En Banc Sixth Circuit Splits 8-8 Over Bump Stock Ban

In March, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected a Bureau of Alcohol, Tobacco & Firearms declaring that bump stocks constitute illegal “machine guns” under federal law, overturning a district court ruling to the contrary. The panel majority concluded, among others, that ATF interpretations were not admissible for Chevron deference. The entire court approved a petition to rehear en banc in June.

Yesterday’s full court upheld the original District Court judgment. Gun Owners of America against Garland by an equally divided vote, without an opinion for the court.

However, just because the court did not have an opinion does not necessarily mean that there weren’t any opinions. Three were present. Each judge, Gibbons and White, supported affirmation of the district court. Judge White joined Judge Cole, Clay, Clay, as well as Stranch in expressing their support for affirming the district court. Justice Moore and Cole joined Judge Gibbons in expressing their opinion. White and Stranch. [Judges Griffin and Donald apparently voted to affirm the district court as well, but did not join either opinion.]

Chief Judge Sutton joined Judge Murphy and Judges Batchelder Kethledge Thapar Bush Larsen and Thapar in delivering a disapproving opinion. Senior Judge Batchleder was present because she served on the original panel of three judges. Judge Readler was rescinded.

Many are interested in the case as it involves bump stock, but the duels focused on the interpretation of the statute and how that was applied. Chevron deference. Judges disagreed on whether bump stock is a “machinegun”, as defined by 26 U.S.C. § 5845(b) and, insofar as the statutory language is ambiguous, whether the ATF’s interpretation merits Chevrondeference is given to (among others) the unlawful machinegun possess criminal offense.

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Below is Judge White’s summary of the pertinent statutory text:

Congress defined “machinegun” as “any weapon which can fire automatically, and is capable of being quickly restored to firing, either by manual reloading or by using a single trigger function.” 26 U.S.C. § 5845(b). The term “Machinegun”, also refers to “any frame, receiver, or other part that is intended exclusively and exclusively for the conversion of a weapon into machinegun,” as well “any combination of parts, designed and intended only and exclusively, or combination thereof, intended to be used in assembling a machinegun if they are in the possession, or control, of another person.” Id.

At least six judges ruled that a bump stock is a “machinegun”, according to the most accurate interpretation. The opinion of Judge White was endorsed by five other judges, who concluded that the ATF interpretation should continue to be accepted. Chevron deference:

ChevronThis is the legal standard of review. You can apply 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 stated that the rule o lenity was unapplicable, and that even if it were, Chevron Deference was not applicable, ATF’s interpretation should therefore be accepted Skidmore.

Separate opinion of Judge Gibbons was reached that Chevron Those with criminal sanctions can be applied to statutes. “ChevronThis is because application of the statute does not need to be done.

Judge Murphy’s dissident view was quite different from Murphy’s regarding the statute language and its applicability. Chevron. Let’s see how his opinion starts:

From the beginning of our Republic it was a fundamental legal principle that no government could criminalize or put people in prison unless it passed democratically through Congress. Hudson v. United States, 11 U.S. 32, 34 (1812). However, the Bureau of Alcohol, Tobacco, Firearms, and Explosives tried to ban bump stocks in a different way. It did so by creating a rule that was only approved by federal agencies. BumpStock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (“Bump-Stock Rule”). Our court rejects a challenge to ATF’s Bump-Stock Rule by an equal vote. This judgment is not mine to respectfully disapprove. I respectfully disagree with this judgment. Nothing in the two applicable statutes of Congress gives to ATF any broad authority to increase a crime’s severity through such regulatory lawmaking.

Congress amended the Gun Control Act of 1968, making it a crime for a person to own a “machinegun” in 1986. § 922(o)(1), a term defined in the National Firearms Act of 1934, 26 U.S.C. § 5845(b). Gun Owners of Am., Inc. against Garland, 992 F.3d 446, 450–51 (6th Cir. 2021). The ATF maintained for years that bump stocks could be lawfully owned by private individuals because they did not fit within Congress’s definition of “machinegun”. Bump-Stock Rule, 83 Fed. Reg. At 66,516. Americans spent millions on bump stocks. Id. Id. The ATF changed their position. Bump Stock Rule: The ATF acknowledged that bump stocks were legal, but stated that these devices would soon be considered illegal. Id. Id. The Bump-Stock Rules creates an entirely new crime.

In Judge Batchelder’s unanimous panel opinion, Judge Batchelder argued that neither Gun Control Act nor National Firearms Act grants the ATF any power to increase the law banning machines guns via this legislative shortcut. Gun Owners, 992 F.3d at 454–74. This is my second attempt to explain why bump stocks do not qualify as “machineguns” in these laws. I also want to point out why “machineguns”, or “machineguns,” are not acceptable.ChevronTo save ATF’s rule, deference See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). A bump stock is a tool that allows semiautomatic rifle shooters to fire at speeds similar to those used for automatic weapons. I doubt many people would understand the reasoning behind owning one. However, this isn’t a case that has to do with whether Congress should have prohibited bump stocks in the wake of the Las Vegas massacre.
Shooting in 2017. Congress did not pass multiple bills despite the fact that they had introduced them all. 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). No matter your opinion on banning bump stock, you should all be concerned at the process by which the federal government implemented that policy.

Judge Murphy takes some time out of his dissension to criticize the views of federal circuit judges that upheld ATF’s ban on bump stock.

The Bump Stock Rule has been upheld by circuit courts. They haven’t suggested that ATF’s opposing view is “the better interpretation of the statute.” Guedes30, 920 F.3d. They haven’t even considered asking which reading is better. Italics. Instead, they ruled that the ATF readings must be reviewed. Chevron‘s “two-step” approach. Italics. at 17–28; Barr v. Aposhian, 958 F.3d 969, 979–84 (10th Cir. 2020). These courts determine that the terms “automatically” or “single-function of the trigger” have sufficient ambiguity to warrant courts at step 1.
To rely on the ATF’s reading. Aposhian, 958 F.3d at 988–89; Guedes, 920 F.3d at 29–31. Step two: They find that the ATF’s reading “permissible.” Aposhian, 958 F.3d at 984–88; Guedes, 920 F.3d at 31–32.

Three problems I see in this method. The courts justifiably use this approach. Chevron With irrelevant cases, which interpret statutes to delegate power to agencies to adopt criminal regulations. Second, courts incorrectly expand ChevronBy holding that Congress impliedly delegated power to the Attorney general to interpret a crime law, merely because it granted him authority to adopt regulations. The third, and even the most basic of criminal laws is not under his control. ChevronIn’s Regime, courts wrongly discover ambiguity and fail to interpret the statute’s meaning.

Judge Murphy’s opinion shows that although the ATF bump stock ban was upheld by all the federal circuit courts, there has been a split in the opinions of judges. They have taken different approaches and applied them differently. Chevron.

Judge Murphy’s dissension concludes

Machine guns are capable of inflicting severe harm quickly by firing continuously at high speeds and only one trigger activation. Many people are convinced that bump stock rifles share many of the dangerous characteristics that led Congress not to allow machine guns. Bump-Stock Rule, 83 Fed. Reg. Reg. at 66.520. These newer devices may not be covered by the “machinegun ban” but courts might consider treating them anyway as they are within the “spirit” of the law. Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). It might not prove problematic to use the judicial method of expanding a statute by “equitable” interpretation instead of legislation in a country where there is a fluid separation among powers. Look!John F. Manning Textualism Equity of the Statute, 101 Colum. L. Rev. 1, 8 (2001). However, in this country the judiciary had for many years a more narrow duty: “to amend the work of representatives of the People, but not to apply it.” 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. This is because the branch hasn’t seen the need to ban bump stock or grant a federal agency that power. I respectfully disapprove of the court’s judgment in the case.