B.L.U.F. Those scary ammosexuals want to go bang fast but that’s scary because going bang fast is scary. So let’s ban scary bump stocks and get taken to the Supreme Court for infringing on the core civil rights of The People

The question

This case is not a second amendment case though it is a constitutional case that impacts us. Mr. Cargill (good guy) is sueing to overturn the ATF’s bump stock ban. He is asking the court to determine if:

  1. Did the ATF violate Article I, §§ 1,7 and Article II §3 by amending congressionally approved statutes
  2. Did the ATF violate Article I §1 and Article II § 3 non-divestment
  3. Did the ATF violate Article I §1 and Article II § 3 separation of powers
  4. Did the ATF violate Article I §1 because they did not have the constitutional authority to ban bump stocks
  5. Did the ATF violate the Administrative Procedure ACT 5 U.S.C. §§ 706(2)(A),(C) by exceeding their statutory authority
  6. Did the ATF violate the Administrative Procedure ACT, 5 U.S.C. § 706(2)(A) by making an arbitrary and capricious rule

This was case was filed on March 25, 2019.

What this comes down to is that Mr. Cargill is asking to court to find the final rule banning bump stocks to be enjoined because the ATF did not have the authority to make that rule the way they did.

Cargill demanded a trial by jury but it looks like only a bench trial was granted.

District Court Findings

Entered November 23, 2020 the court found for the Defendants (bad guys).

When enacted in 1934, the final statutory definition of “machinegun” under the NFA excluded the 12-shot threshold originally proposed, but still included a prohibition on weapons “designed to shoot . . . semiautomatically.” National Firearms Act § 1(b).
Findings of fact and Conclusions of Law

This seems a little weird.

(b) Machine gun
The term “machine gun” means any weapon which shoots, or is designed to shoot automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the trigger.

26 U.S.C. §2733(b) – Definitions (1946)

Yep, the word “semiautomatically” does NOT appear in the current NFA but did in the original, it was removed with the 1968 GCA. The judge is quoting an older law, likely just to pull the word “semi-automatic” to the forefront.

The judge’s pull quote leaves out the “automatically” and he is clearly attempting to ignore what was intended at that time, a machine gun is a gun where you pull the trigger and it continues to go bang until you release the trigger or run out of ammunition. This is what the people of that time understood the definition to mean. One action of the trigger, multiple rounds down range.

The firing sequence begins when the shooter presses forward on the firearm to initially engage the trigger finger. (Dkt. # 57 at [82:25–83:3].) When this happens, the rifle slides back and forth and its recoil energy bumps the trigger finger into the trigger to continue firing until the shooter stops pushing forward with his non-shooting hand or the weapon runs out of ammunition or malfunctions. (See Dkt. # 54-5, Exh. G-8, AR000716, …
Findings ¶43

The judge got it wrong here. The recoil removes the finger from the trigger. The shooter then presses the firearm forward to fire the weapon again. At no time does the recoil force the trigger into the finger of the shooter.


The court found that the plaintiffs had standing and that the case could go forward.

The parties are correct that section 926(a) could have delegated broader authority to Defendants. But see Guedes I, 356 F. Supp. 3d at 128. Nevertheless—like every other court to have considered the issue—the Court still concludes that section 926(a) is a broad enough delegation for ATF to issue a legislative rule that fills gaps in the definition of “machinegun” under the GCA. “Because [section 926(a)] authorizes the [Attorney General] to promulgate those regulations which are ‘necessary,’ it almost inevitably confers some measure of discretion to determine what regulations are in fact ‘necessary.’” Nat’l Rifle Ass’n v. Brady, 914 F.2d 475, 479 (4th Cir. 1990) (Wilkinson, J.). Filling gaps for how to apply the terms within the statutory definition of “machinegun” to bump stocks is within the scope of this “measure of discretion” under section 926(a). See id.; see also Demko v. United States, 44 Fed. Cl. 83, 99 (1999) (recognizing ATF’s authority to classify a shotgun as a “destructive device” under another provision of the GCA); 83 Fed. Reg. 66527.
Findings ¶128

Here the court is saying that the ATF had the authority to issue the rule.

Normally I would find judgements against us to be moronic. This judge seems to have it together. He stretches but his reasoning is not bad. Sort of like RBG’s opinions. There were many times I disagreed with her opinion but she was one sharp lady and always found good reasons for her opinion supported in law.

All of this happened prior to Bruen so the fact that the court didn’t pull up the emotional blackmail was nice to not read. The original documents are not on CourtListener because nobody bothered to purchase them from PACER.

Appeal to Fifth Circuit Court

After the district court found in favor of the defendants, Michael Cargill appealed the the fifth circuit court. He filed on Dec 14, 2020 and there it sat for over two years.

On Feb 28, 2023 the Fifth Circuit court remanded the case back to the district court mandating reversal.

(note that we are moving back 2 years in the timeline)

On October 6, 2021, about a year after the appeal was filed, the case was heard before a three judge panel. That three judge panel affirmed the lower court’s findings. I.e. Cargill lost.

On Jan 28, 2022 Cargill petitioned for a rehearing en banc. The Fifth circuit agreed to rehear the case en banc on June 23, 2022. the is the same day that the Bruen decision was released by the Supreme Court. Maybe Bruen had something to do with the Fifth Circuit deciding to hear the case en banc.

Many many Second Amendment cases were put on hold when the Supreme court looked like they were going to grant certiorari on a Second Amendment case, first New York State Rifle and Pistol, Assc v. New York City and later when they granted certiorari to NYSRPA v. Bruen.

Finally, on September 13, 2022 the appeal was heard by the en banc Fifth Circuit court. On Jan 6th of 2023 the court reversed and remanded the case back down to the district court.

Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” set forth in the Gun Control Act and National Firearms Act.

But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability. A rich legal tradition supports the “well known rule” that “penal laws are to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–95 (1820). As Chief Justice Marshall explained long ago, the rule “is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.” Id. at 95.
Cargill v. Garland – Opinion USDC No. 1:19-CV-349

So the Fifth Circuit got it right.

There were dissenting judges and some that went along with the decision because of procedural issues but it was a win.

Back at the District Court

Remember that one of the reasons a case is taken to court is for the court to apply a remedy. That could be financial or other.

The district judge originally found for the state. The Fifth Circuit waited until guidance from the Supreme Court then Reversed and Remanded the case back to the district court.

The district court then found for the plaintiff and closed the case.

That’s it. The court gave no remedy. The court did not issue an Injunction stopping the state from continuing to infringe.

Sort of like the judge saying “You have been found guilty, in a court of law, of murdering seventeen cheerleaders. Have a good day.”

The judge did that one week after the Fifth Circuit reversed and remanded.

Mr. Cargill waited a few weeks and on March 28th, 2023 filed a motion for the court to amend the judgement to give him relief.

The state wasn’t happy with that. Having lost was a big thing. Having to “pay up” was worse.

To the Supreme Court

On Monday, April 4th, 2023, the state informed the court that they would be appealing to the Supreme court. They are asking the district court for a stay while the appeal is happening. Given this Judge’s current disgraceful conduct, it is highly likely he will grant that stay. He is likely to grant that stay without actually defining the relief.

Because there is currently a split in the Circuits, with some Circuits saying that the bump stock ban is constitutional and others saying it is not, these leads to unequal law.

The Supreme Court doesn’t like unequal law. Your rights are the same no matter where in the United States you might be. If one Circuit has ruled one way and another Circuit differently, then your conduct on one side of an imaginary line would be “legal” and on the other side of that imaginary line it would be “illegal”.

This means that there is a good chance that the Supreme Court will take this case up. It will be interesting to see what the question is, when it is taken up.

Spread the love

By awa

One thought on “Things that go Bump in the dark, <i>Cargill v. Burr</i>”
  1. That judges behavior is indeed annoying like a child being told do something they dont want to. So instead of getting it done they expand double or triple the energy doing EXACTLY what was said to a T instead of actually getting the chore done.

    Seeing it go to the supreme court would be interesting to follow.

Only one rule: Don't be a dick.

This site uses Akismet to reduce spam. Learn how your comment data is processed.