Though for how long is anyone’s guess. After the Fifth Circuit Court of Appeals struck down the ATF’s administrative ban on bump stocks, the Department of Justice had until last Monday to appeal the decision to the Supreme Court. But after the DOJ failed to do so the Fifth Circuit’s order took effect, and that means that in Texas, Louisiana, and Mississippi bump stocks are now once again available for purchase.

The DOJ can still appeal to the trial court to re-instate the ban since the Fifth Circuit remanded the case back to U.S. District Court in Texas, but its still worth noting that Merrick Garland and company chose not to ask the Supreme Court to consider the issue, which would have been the next logical step in the appeals process. Garland may have made the calculation that it’s better to keep this decision confined to the Fifth Circuit’s jurisdiction for the time being rather than risk the Supreme Court agreeing with it and overturning the ban on a nationwide basis. We’ve seen gun control activists use this strategy before when it comes to concealed carry, with Democrats in Illinois and Washington, D.C. choosing to accept appellate court defeats and placing the cases out of reach of the nine justices. That strategy was only successful as a delaying tactic, with the Supreme Court invalidating “may issue” laws last summer, but playing keep-away from SCOTUS is probably the most viable option for anti-gunners at the moment.

Austin, Texas gun store owner Michael Cargill, who filed the lawsuit heard by the Fifth Circuit, says he plans on carrying bump stocks at his store soon. But as the Dallas Morning News notes in their coverage of the DOJ’s decision not to appeal the Fifth Circuit’s decision, this case is about far more than the bump stocks themselves.

Cargill’s case could have implications beyond the Second Amendment, because it could hinge on a Supreme Court doctrine that courts should defer to the agency in charge of enforcing a particular statute as long as its actions are reasonable.

That doctrine, from the 1984 ruling in Chevron U.S.A., Inc. vs Natural Resources Defense Council, gives ATF and other agencies a great deal of latitude, [South Texas College of Law professor Dru] Stevenson said, and other circuit courts upheld the bump stock ban on that basis.

The split among the appeals courts could compel the Supreme Court to take the case. But the Biden administration may hesitate to go there and risk a ruling that would weaken the Chevron doctrine.

…

Conservative critics say the Chevron doctrine cedes too much power to bureaucrats. Cargill said his lawsuit was designed not just to restore the bump stock trade but to “go after all agencies” — “for example, the CDC.”

But regulators need that deference to ensure public safety, Stevenson said.

“That can affect everything from environment like pollution laws, to workplace safety laws with OSHA, to national highways [and] safety regulations about cars,” he said.

The Chevron Doctrine does give government agencies far too much power, in my opinion, but in the case of the bump stock ban the Fifth Circuit found that the ATF’s ban on bump stocks wasn’t allowed because the devices simply don’t meet the definition of a “machine gun”. The court went on to say, however, that even if the issue wasn’t as cut-and-dried they still would have sided with Cargill in his challenge because of the rule of lenity.

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.”

The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machine guns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.

The big issue here is how much deference should be given government agencies in crafting new regulations, especially those that come complete with potential federal prison sentences. We’re seeing the same arguments raised in Cargill v. Garland used in litigation challenging the ATF’s regulations on frames and receivers, as well as the new regulations on brace-equipped pistols; the agency isn’t just operating within its congressional mandate to implement regulations, but is  actually usurping Congress and creating new laws instead.

It remains to be seen if the judges in those cases will be persuaded by that argument, but I think there’s a very good chance for more favorable rulings ahead. What Merrick Garland decides to do if appellate courts rule that the ATF has overstepped its authority with their “ghost gun” regs and stabilizing brace rules is also an open question, but based on DOJ’s inaction in the wake of the Fifth Circuit’s bump stock decision it looks like he’s decided the best option is to take the loss and keep as many gun control cases away from the Supreme Court for as long as possible.