Bump Stocks Are Not Machine Guns, Sixth Circuit Rules

CINCINNATI (CN) — A divided appeals court panel ruled Thursday that several gun rights groups should have been granted an injunction against the enforcement of an ATF rule that defines bump stocks as machine guns and makes it a felony offense to possess one.

The rule, adopted in the aftermath of the 2017 shooting of concertgoers in Las Vegas, criminalized possession of the rapid-fire gun attachments used to increase the rate of fire of semiautomatic weapons.

A federal judge denied Gun Owners of America's motion for a preliminary injunction in March 2019, and determined the the Bureau of Alcohol, Tobacco, Firearms and Explosives' rule was entitled to Chevron deference.

Established after a U.S. Supreme Court ruling in the 1984 case Chevron USA Inc. v. Natural Resources Defense Council Inc., the doctrine holds that a court may not substitute its own opinion in the place of a reasonable interpretation made by an administrative agency.

The case was argued before the Sixth Circuit in December 2019, and Thursday's decision comes on the heels of several mass shootings in the United States. Most recently, police say a suspect in Colorado killed 10 people inside a supermarket with an AR-15 style pistol.

Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, wrote the panel's majority opinion and began with analysis of the lower court's application of Chevron deference.

She cited the 2014 U.S. Supreme Court decision in United States v. Apel, in which the nation's high court ruled that "we have never held that the government's reading of a criminal statute is entitled to any deference." (Emphasis in original.)

Batchelder admitted a decision not to apply Chevron deference to the ATF's bump stock ban furthers a circuit split with the 10th and D.C. Circuit Courts, but opined that decisions on criminal punishments cannot be left to "bureaucrats" and must be decided by the public at large.

"There is great risk," she wrote, "if the responsibility of making moral condemnations is assigned to bureaucrats in the nation's capital who are physically, and often culturally, distant from the rest of the country. Federal criminal laws are not administrative edicts handed down upon the masses as if the administrators were God delivering the Ten Commandments to Moses on Mount Sinai."

Batchelder also raised separation of powers concerns, and pointed out that "it is for the judiciary to 'say what the law is' ... and this remains equally, if not especially, true for criminal laws."

Having determined the rule on bump stocks is not entitled to Chevron deference, Batchelder moved to an analysis of the rule itself. She found the device does not qualify as a machine gun under the statutory definition.

She focused on the meaning of the phrase "single function of the trigger" in the Firearm Owners' Protection Act, and ruled that because a shooter using a bump stock still pulls the trigger multiple times, the device cannot be defined as a machine gun.

"A bump stock may change how the pull of the trigger is accomplished, but it does not change the fact that the semiautomatic firearm shoots only one shot for each pull of the trigger," she wrote. "With or without a bump stock, a semiautomatic firearm is capable of firing only a single shot for each pull of the trigger."

Batchelder, who said in her conclusion that the gun rights groups should have been granted an injunction by the lower court, was joined in her opinion by U.S. Circuit Judge Eric Murphy, an appointee of Donald Trump.

U.S. Circuit Judge Helene White, a George W. Bush appointee, wrote a 22-page dissenting opinion, in which she disagreed with her colleagues about the application of Chevron deference.

White characterized the ATF's ban on bump stocks as legislative, even though its application has criminal consequences, and said the Chevron case itself dealt with a similar set of circumstances regarding daily fines and imprisonment for failures to obtain industrial permits.

She disputed Batchelder's claim the public should be left to decide which moral actions are punished with criminal consequences, citing tax and environmental law schemes as counterexamples.

"The majority fails to account for the vast regulatory frameworks created by Congress, which are replete with highly technical and complex regulations that may carry criminal punishments," she said.

White's dissent called the language used in the statutory definition of machine gun "ambiguous." While she admitted the majority's interpretation of the phrase "single function of the trigger" is reasonable, she gave greater weight to the ATF's rule.

"The ATF's focus on the human factor is reasonable," she said. "The practical effect of the bump-stock device is to turn a semi-automatic firearm into a rapid-fire firearm that only requires the person firing the gun to pull the trigger once."

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