The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In March, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected a Bureau of Alcohol, Tobacco & Firearms regulation declaring that bump stocks constitute illegal "machine guns" under federal law, overturning a district court ruling to the contrary. Among other things, the panel majority concluded that the ATF's interpretation was not eligible for Chevron deference. In June, the entire court granted a petition for rehearing en banc.
Yesterday, the full court affirmed the original district court judgment in Gun Owners of America v. Garland by an equally divided vote, without an opinion for the court.
Yet just because there was no opinion for the court does not mean there were no opinions. There were three. Judges White and Gibbons each delivered an opinion in support of affirming the district court. Judge White's opinion was joined by Judges Moore, Cole, Clay, and Stranch. Judge Gibbons' opinion was joined by Justice Moore, Cole. White and Stranch. [Judges Griffin and Donald apparently voted to affirm the district court as well, but did not join either opinion.]
Judge Murphy delivered a dissenting opinion, joined by Chief Judge Sutton and Judges Batchelder, Kethledge, Thapar, Bush, Larsen, and Nalbandian. (Senior Judge Batchleder participated because she had been on the original three-judge panel. Judge Readler was recused.)
Although many have interest in this case because it concerns bump stocks, the dueling opinions focused on questions of statutory interpretation and the application of Chevron deference. The judges disagreed over whether a bump stock qualifies as a "machinegun" under 26 U.S.C. § 5845(b) and, insofar as the statutory language is ambiguous, whether the ATF's interpretation merits Chevron deference given (among other things) that unlawful machinegun possession is a criminal offense.
Here is the relevant statutory text, as summarized in Judge White's opinion:
Congress defined the term, "machinegun," to mean "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b). "Machinegun" also includes "the frame or receiver of any such weapon" as well as "any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." Id.
In the view of at least six judges, a bump stock constitutes a "machinegun" under the best interpretation of this language. Five judges further concluded (as articulated in Judge White's opinion) that the ATF interpretation should be upheld under Chevron deference:
Chevron provides the standard of review, even though the law under consideration has criminal applications. Applying Chevron, Congress has not spoken to the precise question at issue and, after exhausting the traditional tools of statutory construction, § 5845(b) remains ambiguous. Because ATF's interpretation of § 5845(b) is a permissible construction of the statute and is reasonable, it is entitled to Chevron deference.
Judge White also argued that the rule of lenity was inapplicable and that, even if Chevron deference did not apply, ATF's interpretation should be accepted under Skidmore.
Judge Gibbons separate opinion agreed that Chevron can apply to statutes with criminal penalties, but that "Chevron application is unnecessary" here because the ATF's interpretation was "unambiguously the best interpretation" of the statute.
Judge Murphy's dissent took quite a different view of the statutory language and the applicability of Chevron. Here is how his opinion begins:
Since the early days of our Republic, it has been a bedrock legal principle that our government cannot criminalize conduct and send people to prison except through democratically passed laws that have made it through both Houses of Congress and been signed by the President. See United States v. Hudson, 11 U.S. 32, 34 (1812). Yet the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has sought to ban "bump stocks" in a far different way: through a regulation adopted by a federal agency alone. BumpStock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) ("Bump-Stock Rule"). By an equally divided vote, our court affirms a decision rejecting a legal challenge to the ATF's Bump-Stock Rule. I must respectfully dissent from this judgment. Nothing in Congress's two relevant statutes delegates to the ATF such broad power to expand a crime's scope through this sort of regulatory lawmaking.
In 1986, Congress amended the Gun Control Act of 1968 to make it a crime to possess a "machinegun," 18 U.S.C. § 922(o)(1), a term defined in the National Firearms Act of 1934, 26 U.S.C. § 5845(b). Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 450–51 (6th Cir. 2021). For years, the ATF asserted that private parties could lawfully possess the bump stocks at issue in this case because these devices did not fall within Congress's "machinegun" definition. Bump-Stock Rule, 83 Fed. Reg. at 66,516. So Americans bought millions of dollars' worth of bump stocks. Id. at 66,547. Then the ATF changed its position. In the Bump-Stock Rule, the ATF agreed that the possession of bump stocks had been lawful in the past but asserted that the devices would become illegal "machineguns" on the rule's effective date. Id. at 66,525. There thus can be no doubt that the Bump-Stock Rule creates a new crime.
Judge Batchelder's panel opinion persuasively explained that neither the Gun Control Act nor the National Firearms Act gives the ATF the power to expand the law banning machine guns through this legislative shortcut. Gun Owners, 992 F.3d at 454–74. I write to add a few more thoughts on why bump stocks are not "machineguns" under these laws and why we cannot fall back on "Chevron deference" to save the ATF's rule. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Many people, I suspect, would not understand why anyone would want to own a bump stock, a device that helps a person shoot semiautomatic rifles at rapid rates approaching those of automatic weapons. But this case has nothing to do with the policy debate over whether Congress should have banned bump stocks after the tragic Las Vegas shooting in 2017. Despite the introduction of multiple bills, Congress opted not to pass such legislation. And while the burdensome legislative process may seem "unworkable" in today's polarized age, it is a core component of our separation of powers designed to protect the liberty of all Americans—not just bump-stock owners. INS v. Chadha, 462 U.S. 919, 959 (1983). Whether one favors or disfavors a policy banning bump stocks, we should all be concerned with the way in which the federal government has enacted that policy into law.
In the course of his dissent, Judge Murphy devotes some time to critiquing the opinions of other federal circuit courts that have upheld the ATF's bump stock ban.
The circuit courts that have upheld the Bump-Stock Rule have not suggested that the ATF's contrary view "is the better reading of the statute." Guedes, 920 F.3d at 30. Indeed, they have not even felt the need to ask which is the better reading. Id. They have instead held that they must review the ATF's reading under Chevron's "two-step" approach. Id. at 17–28; Aposhian v. Barr, 958 F.3d 969, 979–84 (10th Cir. 2020). At step one, these courts find that "automatically" and "single function of the trigger" are sufficiently ambiguous to require courts to defer to the ATF's reading. Aposhian, 958 F.3d at 988–89; Guedes, 920 F.3d at 29–31. At step two, they hold that the ATF's reading is "permissible." Aposhian, 958 F.3d at 984–88; Guedes, 920 F.3d at 31–32.
I find three problems with this approach. First, the courts justify their use of Chevron with irrelevant cases that interpret statutes expressly delegating power to an agency to enact criminal regulations. Second, the courts wrongly expand Chevron's domain by holding that Congress impliedly delegated to the Attorney General the power to interpret a criminal law merely because it gave him a general authority to enact regulations. Third, even under Chevron's regime, the courts improperly find ambiguity without attempting to figure out the statute's meaning.
This portion of Judge Murphy's opinion highlights that, although all three federal circuit courts to consider the question have upheld the ATF's bump stock ban, judges have split over the reasons why, and have adopted different approaches to the applicability and application of Chevron.
Judge Murphy's dissent concludes:
By continuously firing at rapid speeds with one activation of the trigger, machine guns can inflict great harm in short periods. And no doubt many people believe that rifles equipped with bump stocks share the same dangerous traits that led Congress to ban machine guns. Bump-Stock Rule, 83 Fed. Reg. at 66,520. So even though these newer devices might not fall "within the letter" of the statutory "machinegun" ban, courts may be tempted to treat them as covered anyway because they fall within its underlying "spirit." Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). In a country with a fluid separation of powers between the branches of government, this judicial approach of enlarging a statute through "equitable" interpretation rather than legislation might not be problematic. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 8 (2001). In our country, however, the judiciary has long had a narrower duty: "to apply, not amend, the work of the People's representatives." Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). This duty leaves the policy debate over whether to ban bump stocks where it belongs—with the legislative branch accountable to the people. And since that branch has not seen fit to ban bump stocks or give a federal agency the power to do so, I must respectfully dissent from our judgment affirming the district court's decision in this case.