: Tenth Circuit Disregards Its Own Precedent in Appeal of Denied Challenge to ATF’s Bump Stock Ban: NCLA Legal

Today, 7 May, the U.S. Court of Appeals for the Tenth Circuit invoked the Chevron doctrine to deny NCLA client Clark Aposhian’s appeal of his challenge to ATF’s bump stock ban in a 2-1 vote. Mr. Aposhian, who last spring was the “last man in America” to own a legal bump stock, thinks that only Congress should be able to ban bump stocks. Instead, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made them illegal to possess through a Final Rule issued without statutory or constitutional authority. In so doing, ATF turned over 500,000 innocent purchasers into felons (but gave them 90 days to turn in or destroy their devices to avoid prosecution).

The Final Rule reinterpreted the words “automatically” and “single function of the trigger” in the National Firearms Act to classify bump stocks as “machine guns.” Even though ATF had previously approved bump stocks for sale, and determined that they were not machine guns, the new Rule treats Mr. Aposhian’s conduct as a federal crime punishable by up to 10 years in prison.

(ATF’s Final Rule From ATF site :

On December 18, 2018, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

(( The Final Rule ATF

The rule will go into effect March 26, 2019; 90 days from the date of publication in the Federal Register.

The final rule clarifies that the definition of “machinegun” in the Gun Control Act (GCA) and National Firearms Act (NFA) includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.))

In April 1, 2019, the Department of Justice published in the Federal Register a final rule making technical changes to remove expired, obsolete, or unnecessary regulations; correct specific headings; and reflect changes to nomenclature in the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations related to the commerce in firearms and ammunition. That document inadvertently included an incomplete revision to remove all words related to an expired regulation. This final rule corrects the April 2019 amendment by revising the section to complete the removal of the expired regulation.)

Mr. Aposhian’s appeal raised key issues about whether an agency can create such a retroactive ban and about the Chevron doctrine, which instructs courts to defer to agencies’ reasonable statutory constructions—but only if the court first concludes that the statute is ambiguous. Mr. Aposhian’s brief argued that the National Firearms Act is not ambiguous, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. His appeal also asked whether the Chevron doctrine applies when the agency repudiates it and whether the Chevron doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability.

In its court filings, ATF admitted that it lacked rulemaking authority under the Gun Control Act and the National Firearms Act to issue a legislative rule banning bump stocks. That is why ATF insisted that its Final Rule was an “interpretive” rule rather than a “legislative” rule. Yet the Tenth Circuit ignored that crucial admission, treated the rule as a legislative rule anyway, and upheld it. ATF also agreed, in recognition of the rule of lenity, that if the law was unclear the Court could not read it to make innocent Americans into criminals. Yet the Tenth Circuit disregarded its own precedent to decide that the rule of lenity does not apply to regulations with criminal consequences.

In today’s opinion, written by Judge Mary Beck Briscoe, a majority of the Court not only allowed upheld an unlawful legislative rule, but it bent over backward to “defer” to the ATF’s reading of the law, even though the agency’s brief refused to invoke Chevron. The court also disregarded Judge Briscoe’s own prior opinion holding that the rule of lenity forecloses deference to an agency’s interpretation of an ambiguous statute. In his dissent, Judge Joel Carson recognized that deferring to ATF under Chevron “place[d] an uninvited thumb on the scale in favor of the government.”

NCLA will continue to oppose the Final Rule in this case and in Cargill v. Barr.

NCLA released the following statements:

“The Court has allowed ATF to take the lawmaking decision away from Congress and create brand new criminal laws in defiance of the proper constitutional order. Judge Carson was right to say that both the ATF rule and the majority’s decision ‘subvert[] the constitutional prerogatives of each branch of government’ by rewriting the clear language of a law passed by Congress.”

—Caleb Kruckenberg, Litigation Counsel, NCLA

“Today’s Aposhian decision from the Tenth Circuit once again reveals how pernicious the Chevron doctrine really is. Even where the statute was not ambiguous, even where the government refused to invoke it, and even where the rule of lenity forbade it, Chevron reared its monstrous head.”

—Mark Chenoweth, General Counsel, NCLA

DOJ Ruling:

Department of Justice Announces Bump-Stock-Type Devices Final Rule: Dec 2018

Today, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger. 

Acting Attorney General Whitaker made the following statement: 

“President Donald Trump is a law and order president, who has signed into law millions of dollars in funding for law enforcement officers in our schools, and under his strong leadership, the Department of Justice has prosecuted more gun criminals than ever before as we target violent criminals. We are faithfully following President Trump’s leadership by making clear that bump stocks, which turn semiautomatics into machine guns, are illegal, and we will continue to take illegal guns off of our streets.”

On February 20, 2018, President Trump issued a memorandum instructing the Attorney General “to dedicate all available resources to… propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” In response to that direction the Department reviewed more than 186,000 public comments and made the decision to make clear that the term “machinegun” as used in the National Firearms Act (NFA), as amended, and Gun Control Act (GCA), as amended, includes all bump-stock-type devices that harness recoil energy to facilitate the continuous operation of a semiautomatic firearm after a single pull of the trigger. 

This final rule amends the regulatory definition of “machinegun” in Title 27, Code of Federal Regulations (CFR), sections 447.11, 478.11, and 479.11.  The final rule amends the regulatory text by adding the following language:  “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Furthermore, the final rule defines “automatically” and “single function of the trigger” as those terms are used in the statutory definition of machinegun.  Specifically,

• “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as a result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through the single function of the trigger;
• “single function of the trigger” means single pull of the trigger and analogous motions.

Because the final rule clarifies that bump-stock-type devices are machineguns, the devices fall within the purview of the NFA and are subject to the restrictions of  18 U.S.C. 922(o).  As a result, persons in possession of bump-stock-type devices must divest themselves of the devices before the effective date of the final rule.  A current possessor may destroy the device or abandon it at the nearest ATF office, but no compensation will be provided for the device.  Any method of destruction must render the device incapable of being readily restored to its intended function. 

The final rule may be found here.

Information and instructions for destruction of the devices will be posted on ATF’s website later today.

Please note:  This is the text of the final rule as signed by the Acting Attorney General, but the official version of the final rule will be as it is published in the Federal Register.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.