CINCINNATI (CN) — Bump stocks used to increase the rate of fire on semiautomatic weapons can be banned as machine guns under federal law because of ambiguous language in the relevant statute, the federal government argued Wednesday before the full Sixth Circuit.
The federal government seeks to overturn a decision from March in which a divided Sixth Circuit panel determined several gun rights groups should have been granted an injunction to prevent criminalization of bump stocks.
The devices were thrust into the national spotlight following the 2017 concert shooting in Las Vegas that left 58 people dead, and were subsequently criminalized through the Bureau of Alcohol, Tobacco, Firearms and Explosives' reinterpretation of the statutory definition of a "machine gun."
Gun Owners of America filed suit against the government in 2018, but was denied an injunction by a federal judge who ruled the ATF was entitled to Chevron deference. The Chevron doctrine, established in the wake of a 1984 U.S. Supreme Court ruling, holds that a court may not substitute its own opinion in the place of a reasonable interpretation made by an administrative agency.
The gun rights groups appealed, and the case was argued before a Sixth Circuit panel in December 2019.
Over a year later, a divided panel released its decision in March of this year, ruling the plaintiffs were entitled to an injunction to prevent enforcement of the rule.
Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, wrote the majority opinion, in which she cited the lack of legal precedent to allow a government agency to interpret criminal statutes via Chevron deference.
Batchelder said the judiciary is responsible for the interpretation of criminal laws and provided her own analysis of the rule, eventually deciding that because a bump stock still requires multiple trigger pulls, it is not a machine gun.
In its supplemental brief to the Sixth Circuit ahead of Wednesday's en banc rehearing, the federal government argued that Chevron deference is of secondary concern because the ATF's interpretation of the statute is the most plausible.
"The question under the statute," the brief says, "is whether 'a single function of the trigger' causes the weapon to shoot 'automatically more than one shot.' That is the case here: the shooter's initial pull on the trigger initiates an automatic fire-recoil-fire sequence that continues until the shooter stops the process or runs out of ammunition."
Gun Owners of America accused the government of harboring a political agenda in its supplement brief, and argued there is no ambiguity in the statutory language.
"Because it is undisputed that a semi-automatic firearm equipped with a bump stock requires more than 'a single function of the trigger' in order to fire multiple rounds 'automatically,' it is not a machine gun," the brief states.
Attorney Robert Olson argued Wednesday on behalf of Gun Owners of America that only Congress has the authority to write and change criminal law.
"The ATF does not get to decide who goes to prison," the attorney said.
U.S. Circuit Judge Bernice Donald, a Barack Obama appointee, asked Olson how the ATF's interpretation of its own final rule was any different than other government agencies, like the Securities and Exchange Commission or Food and Drug Administration, being given the ability to determine criminal punishments.
The attorney admitted there are instances where government agencies are given the authority to develop criminal law, such as the Department of the Interior being tasked with punishments for crimes involving endangered species, but delineated between that and the current predicament.
"There is no delegation of authority like that here," he said, emphasizing the ATF can only enforce the statutes as they are written.
Olson put statutory interpretation to the side to speak about the mechanics of the bump stock itself, and accused the government of adding "straw man" arguments to their brief.
Specifically, he mentioned the inclusion of several devices that replace the trigger mechanism of a semiautomatic rifle altogether, and pointed out these products are not the same as a bump stock.
"Bump firing is a technique," Olson said, "and a bump stock facilitates that technique."
Justice Department attorney Mark Stern was peppered with questions from several judges about whether Chevron deference applies to the final rule about machine guns.
Stern admitted the government did not assert Chevron deference before the lower court, but argued it could still be applied and that it was important to "rely on the agency's expertise and familiarity" for the interpretation of the statute.
U.S. Circuit Judge Joan Larsen, an appointee of Donald Trump, asked Stern if the government's position is that its current interpretation is the only correct way to read the statute.
The attorney agreed, but was pressed by Larsen as to whether all of the readings of the statute in the past 20 years were wrong.
"As long as the government fully explains itself when it changes positions, courts typically give Chevron deference," Stern replied.
The attorney disputed his opposing counsel's view on whether a bump stock turns a semiautomatic weapon into a fully automatic machine gun, pointing to the statute's emphasis on "what sets [the gunfire] in motion."
"Does a single application [of the trigger] initiate a sequence of automatic fire?" He asked the court. "It's more than just the trigger going back and forth."
Olson told the court multiple times in his argument the government and the district court have focused too much on "out of context" dictionary definitions, including "automatically," rather than analyzing the rule as a whole. He emphasized the lack of ambiguity in the statute and said "the government is dancing around the thorny issues here."
"The only way the government wins this case is with a finding of ambiguity," Olson said in his rebuttal.
No timetable has been set for the court's decision.
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