The Volokh Conspiracy

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Sixth Circuit Panel Rejects Bump Stock Ban (Again)

A three-judge panel concludes that bump stocks cannot be considered machine gun parts under the rule of lenity.


Today, the U.S. Court of Appeals for the Sixth Circuit decided Hardin v. BATF, concluding that a bump stock is not a machine gun "part" prohibited under federal law. Judge Gilman wrote for the court, joined by Judge McKeague. Judge Bush concurred in the judgment.

Here's how Judge GIlman summarizes the court's conclusions:

The placement of a bump stock on a semiautomatic rifle causes the rifle to function essentially like a machinegun by dramatically increasing the rate of fire. And the possession of a machinegun is a criminal offense under the Gun Control Act of 1968. This raises the question of whether a bump stock is a machinegun "part" as defined by the National Firearms Act of 1934. The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."

An Act of Congress could clear up the ambiguities, but so far Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin.

Judge Bush wrote separately to express his view that the government should lose even without the rule of lenity. His separate opiion concurring in the judgement reads:

I agree that the district court's judgment should be reversed. At a minimum, as the majority opinion holds, the National Firearms Act of 1934 admits of an interpretation that excludes a bump stock from the definition of a "part" of a "machinegun" under that statute. Indeed, this is the original interpretation that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) gave to the statute. See ATF Rule 2006-2 at 2; 27 C.F.R. §§ 478.11 (2014), 479.11 (2016). That ATF later changed its views in order to ban bump stocks does not render unreasonable the ATF's first reading of the statute. Indeed, the ATF's first take aligns with the views of numerous judges on this court and elsewhere who have considered the relevant statutory text. See, e.g., Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 910 (6th Cir. 2021) (Murphy, J., dissenting), cert. denied, 143 S. Ct. 83 (2022); Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc), petition for cert. filed (April 7, 2023). Therefore, even accepting (as does the majority opinion) that the statute could reasonably be read either way as to the legality of bump stocks, the statute must be read under the rule of lenity to exclude a bump-stock rifle from the definition of a machinegun. See United States v. Granderson, 511 U.S. 39, 54 (1994); Jones v. United States, 529 U.S. 848, 858 (2000) (if there are two possible "readings of what conduct Congress has made a crime," the "harsher alternative" reading should be rejected because "Congress should have spoken in language that is clear and definite") (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 22122 (1952)). That is the import of the majority's reasoning.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF "the power to expand the law banning machine guns through [the] legislative shortcut" of the ATF's rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

This is not the first time a Sixth Circuit panel ruled that bump stocks are legal. A prior panel reached the same conclusion (albeit on somewhat different grounds) in March 2021. The court then granted rehearing en banc, and split 8-8, affirming the original trial court's judgment in favor of the government without opinion. It will be interesting to see whether this case also gets an en banc rehearing.