Federal ban on bump stocks rejected by appeals court panel

CINCINNATI (CN) — The latest twist in the ongoing legal saga regarding the legality of bump stocks – used to increase the rate of fire on semiautomatic weapons – is a win for gun owners, after a Sixth Circuit panel unanimously found Tuesday the government cannot enforce a rule that bans the devices.

The Gun Control Act, originally passed in 1968, bans possession of a "machine gun," but until 2018 it did not outlaw bump stocks, which are attachments used to dramatically increase the rate of fire on semiautomatic rifles.

Following a 2017 mass shooting in Las Vegas during which a gunman used the device to kill 58 people and injure nearly 500 more, however, the Bureau of Alcohol, Tobacco, Firearms, and Explosives published a final rule that updated the definition of the term "machine gun" to include bump stocks.

A wave of litigation against the ATF ensued, including a federal lawsuit filed by Scott Hardin, a Kentucky anesthesiologist and competitive shooter who destroyed several bump stocks after the rule was put into place.

A federal judge dismissed Hardin's complaint and determined the ATF was entitled to Chevron deference, a doctrine that prevents a judge from substituting his or her own opinion in place of an agency's "reasonable interpretation" of federal law.

Around the same time, the full Sixth Circuit heard arguments from Gun Owners of America in a related case and, following a rare split decision, the ruling of a federal judge to allow the ban to take effect was reinstated.

Hardin argued before a Sixth Circuit panel in January that his case presented a live controversy despite the ruling in the Gun Owners of America case because his judge had adjudicated his claims on the merits.

Senior U.S. Circuit Judge Ronald Gilman, an appointee of Bill Clinton, wrote Tuesday's opinion and made it clear from the outset he and the other judges on the panel considered rulings from the Sixth Circuit and many other courts before they made their decision.

"A total of 22 opinions ... fully explore all aspects of the issue in nearly 350 pages of text," Gilman said. "Without repeating the intricacies of those positions here, there can be no doubt that a significant number of reasonable jurists have reached diametrically opposed conclusions as to whether the definition of a machine gun includes a bump stock."

One of the decisions against the bump stock ban came from the New Orleans-based Fifth Circuit, which ruled in January the ATF erred when it reinterpreted the federal ban on machine guns as extending to bump stocks. The appeals court left it to the district court to decide whether to block the rule. The Biden administration has appealed to the Supreme Court.

Ultimately, Gilman determined the statutory definition of machine gun is ambiguous, not only because of conflicting judicial opinion but "also by the ATF's own flip-flop in its position."

Ambiguity notwithstanding, Gilman sided with Hardin and chose not to apply Chevron deference because the ownership of a bump stock carries with it the possibility of criminal sanctions.

While the doctrine can be applied to statutory schemes that involve both civil and criminal penalties, such as securities and environmental law, the panel found it did not extend to the realm of firearms.

"Unlike securities, tax, workplace safety, and environmental-law regimes," Gilman said, "which include criminal penalties for uniquely regulatory crimes, there is nothing highly technical or complex about condemning, for example, the distribution of dangerous drugs, the commission of violent acts, or, as relevant here, the possession of deadly weapons.

"These are areas in which the courts are well-equipped to operate, and we see no reason why we should abdicate our interpretive responsibility in such instances."

In the absence of Chevron deference, according to Gilman, the rule of lenity requires a court to rule in favor of a criminal defendant, which in this case compelled a favorable result for Hardin.

"Because the relevant statutory scheme does not clearly and unambiguously prohibit bump stocks, we are bound to construe the statute in Hardin’s favor," he said.

The ruling sends the case back to the district court for a determination on whether the ban should be overturned.

U.S. Circuit Judge John Bush, a Donald Trump appointee, authored a short, concurring opinion, in which emphasized "it is up to Congress, not the ATF, to change the law if bump stocks are to be made illegal."

Bush opined that under the current definition, a bump stock cannot be considered a machine gun because it merely uses recoil from each shot, combined with forward pressure from the shooter, to increase the rate of fire.

"While the bump stock might be a self-acting mechanism to allow the rifle to slide back," he said, "it is not a self-acting mechanism to maintain the forward pressure. Without that added technique, the bump stock would not increase the rate of fire, and the rifle therefore cannot be considered a machinegun because of the addition of a bump stock."

Senior U.S. Circuit Judge David McKeague, an appointee of George W. Bush, rounded out the panel.

Attorney J. Allan Cobb, co-counsel representing Hardin, applauded the Sixth Circuit's ruling in an emailed statement Tuesday.

"This case has always been about one thing and one thing only: Whether an administrative agency (i.e., the ATF) can make a previously legal activity illegal - with criminal sanctions, including the loss of liberty - without congressional action," he said, adding that the panel's unanimous answer was a resounding "no."

The ATF chose not to comment.

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