On September 7, 2021, the U.S. Navy-Marine Corp Court of Appeals unanimously ruled in U.S. v. Alkazahg, docket no. 202000087, that Private (E-2) Ali Alkazahg was erroneously convicted of possessing two unregistered machineguns – i.e. bumpstocks.
In so holding, the court reviewed the background to the rulemaking that held that bumpstocks were machineguns, and correctly explained:
[T]he President directed the Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF] to issue a new interpretation of a rule—that contradicted the ATF’s previous interpretation—governing legislation from the 1930s. This Executive-Branch change in statutory interpretation aimed to outlaw bump stocks prospectively, without a change in existing statutes
After extensively reviewing the history of bumpstocks, they emphasized that the ATF never considered bumpstocks to be machineguns until President Trump ordered ATF to reclassify them as machineguns.
It is of note that the court specifically mentioned the Guedes bumpstock litigation – which we’re currently litigating – and Justice Gorsuch’s “cautionary note” from the denial of certiorari that Chevron deference should not be provided to the Government in this context. A “cautionary note” that upon remand, the district court ignored. Nevertheless, this court, heeding the “cautionary note,” declared that
we are skeptical that when the judiciary interprets an ambiguous criminal statute it must defer to the judgment of the same executive who is prosecuting the defendant. This appears to undercut the bedrock concept of separation of powers embedded in our Constitution. The Framers were well-versed in the political philosophy behind separation of powers as expressed by Montesquieu, Blackstone, Locke, and even Aristotle. Historically, concentration of power is the death knell for self-government and liberty. We also doubt whether the Supreme Court has clearly told us we must defer to the Government’s view that Appellant has violated an ambiguous criminal statute just because it is the Government’s current “permissible” view
The court then went on to specifically declare that the statute was ambiguous because “by a single function of the trigger and “automatically” are both plausible interpretations of the statute, depending on whether it is shooter-focused or the mechanical reading. In relation to the phrase “by a single function of the trigger,” the court declared:
We conclude that when the statute uses the phrase “by a single function of the trigger,” it speaks to the mechanical actions, makeup, design, and attributes of the firearm itself, and includes modifications making the fire-arm operate precisely as a machine gun would under the statute. Here, the “function” of the trigger in a semi-automatic rifle, even with a bump stock attached, is to fire only a single round with each single pull of the trigger. But the “function” of the trigger in a machine gun is the mechanical process of firing multiple rounds with only a single pull of the trigger by the shooter.
In relation to the term “automatically,” the court declared
To us, the bump stock possessed by Appellant appears to be a “trigger activator,” albeit without the internal spring like the Akins Accelerator. Rather than an internal spring automatically assisting with firing after the shooter initiates the trigger function, this requires the shooter to have additional non-mechanical interaction with the weapon, which is still firing only a single round per function of the trigger, despite the “illusion of functioning as a machine gun.”
And lastly, based on the extensive arguments we’ve made in the Guedes litigation, the court reviewed the rule of lenity and declared:
We decline to step into the role of the legislature when the legislature has not been clear about whether Appellant’s conduct was criminal. Judge Henry Friendly described the rule of lenity as “the instinctive distaste against men languishing in prison unless the law-maker has clearly said they should.” Here, we express that distaste.
The court then went on to conclude
We conclude that Charge VII, Specification 1, by alleging Appellant’s possession of a bump stock violated the prohibition against possessing a “machinegun” as defined under 26 U.S.C. § 5845(b), fails to state an offense punishable under the UCMJ. Accordingly, we determine the finding of guilty for this offense is not correct in law and fact and must be set aside and the specification dismissed.
If you appreciate this information and are in a position to donate to the fight in Guedes, you can make a tax-deductible donation to support Firearms Policy Coalition’s and Firearms Policy Foundation’s lawsuits. For more information about the Guedes case, you can find it here.
If you or someone you know has been the victim of an unlawful prosecution for possessing a bumpstock, contact FICG today to discuss your options.
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