The Attorney General had until the 27th to submit a response. He didn’t. Why? who knows, but that led to the 5th Circuit issuing this mandate for their ruling to take effect.

Fifth Circuit Finalizes Ruling In Favor of Plaintiff in Cargill v. Garland, Legalizes Bump Stocks in Three States

In January the Fifth Circuit Court of Appeals ruled that the ATF’s Trump-mandated bump stock ban was unconstitutional. Today, in a 13-3 ruling, the Court of Appeals finalized its ruling, mandating that the case — Cargill v. Garland — be remanded to the lower court to reverse its decision [that upheld the ban] and enter a judgement in favor of the plaintiff, Michael Cargill.

As the court majority wrote . . .

Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the Final Rule is good public policy. We express no opinion on those arguments because it is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it.
In defining the term machinegun, Congress referred to the mechanism by which the gun’s trigger causes bullets to be fired. Policy judgments aside, we are bound to apply that mechanical definition. And applying that definition to a semi-automatic rifle equipped with a non-mechanical bump stock, we conclude that such a weapon is not a machinegun for purposes of the Gun Control Act and National Firearms Act.
Chevron deference likely has no role here either because the Government waived it or because it does not apply to the Government’s interpretation of a statute imposing criminal penalties. Finally, even if the statute were ambiguous—which it is not—the rule of lenity would require that we interpret the statute in Cargill’s favor. As Justice Holmes framed it years ago, “it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle, 283 U.S. at 27. We cannot say that the National Firearms Act and Gun Control Act give that fair warning that possession of a non-mechanical bump stock is a crime.
The Final Rule promulgated by the ATF violates the APA. We therefore REVERSE the judgment of the district court and REMAND with instructions to enter judgment for Cargill.

And with that, the 5th Circuit Court of Appeals has now legalized bump stocks in Texas, Louisiana and Mississippi. You can read the ruling here.

Three other circuits have upheld the ATF’s ban. The Fifth Circuit’s order officially creates a Circuit Court split, setting up an almost certain review by the Supreme Court which could go much farther than just bump stocks, possibly limiting the extent to which regulatory agencies and the administrative state are free to “interpret,” alter, and create laws. That, of course, is actually Congress’s job, if you believe what the Constitution says.

Watch this space.

MORE: As Michael Cargill noted in his tweet at the top, the ATF has not yet requested a stay of this order. But that doesn’t mean they won’t. They may have been too busy commemorating the 35th anniversary of the Waco siege yesterday to jump right on that. or maybe their strategy is different.

As TTAG contributing attorney LKB pointed out in the comments and expands below, there’s still much, much more to come.

As for bump stocks being legal in the Fifth Circuit, they are likely going to be, and any indictment issued in the Fifth Circuit will likely be ordered dismissed (but the government can appeal that and keep the case alive while they continue appealing the Fifth Circuit’s ruling). But it’s too early to tell people it’s A-OK to have/make bump stocks.

Issuance of the mandate doesn’t mean the entire case is over. DOJ still has at least a month to file a cert petition, and it also can ask for an extension (a request that will always be granted for Uncle Sam).

In this case, the issuing of the mandate just ends the case in the Fifth Circuit and returns jurisdiction to the district court to enter final relief (injunction, declaratory relief, award of costs and fees, etc.). The fact that DoJ didn’t ask for a stay of the mandate means nothing. It’s not like there is a judgment that the plaintiff would be free to start executing on, or an injunction that will instantly go into effect.

Once that order is issued, DOJ can request a stay of that order and can can appeal from it, but that appeal will go nowhere with the Fifth Circuit given the en banc opinion. DoJ could then theoretically file a cert petition from that order as well, as well as appeal the likely denial of a stay.

This may well be their play…delay, delay, delay. It’ll take months for the district court to enter final relief. DOJ can then file an appeal of that, which will likely take another year to resolve, at which time it files a cert petition (another 6-18 month delay, unless of course DOJ files for cert in the current matter, and SCOTUS had granted cert and affirmed.

Meanwhile, who knows what will happen in Congress in the meantime? Might Congress pass a bump stock ban, especially if there is another high profile mass shooting? Or a change of personnel on SCOTUS?

Remember also, the case has now been sent back to Judge David Ezra — who found against the plaintiff before, and unlike Judge Benitez, Judge Ezra is unlikely going to want to fast-track issuing an order. Indeed, I expect him to sit on it for months, and only do anything if and when plaintiffs mandamus him to enter a final order.