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Debate over legality of bump stocks resurfaces at Sixth Circuit

Despite a ruling from the en banc appeals court upholding the government's ban on the rapid-fire devices, a Kentucky resident argues bump stocks don’t count as machine guns under federal law.

CINCINNATI (CN) — Two previous rulings from the Sixth Circuit – including a split decision from the en banc court – did not settle the controversy surrounding bump stocks, according to arguments made Thursday by a Kentuckian who seeks to overturn a ban on the rapid-fire gun attachments.

Bump stocks, which use the recoil of a semiautomatic rifle to increase the rate of fire, gained notoriety in 2017 after they were used to kill concertgoers in the deadly Las Vegas mass shooting, and were banned by the Bureau of Alcohol, Tobacco, Firearms, and Explosives in 2018.

Gun lobbyists sued then-Attorney General William Barr, claiming the ATF overstepped its authority when it added bump stocks to the statutory definition of machine gun with the passage of a final rule. The case was eventually argued before a Sixth Circuit panel in 2019.

Nearly 16 months later, in March 2021, the panel in Gun Owners of America v. Garland overturned a federal judge's ruling and determined the guns owners should have been granted an injunction to prevent enforcement of the bump stock ban.

The full Sixth Circuit took up the case later the same year, and in December 2021 released a split decision that reinstated the lower court's ruling to enforce the ban.

Scott Hardin, an anesthesiologist and competitive shooter from Jefferson County, Kentucky, destroyed legally purchased bump stocks when the rule went into effect and sued the federal government around the same time as the underlying suit in the Sixth Circuit's previous decisions, with similar results.

A federal judge dismissed Hardin's complaint after determining the ATF was entitled to Chevron deference in its interpretation of the relevant statute. 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.

Hardin appealed and the case was briefed in early 2021, prior to the Sixth Circuit's en banc decision in Gun Owners of America.

Attorney Jason Hardin argued on behalf of his cousin during Thursday's remote hearing and emphasized the importance of the case, despite previous rulings from the Sixth Circuit and other courts.

"As far as I know," he said, "this is the only case where there has been an adjudication on the merits and the application of Chevron deference."

Senior U.S. Circuit Judge Ronald Gilman, a Bill Clinton appointee, asked about judges in other jurisdictions who determined there is ambiguity in the statute that allows for the ATF's current interpretation of the term "machine gun."

"At the end of the day," the attorney answered, "you only get one bullet per the depression of that trigger. You have to keep pushing that trigger ... to allow for shots to be fired. [It's] different from an automatic weapon."

Hardin argued the government's focus on the actions taken by the shooter is a "slippery slope" because the statute regulates the bump stock itself, not the individual who uses it.

U.S. Circuit Judge John Bush, a Donald Trump appointee, pointed out a "sharp diversion in the authorities" who have issued rulings on the statute, and asked Hardin if ambiguity in the definition of "automatically" would still allow his client to win.

"I think the crux of this ... is that this statute has criminal sanctions and so the rule of lenity applies," the attorney answered. The rule of lenity states that ambiguity in criminal statutes must be interpreted favorably toward a defendant.

Attorney Bradley Hinshelwood argued on behalf of the ATF and was peppered with questions by Bush about the federal government's shifting definition of the word "automatically."

"If the statute is ambiguous, does the government lose?" Bush asked.

Hinshelwood admitted that "if the court is left to guess what Congress intended, the rule of lenity would apply," although he was quick to point out that is not the case in the current scenario.

Bush mentioned that the Akins accelerator, a device that includes a spring or similar mechanism to increase the rate of fire of a semiautomatic weapon, had been classified a machine gun by the ATF, but that the bump stock was not considered a machine gun until the adoption of the 2018 rule.

"The ATF has an inconsistent record," Bush continued. "Isn't that evidence that the statute is ambiguous?"

"No one thinks the definition of 'automatically' hinges on the presence of springs or mechanical parts," Hinshelwood answered.

"It would be extremely odd to say that the agency cannot correct a mistake," the attorney continued. "The fact that there was a mistake [in interpreting the statute] along the way is an impediment in getting to the right answer."

Near the end of the government's allotted time, Gilman asked Hinshelwood why the rule of lenity should not apply.

"The rule of lenity only applies in cases of grievous ambiguity," the attorney said.

In his rebuttal, Hardin argued the "inconsistent ATF rulings undercut their argument that the statute is unambiguous" and urged the panel to overturn the lower court's decision.

"The [2018 rule] change should be given less deference than the long-held, consistent view ... so the public knows what the law is," he concluded.

Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee, rounded out the panel. No timetable has been set for the court's decision.

Two weeks ago, the New Orleans-based Fifth Circuit ruled the ATF erred when it reinterpreted the federal ban on machine guns as extending to bump stocks, with 13 judges holding that an act of Congress is necessary to ban bump stocks.

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