBI, which historically has served as a model for an agency wrapped in unaccountability.
Yes, Kimberly Cheatle did resign Tuesday from her post atop the Secret Service. This is, however, a largely symbolic move and will not by itself solve the myriad problems within the agency she headed. Addressing these systemic problems will require something the Congress historically has not often displayed – a penchant for hard work and a focused effort over many months.
Bob Barr currently serves as President of the National Rifle Association. He represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
It has been two weeks since U.S. Surgeon General Vivek Murthy issued a public health advisory on what he declares to be the latest “public health crisis” in America.
An “Advisory” issued by the Surgeon General is supposed to be employed when, in the learned opinion of that official, the American people must be made aware that they face an urgent public health issue, in other words, an “emergency.”
Unlike his predecessors, who employed the bully pulpit of their office to crusade against arguably public health-related issues such as smoking and AIDS, Murthy’s June 25th “Surgeon General’s Advisory” has nothing to do with any reasoned or common sense definition of health. It does, however, have everything to do with politics; in this case, the one policy issue liberals invariably turn to as a way to rally their base — gun control.
Murthy dutifully declares “firearm violence” the latest and most urgent “public health crisis” facing our country; not heart failure, not cancer, not obesity, but guns. In doing this, he cheapens the role and responsibility of the nation’s preeminent public health official.
Much of the mainstream media was breathless in drawing attention to the Surgeon General’s call to action against the scourge of violence committed by individuals misusing firearms. CNN, for example, lauded Murthy at length for joining the gun control hallelujah chorus. MyChesCo called it a “Landmark Step.”
The partisan, political perspective unsurprisingly reflected in CNN’s article praising Murthy’s gun-control missive was obvious in the video placed atop the opinion piece – a photograph not of the Surgeon General but a video of President Biden.
There has been little public discourse spawned by the firearms violence advisory since its unveiling in June, for the simple reason it offers nothing new. Rather, it repeats the same talking points gun control advocates have urged for years — too many guns in America and the need for more laws restricting their availability and possession.
Despite the document’s veneer of approaching the “generational” public health crisis of gun violence, it is nothing more than the same, tired recitation of control measures pressed by the gun control movement for decades — including banning “assault weapons,” instituting “universal background checks” and mandating firearms lock boxes. Nothing, incidentally, about stronger and more effective enforcement of laws on the books against the criminal misuse of firearms.
The report employs a sleight-of-hand used by political advocates on all sides of any issue — using statistics to bolster their argument. At one point early in his discourse, Murthy declares that some 60 percent of adults “worry ‘sometimes’” about “firearm violence.” Wow – learning that a majority of people at some point in their lives “worry” about firearm violence really moves the public health debate forward. Perhaps equally insightful is Murthy’s unveiling to us that “[a]ttempting suicide by firearm is almost always an irreversible act.”
Suicide and “mass shootings” (to which Murthy also devotes significant attention) certainly are matters deserving of our attention and of taking steps to reduce, but placing such tragic events under the jurisdiction of the Surgeon General as the basis on which to advocate a political gun-control agenda adds nothing of positive note.
Perhaps hidden somewhere in the bureaucratic gobbledygook found throughout the Surgeon General’s Advisory, including his call for something he refers to as “behavioral threat assessment and management (BATM) teams,” one might discover meaningful solutions to firearm-related crimes (of which there in fact are far too many in contemporary American society). But my careful read of the 39-page report revealed none.
Not surprisingly, Murthy concludes his advisory by likening the war against firearm violence in this third decade of the 21st Century to those launched by his predecessors decades earlier against cigarettes and in support of safer automobiles; in other words, treat firearms as just another “consumer product” that can be restricted by regulations and laws.
Unsaid, of course, in making such a comparison, is the fact that nowhere in the Constitution are there to be found explicit prohibitions on government restricting cigarette smoking or forcing automobiles to be made safer. There is, of course, such a limitation against government infringing the right to “keep and bear arms,” which may account for the Surgeon General’s advisory failure to mention the Second Amendment in his report, even as a footnote.
Bob Barr currently serves as President of the National Rifle Association. He represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
With days and weeks filled with law practice, political goings on, serving as President of the National Rifle Association, and other issues relating thereto, I find myself, like many of my colleagues, with little time for matters of the mind. I was, therefore, extremely grateful to a friend who last week invited me to a celebration in New York City for the unveiling of one of the most beautiful works of religious art I have ever seen – the Ark of the Covenant constructed as close as humanly possible to its biblical criteria and dimensions.
Being able to view up close this astonishingly beautiful and gold-laden artifact was itself worth the visit to the Big Apple. It was, however, the speakers that made the evening event truly valuable.
Many of the presenters, including a number of Rabbis and biblical scholars, amongst who was Christian Coalition founder and current chairman of the Faith and Freedom Coalition, Ralph Reed, were (at least in my experience) more inspiring and thought-provoking than any presentation or essay by a political leader in the modern era (with the possible exception of several speeches by Ronald Reagan, including his second inaugural address describing the “American Sound”).
It was truly invigorating to step back from politics and controversies of the day and cogitate for those few hours on matters of import that far transcend such current events in importance to each of us as individuals as well as to our country. The closest in oratorical proximity to politics that figured into last Wednesday evening’s celebration came in the form of thanksgiving to the United States of America, especially in its support for the creation of the State of Israel 76 years ago; support that has continued every year since then to the present, and particularly the bold decision by President Trump to ignore naysayers and doomsayers in his Administration and move the American embassy from Tel Aviv where it always had been, to Jerusalem.
More broadly and historically meaningfully, speakers offered heartfelt praise for the United States, primarily because of the uniqueness of our having been founded as a country in which civil power resides ultimately in the people. Indeed, as per the recipe for self-governance set out in our founding documents – the Declaration of Independence, the Constitution, and the Bill of Rights — the American people possess the power to change not only the participants in government, but the government structure itself if it is deemed to have failed in fulfilling its core mission to protect individual liberty.
Such positions were enunciated clearly and proudly by Rabbi after Rabbi, and seconded by a former U.S. ambassador to Israel and by Ralph Reed, whose 15-minute presentation illustrated why he remains, nearly three decades after founding the Christian Coalition in 1995, a highly sought after speaker at major events across the political and religious spectra.
As noted correctly by more than one speaker at this event, our Founders drew on their knowledge of civic, political, and government history in fashioning the tripartite and representative-based system under which the United States now operates, yet which too few of our countrymen fully comprehend. One of those early systems of civic and political engagement understood by the likes of Thomas Jefferson, James Madison, and Thomas Paine, among others, was that of the Israelites is seeking their freedom from Egyptian despots, and establishing the norms whereby citizens could, and should, govern themselves according to ethical and moral standards established by their Creator.
That both the United States of America and Israel today — many centuries after the Jews carried the Ark of the Covenant into battles to preserve their freedom, and a mere 233 years since our Bill of Rights was ratified — remain true to that moral heritage is a continuing testament to the virtues espoused by our Founding fathers and to one of their mentors, Moses. Lest We forget.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
I recently returned from the National Rifle Association’s (NRA) 153rd annual meeting in Dallas, Texas, an event at which hundreds of retailers and manufacturers of firearms, firearms accessories, archery equipment and camping gear set up shop and attracted more than 72,000 visitors, including many families with children of all ages. As was the case at every NRA annual meeting I have attended since becoming a Board member in 1998, the overarching theme was safe and responsible use and ownership of firearms.
On Monday, May 20th, immediately following the annual meeting and exhibit hall, I was elected by the 76-member Board of Directors to serve as NRA President for the 2024-25 year. I accepted this honor at a time of great challenge and opportunity for the NRA and its more than four million dues-paying members — also recognizing that every year is one of challenge and opportunity for the NRA.
The fact is, when it comes to defending the Second Amendment (and indeed, all the rights guaranteed to us by our Bill of Rights), our opponents never sleep, and a win one day is guaranteed to be followed by another challenge the next. Thus it has been since the founding of our great nation.
Thankfully for freedom-loving and law-abiding citizens, just as our adversaries never sleep, neither does the NRA in confronting challenges in the legislative, legal and regulatory arenas. And, since the turn of this century, those challenges have come also from the United Nations and other international organizations.
Here at home, the recent prosecution of former President Trump by Manhattan District Attorney Alvin Bragg illustrates the manner by which our heretofore “blind” criminal justice system has been employed as a cudgel to attack political opponents. The NRA was similarly targeted by New York’s state Attorney General Letitia James, who promised as a candidate in 2018 to go after the NRA, which she considered a “terrorist organization.” Ever since then, she has used the power of her office to wage a multi-year war against the NRA.
With the support of millions of NRA members and a team of crack lawyers, the Association has proactively and successfully withstood such legal challenges, even as we have managed to advance gun rights, self-defense laws and hunting opportunities in states across the country.
The NRA has led the way for passage of constitutional carry – the gold standard in self-defense laws outside the home — in 29 states. Perhaps surprising to some observers, most of those states passed constitutional carry since 2018, when the organized campaign to put the NRA out of business began in earnest in the New York courts.
Whether through landmark Supreme Court cases or strategic litigation at the state level, the NRA has consistently demonstrated its commitment to upholding the Second Amendment as a fundamental civil liberty. The NRA shepherded two major Supreme Court cases just in the last three years: the consequential 2022 Bruen decision and the very recent, seminal NRA v. Vullo First Amendment decision that showed clearly New York’s attacks against the NRA were indeed politically motivated.
The Vullo decision, by a unanimous Court, assures that organizations of whatever political stripe or mission are shielded from government officials abusing their regulatory powers to silence those it regulates because it disagrees with their viewpoint.
As I assume the presidency of America’s oldest civil liberties champion, I am reminded that the right to keep and bear arms remains always under threat by those in power seeking more of it by depriving the citizenry of vital individual freedoms.
When I was first sworn into the 104th Congress in January 1995, our Second Amendment rights were under direct assault by then-President Bill Clinton’s gun-control agenda, which had been supported by the previous Congress under Democrat rule. Now, one generation later, another Democrat president is using the power of that office to weaken those same rights through executive actions wielded both directly and indirectly.
When it comes to the Second Amendment, the more things change, the more they remain the same.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.