Cargill, Forced Reset Triggers, and Heightened Scrutiny of ATF Regulation

This past June, the Supreme Court held in Garland v. Cargill that ATF’s regulatory ban on bump stocks—devices that allow semiautomatic weapons to be fired at a faster rate by harnessing the gun’s recoil—was invalid because it exceeded the agency’s statutory authority to regulate “machineguns” under the National Firearms Act (NFA).  Two recent opinions relying in part on Cargill demonstrate how that decision has been construed to demand a more probing judicial inquiry for any gun-related regulatory action.

Cargill was not a Second Amendment case.  Rather, the Court held only that ATF’s determination that a bump-stock-equipped rifle could fire more than one shot “by a single function of the trigger” was textually implausible because “a semiautomatic rifle will fire only one shot each time the shooter engages the trigger—with or without a bump stock.”  Finding its hands tied by the statutory text, the majority struck down ATF’s ban.  But on its face, the ruling appeared to be relatively narrow.  The Court differentiated “auto sears” and similar conversion devices that allow a shooter to fire multiple rounds with a single pull and hold of the trigger until ammunition runs out, citing an ATF ruling that categorized those devices as machineguns with approval.  In dissent, Justice Sotomayor noted that ATF has long classified forced reset triggers (FRTs), which “force[] the trigger back downward after the shooter’s initial pull,” as machineguns.  The majority in Cargill said nothing about FRTs but the issue came up at oral argument.  The government observed that at least one district court within the Fifth Circuit had already struck down ATF’s classification of those devices, and Cargill’s attorney referred to FRTs as a “harder case[] in the middle.”

Now, an additional district court has concluded that FRTs cannot be classified as machineguns under the NFA.  On July 23, Judge Reed O’Connor of the Northern District of Texas invalidated ATF’s classification of forced reset triggers in NAGR v. Garland.  Judge O’Connor relied heavily on Cargill.  Because an FRT merely re-sets the trigger back into a depressed state but does not actually force another trigger pull, the judge determined that an FRT does not allow for more than one round to be fired by a “single function of the trigger” under Cargill’s analysis.  And he emphasized that the Cargill majority focused on the mechanical operation of the firearm rather than the shooter’s actions.  Thus, the judge found that, “[l]ike bump stocks, FRTs do not enable a weapon to automatically fire multiple rounds with a single function of the trigger itself.”  And he distinguished FRTs from auto sears, which do “take[] over to retain and release the hammer for all subsequent shots so that [the] trigger functions only once in a string of automatic fire.”

The decision in NAGR is not all that surprising given the Court’s analysis in Cargill, its failure to endorse ATF’s treatment of FRTs, and earlier cases casting doubt on how ATF has classified those devices.  But the decision demonstrates Cargill’s potentially broad real-world impact.  There are a number of devices that can be used to increase the rate of fire of a semiautomatic weapon falling between bump stocks and auto sears.  The Court’s failure to specifically approve ATF’s classification of these devices as machineguns and its mechanically-focused analysis in Cargill both suggest that lower courts will take the decision as a signal to be highly circumspect of ATF’s regulatory authority in this area.

What’s more, the broader context of Cargill suggests that courts will feel compelled to rein in ATF regulation across the board.  Between April and June, the Court not only struck down ATF’s bump-stock ban but also granted certiorari in an administrative-law challenge to the agency’s restrictions on self-manufactured firearms and gun-assembly kits under the Gun Control Act, or GCA, in VanDerStok (a case that will be argued next month) and threw out the Chevron framework for judicial deference to agency statutory interpretation in Loper Bright.  These developments mean that courts across the country will almost certainly be giving closer scrutiny to administrative actions and especially those that relate to firearms. 

One major recent example is the Eighth Circuit’s August 9 decision in FRAC v. Garland invalidating ATF’s regulation of stabilizing pistol braces as short-barreled rifles under the NFA.  Interestingly, FRAC relied obliquely on Cargill but was primarily concerned with the process the agency used to classify certain stabilizing braces as NFA firearms, rather than with the authorizing statutory text.  The panel first relied on Cargill to determine that ATF’s 2023 Final Rule regarding stabilizing braces constituted final agency action subject to challenge under the Administrative Procedure Act despite being interpretive in nature.  (For more background on pistol braces, the ATF rulemaking process, and some of the initial litigation, see this earlier post by Alex Geisel.)  But the court then focused on ATF’s multi-factor test for categorizing certain braced pistols as NFA firearms subject to heightened regulation.  The panel found that “ATF [] articulated no standard whatsoever for determining when a stabilizing brace’s rear surface area would allow the shouldering of a weapon,” that ATF’s explanations of how brace marketing and use by the community would influence classification were “internally inconsistent” and illogical, and that slideshow examples of restricted braces lacked necessary explanation.  Thus, the panel held that the rule was arbitrary and capricious and granted injunctive relief.

FRAC demonstrates how, after Cargill and Loper Bright, ATF faces increased pressure both in terms of flexibility to interpret statutory language and judicial oversight of the rulemaking process.  What does this suggest for the Court’s approach to VanDerStok?  There’s likely a better textual hook for regulation of so-called “ghost guns” in the GCA (which includes in its definition of “firearm” devices that “may be readily converted” to perform the function of a gun) than for regulation of bump stocks under the NFA.  And, as I’ve written elsewhere, part of what may be driving the Court’s approach in these cases is a sliding scale where regulations enacted under very old authorizing statutes are treated with heightened skepticism.  In this vein, the GCA is relatively more recent than the NFA and may present fewer interpretive quandaries.  On the other hand, another piece of the story is concern about administrative overreach with regard to guns specifically—often using the Second Amendment as a background animating principle and focusing on the fact that much of ATF’s regulatory agenda contemplates potential criminal penalties for individuals who possess (or fail to properly register) prohibited guns and devices.

I believe some of these regulatory actions should have been accomplished through legislation—and I do not find current legislative gridlock a persuasive reason for courts to give ATF (or any other agency) a free hand to encroach upon legislative territory.  However, the Court’s approach may risk disproportionately rolling back agency power only in politically salient areas such as firearms where agency actions are more likely to be subject to vigorous legal challenge, thus creating inconsistency and uncertainty throughout the federal bureaucracy.  In a short dissent in FRAC, Judge Shepherd highlighted how the panel’s decision to grant injunctive relief may deviate from the typical approach in administrative-law challenges to agency action because—outside of the firearms context—courts do not typically enjoin agency action when that action has already been vacated in another case and there is no indication that the agency intends to enforce an already-vacated rule.  This may seem like a minor procedural point, but it suggests that courts are sometimes applying different approaches across different areas of administrative law depending upon the political salience of the conduct being regulated.