Administrative Law

Sixth Circuit Takes Bump Stock Case En Banc

What seems like a gun rights case actually presents some important questions of administrative law.

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Today the U.S. Court of Appeals for the Sixth Circuit granted the federal government's petition for rehearing en banc in Gun Owners of America v. Garland, a challenge to the federal government's ban on bump stocks. In March, a divided panel of the Sixth Circuit invalidated the ban after concluding the federal government was not entitled to Chevron deference. This decision created a split with the Courts of Appeals for the Tenth and D.C. Circuits.

While this may seem like a gun rights case, the real action in GOA v. Garland concerns administrative law, and the application of the Chevron doctrine in particular. As I noted here, the original panel opinion concluded that the Bureau of Alcohol, Tobacco and Firearms' interpretation of the relevant statutory language was not entitled to Chevron deference because such deference should not be available when an agency interprets a criminal statute. This is an important question of administrative law that the Sixth Circuit had engaged with before, and which the full court will now consider.

NEXT: When all the male Justices are in the majority and all the female justices are in dissent.

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  1. The bump stock is needed to deter tyranny.

  2. Bump stocks are a remarkably stupid product, but the agency’s ‘interpretation’ of the law here is objectively wrong, simply indefensible. Deference should never extend to cases where the agency’s interpretation is just this crazy, whether or not it’s a criminal statute.

    If deference extends to something this insanely wrong, it no longer matters what the words of a statute actually are.

    And I’m seriously concerned here; Were it some other topic, I doubt this would stand, but when it comes to guns, the courts often go nuts trying to rationalize upholding oppressive laws, because they favor oppression in this area.

    1. I am no fan of bump stocks and hesitate to defend them but they are far from the most “remarkably stupid product” I can think of. Using “remarkably stupid product” as a justification of anything but you personally not buying one seems silly to me.

      1. I don’t think he’s using it as a justification for anything. He’s merely saying that he thinks they’re stupid.

        Regardless, the bigger issue is that a previously legal product was declared contraband and required to be forfeited with no consideration. That should never be allowed, no matter what it is.

    2. Dude in Las Vegas did a good job with them, except he killed innocent people, instead of traitors to our country.

      1. There’s no evidence the ‘dude in Las Vegas’ actually used a bump stock, not that it has any relevance to the legal question.

  3. Its hard to see how the government wins this case.

    The smart move is for them to waive Chevron deference en banc and argue that the ATF interpretation is the best. Which they will lose. The even smarter move is to go home.

    If they argue Chevron deference, then either the en banc panel or the SC will just substitute “Chevron deference” for “Auer deference” in Kisor v Wilkie. Even if Chevron does apply here, the court has to decide whether the statute is ambiguous. Which it isn’t. Then they will get Chevron cabined. And also lose the bump stock case.

    And/or the 6th will conclude that Chevron does not apply in criminal statutes.

    So if I were the .gov, I would ask which way I wanted to lose. Right now the mandate is restricted to the 6th circuit. They lost the best way that they could, restricted to the 6th.

    Do they really want to argue Chevron, have the court decide it applies, then get the SC to restrict Chevron to the point is a paper tiger?

    That said, so far I have been singularly unimpressed with what has been coming out of the SG office. They switched positions, then lost a lot of cases. Probably they think this is a smart move. Here comes the buzzsaw.

  4. I left the Republican Party and came here after Trumps’ bump stock ban.
    I had to turn in my legally acquired property that I had enjoyed for years.
    So I went out and bought a registered machine gun.
    I’ve now been waiting 7 months for the ATF to approve the tax stamp for it and the silencer for it

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