Whether or not a bump stock, a firearm attachment pictured here, counts as a machine gun was a main focus of the first ever remote en banc oral arguments of the 10th Circuit. / LAW WEEK FILE

The 10th Circuit Court of Appeals held remote en banc oral arguments on Jan. 27 for a case dealing with legal ownership of firearm bump stocks, an accessory the Bureau of Alcohol, Tobacco and Firearms had said was legal and then reversed its decision, now requiring destruction or abandonment of the items.

Case Background

Bump stocks became a national focus after the 2017 mass shooting in Las Vegas where a gunman used a rifle fitted with such an attachment to kill 58 and injure over 400. Oral arguments in the case, Aposhian v. Barr, hinged on whether Congress’ ban on machine guns would include guns fitted with a device such as a bump stock, and whether Chevron deference — which deals with the rulemaking power of federal agencies — could be invoked in the case even after the ATF waived the argument.

The case was granted rehearing en banc in September. W. Clark Aposhian, represented by the New Civil Liberties Alliance, bought a bump stock before the ATF promulgated a rule in 2018 that classified bump stocks as machine guns. Aposhian challenged the rule in federal court, arguing that it conflicted with an earlier established rule that said certain bump stocks were not machine guns. The May 2020 panel decision notes that the definition of machine gun and the final rule were the focus of the appeal and the panel agreed that based on the merits of the challenge to the final rule, the court affirmed. A machine gun is defined as any weapon which shoots or is designed to shoot or “readily restored to shoot” automatically with one shot, without manual reloading by a single function of the trigger. The court noted that the term “automatically” was ambiguous when applied to bump stocks.

Another major part of the 10th Circuit panel’s decision was its use of Chevron deference, one of the most important principles in administrative law, according to the Legal Information Institute of Cornell Law School. In the case Chevron U.S.A.  v. Natural Resources Defense Council, the U.S. Supreme Court set a legal test as to when a court should defer to an agency’s answer or interpretation of administrative actions — so long as Congress hasn’t spoken “directly” to the issue or when judicial deference is appropriate where the agency answer isn’t unreasonable.

Caleb Kruckenberg of the NCLA said in September that because of the final rule , many Americans owning bump stocks had suddenly become open to prosecution for owning a machine gun after being told previously by the ATF that bump stocks were not such guns.

The NCLA Argument

The NCLA argues that the 10th Circuit panel erred in applying the Chevron doctrine. The court had applied the doctrine, invoking the expertise of the ATF, even though the agency had waived the argument. 

As Judge Joel Carson wrote in his dissenting opinion that the ATF disavowed the use of Chevron  in its briefing. He wrote that because the National Firearms Act terms are unambiguous, the majority’s application of Chevron was misguided, and the U.S. Supreme Court has “often” declined to apply the doctrine. Carson wrote that “turning a blind eye” to the government’s disavowing of Chevron put an “uninvited thumb on the scale in favor of the government.

”Kruckenberg also argued the court disregarded the rule of lenity, which requires ambiguities in criminal statutes to be resolved in favor of the defendant when to do so wouldn’t be contrary to legislative intent, according to Merriam Webster’s Law Dictionary..

Kruckenberg argued to the full panel of 10th Circuit judges that Congress did not clearly include bump stocks, as plastic accessories that do not alter the trigger mechanism of the firearm, in the definition of a machine gun, he said.

However, Kruckenberg said Chevron cannot apply for five reasons: the ATF agreed it had no statutory authority to issue a substantive rule clarifying any purported ambiguity in statute. Further this should decide the case because if the rule is substantive it’s an invalid agency action. If not, and if the rule is interpretive, then Chevron couldn’t apply.

In response to questions from Chief Judge Timothy Tymkovich about why lenity should apply to the case, Kruckenberg said the rule existed long before deference, and the court must read it in the way reducing the liability the most.

Chevron is a unique rule only arising when certain prerequisites exist over an issue, and grants agencies “gap filling authority,” Kruckenberg said. However, if the agency refuses that delegation, there’s no basis for Chevron. And, for many years the agency’s expertise suggested that bump stocks were not machine guns, and the final rule reversed their expertise. The ATF firearm examiners never reexamined the bump stocks and came to a different conclusion, he said.

Instead, Kruckenberg argued that there’s no statutory gap for the ATF to fill, because the definition of a machinegun isn’t ambiguous.  Chevron’s fundamental requirement for deference is absent and as such the rule of lenity must take precedence over deference. He also argued the agency didn’t use its expertise in crafting the rule, it rejected it. 

“The ATF’s sudden change of heart came at the instance of DOJ, not ATF’s firearms examiners,” Kruckenberg told the court. “Yet, another fundamental prerequisite for deference, is absent.”

Arguments for the Government

Brad Hinshelwood, representing the U.S., argued that the questions in the case regarding Chevron deference are “essentially academic.” The fundamental interpretive question existing was whether Congress, in banning machineguns due to dangers to the public and law enforcement, drew a distinction between a weapon that allows the shooter to pull a trigger once and produce repeated firing by applying pressure to the trigger and a weapon like a rifle with a bump stock — allowing pressure applied to other parts of the weapon — and produce the same result, he said.

“Nothing in the statutory text or the legislative history supports that sort of distinction, and Congress’ ban on machine guns would be largely meaningless if it could be so easily circumvented,” he said, adding that some other devices allowing for rapid fire, would not qualify as machine guns under Aposhian’s reading.

He argued that Chevron only matters if the court believes that Congress’s ban on machine guns can be availed by Aposhian’s proposal. “As the Supreme Court has made clear, there’s no need to consider questions about deference where an agency has adopted the interpretation that a court would have adopted in considering the question from scratch.”

But the court had many questions about the case itself and the standing of the parties. Judge Carlos Lucero said he has had serious reservations of the jurisdiction of the court, as no final judgment sat before the court, only an appeal of denial of preliminary injunction interlocking in nature. 

Judge Joel Carson asked Kruckenberg about how the firearm worked with a bump stock. He asked how many times a firearm with a bump stock would fire if someone simply pulled the trigger. Kruckenberg responded “once.” 

Judge Mary Briscoe asked Hinshelwood if the rule was published in the Code of Federal Regulations and if it affected individual rights and legislative law. He responded that it was in the CFR in the definitional sections at various ATF regulations, and not “every jot and tittle” of the CFR has legal effect, and Chevron wasn’t necessary to interpret the rule.

She next asked if the statute was ambiguous, and if not, why was a rule passed. Hinshelwood responded that ATF explained it undertook this rule to notify the public of revocation of past classification letter which were “erroneous” and make those in possession aware of that change.

Judge Gregory Phillips asked if the final rule is enforced, would criminal liability expanded, could someone face going to prison for possessing a bump stock? “You are, but not because of the rule,” Hinshelwood said.

Kruckenberg told Law Week later that he was pleased with the court’s work during the rehearing, and that no matter the outcome of the 10th Circuit’s decision the NCLA wouldn’t give up the case.   

 –Avery Martinez

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