*1 SUTTON, Chief Judge; BATCHELDER, MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN and MURPHY, Circuit Judges. [*]
_________________
COUNSEL ARGUED: Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Appellants. Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte, Michigan, for Appellants. Mark B. Stern, Abby C. Wright, Brad Hinshelwood, Kyle T. Edwards, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Alan Alexander Beck, San Diego, California, Stephen D. Stamboulieh, STAMBOULIEH LAW, PLLC, Olive Branch, Mississippi, Michael T. Jean, Hadan W. Hatch, NATIONAL RIFLE ASSOCIATION OF AMERICA, Fairfax, Virginia, John I. Harris III, SCHULMAN, LEROY & BENNETT PC, Nashville, Tennessee, Sebastian D. Torres, BISGAARD & SMITH LLP, Cincinnati, Ohio, Ilya Shapiro, CATO INSTITUTE, Washington, D.C., Richard A. Samp, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., David M. S. Dewhirst, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Joseph G. S. Greenlee, FIREARMS POLICY COALITION, Sacramento, California, Ian Simmons, O’MELVENY & MYERS LLP, Washington, D.C., John Cutonilli, Garrett Park, Maryland, pro se, for Amici Curiae.
The En Banc Court of the Sixth Circuit Court of Appeals delivered an order. WHITE, J. (pp. 3–20), in which MOORE, COLE, CLAY, and STRANCH, JJ., joined, and GIBBONS, J. (pg. 21), in which MOORE, COLE, WHITE, and STRANCH, JJ., joined, delivered separate opinions in support of affirming the district court’s judgment. MURPHY, J. (pp. 22–47), delivered a separate dissenting opinion, in which SUTTON, C.J., BATCHELDER, KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined.
_________________
ORDER _________________ Pursuant to Rule 35 of the Federal Rules of Appellate Procedure and Sixth Circuit Rule 35, a majority of the active judges of this court voted to grant en banc review of this case. By published order of the court, entered on June 25, 2021, rehearing en banc was granted and the previous opinion was vacated. Following argument heard by the court en banc on October 20, 2021 and a conference among the judges, the court divided evenly, with eight judges voting to affirm the judgment of the district court and eight judges voting to reverse. Consequently, the judgment of the district court is AFFIRMED. See School Dist., Pontiac v. Secretary, U.S. Dep’t. Educ., 584 F.3d 253 (6th Cir. 2009), Goodwin v. Ghee , 330 F.3d 446 (6th Cir. 2003), and Stupak-Thrall v. United States , 89 F.3d 1269 (6th Cir. 1996). Separate opinions in favor of affirmance and in favor of reversal follow.
___________________________________________________________________________
OPINION IN SUPPORT OF AFFIRMING THE DISTRICT COURT’S JUDGMENT ___________________________________________________________________________
WHITE, Circuit Judge, writing in support of affirming the district court judgment. Congress defined the term, “machinegun,” to mean “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). “Machinegun” also includes “the frame or receiver of any such weapon” as well as “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” Id.
And Congress tasked the Attorney General with administering and enforcing Chapter 53 of Title 26 of the National Firearms Act, in which the definition of “machinegun” appears, and delegated rulemaking authority to the Attorney General to further this end. 26 U.S.C. §§ 7801(a)(2)(A), 7805(a). Congress also authorized the Attorney General to prescribe “rules and regulations as are necessary to carry out the provisions” of Chapter 44 of Title 18 of the Gun Control Act. 18 U.S.C. § 926(a). The Gun Control Act makes it unlawful to transfer or possess a “machinegun” as defined in § 5845(b). 18 U.S.C. §§ 921(a)(23), 922(o).
The Attorney General has directed the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to administer, enforce, and exercise the functions and powers of the Attorney General with respect to Chapter 44 of Title 18 and Chapter 53 of Title 26. 28 C.F.R. § 0.130(a). On December 26, 2018, ATF published a rule clarifying that bump-stock- type devices fall within the definition of “machinegun” as defined in the National Firearms Act and the Gun Control Act. [1] Bump-Stock-Type Devices (Final Rule), 83 Fed. Reg. 66,514, 66,543. [2]
*4
Plaintiffs-Appellants (Gun Owners) filed this action challenging the Final Rule and sought a
preliminary injunction to prevent it from going into effect.
Gun Owners of Am. v. Barr
, 363 F.
Supp. 3d 823, 825–26 (W.D. Mich. 2019),
rev’d and remanded sub nom. Gun Owners of Am.,
Inc. v. Garland
,
provides a grip for the shooting hand. The rear end of the stock rests against the shooter's shoulder. A bump stock replaces the standard stock on a rifle. Bump stocks include an extension ledge or finger rest on which the shooter places his or her trigger finger where it is stabilized. The shooter then exerts a constant forward pressure on the barrel of the rifle using the non-trigger hand. As the rifle is pushed forward, the shooter also pulls the trigger, initiating the firing sequence. The bump stock then harnesses the rearward recoil energy from the shot causing the weapon to slide back into shooter’s shoulder separating the trigger finger resting on the ledge and the trigger itself. The constant forward pressure exerted by the non-trigger hand on the barrel then pushes the weapon forward "bumping" the weapon against the stationary trigger finger. The back- and-forth sequence allows a shooter to fire a semiautomatic rifle at rates similar to automatic rifles.
Gun Owners of Am. v. Barr
,
[2]
After a mass shooting in Las Vegas, Nevada, in October 2017, members of Congress and several
nongovernmental organizations asked ATF to examine whether bump-stock-type devices constitute machineguns.
Final Rule,
[3]
Before ruling on the motion, the district court correctly concluded that ATF’s interpretations are not
arbitrary or capricious.
Gun Owners
,
The district court’s judgment should be affirmed. Chevron provides the standard of review, even though the law under consideration has criminal applications. Applying Chevron Congress has not spoken to the precise question at issue and, after exhausting the traditional tools of statutory construction, § 5845(b) remains ambiguous. Because ATF’s interpretation of § 5845(b) is a permissible construction of the statute and is reasonable, it is entitled to Chevron deference. Additionally, even without applying deference, the Final Rule provides the best interpretation of § 5845(b). Accordingly, relief to enjoin the Final Rule from going into effect is not warranted.
I. Chevron Applies
We apply
Chevron
when “Congress delegated authority to the agency generally to make
rules carrying the force of law” and “the agency interpretation” in question “was promulgated in
the exercise of that authority.”
United States v. Mead Corp.
, 533 U.S. 218, 226–27 (2001) (“Delegation of such authority may be shown . . . by an agency’s power to engage in . . . notice-
and-comment rulemaking, or by some other indication of comparable congressional intent.”).
Here, Congress expressly delegated rulemaking authority to the Attorney General, who delegated
this authority to the director of ATF. 18 U.S.C. § 926(a); 26 U.S.C. §§ 7801(a)(2)(A), 7805(a);
28 C.F.R. § 0.130(a). ATF then promulgated the Final Rule through notice-and-comment
rulemaking, expressly invoking § 926(a) (authority to promulgate rules and regulations as are
necessary to carry out provisions of the Gun Control Act), § 7801(a)(2)(A) (authority to
administer and enforce provisions of the National Firearms Act), and § 7805(a) (authority to
promulgate all needful rules and regulations to enforce provisions of the National Firearms
Act).
[4]
Final Rule,
[4]
Moreover, when responding to comments submitted in opposition to the proposed rule, ATF described,
over several paragraphs, how
Chevron
would apply if the terms “automatically” and “single function of the trigger”
were ambiguous, and how ATF’s construction of these terms is reasonable under . Final Rule, 83 Fed. Reg.
at 66,527. This “exegesis on would have served no purpose unless the agency intended the Rule to be
legislative in character.”
Guedes
,
Gun Owners and my colleagues who argue for reversal assert that ATF’s delegated
authority is too general for
Chevron
deference to apply. Drawing a distinction between explicit
and implied delegations to an agency, and relying on pre-
Chevron
cases, they discount precedent
applying
Chevron
to regulations that have criminal applications. However,
Chevron
itself does
not suggest the distinction between implicit and express delegations of rulemaking authority that
underlies the opinion to reverse.
Moreover, the Supreme Court has considered—and rejected—the premise that an implicit
delegation somehow confers less authority than an explicit delegation. In
City of Arlington v.
F.C.C.
, the dissent argued that
Chevron
deference should apply only where a delegation of
*7
authority covered the “specific provision” before the court. 569 U.S. 290, 322–23 (2013)
(Roberts, C.J., dissenting). The majority rejected this argument, noting that the dissent could not
produce “a single case in which a general conferral of rulemaking or adjudicative authority has
been held insufficient to support
Chevron
deference for an exercise of that authority within the
agency’s substantive field.” at 306. The Court declined to adopt this proposed “massive
revision of our
Chevron
jurisprudence.”
Id.
We must do so today. Applying the statute to
determine whether a device constitutes a machinegun is within ATF’s substantive field.
See,
e.g.
,
United States v. Dodson
, 519 F. App’x 344, 348 (6th Cir. 2013);
Akins v. United States
Those who argue for reversal also claim that Chevron does not apply because the Final Rule may impose criminal sanctions. However, this is not what the case law says. Chevron itself involved an agency interpretation with criminal applications—at the time, a knowing violation of one of the disputed legislative rule’s requirements was punishable by daily $25,000 fines and imprisonment for up to a year—and yet the Supreme Court applied deference. 467 U.S. at 866; see also 42 U.S.C. §§ 7502, 7413. In another case, Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon , the Court applied Chevron when reviewing a legislative rule that attached criminal penalties. 515 U.S. 687, 703–04 (1995). And in yet another case, United States v. O’Hagan , a criminal case, the Supreme Court applied Chevron deference to a legislative rule despite the rule’s clear criminal applications and penalties. 521 U.S. 642, 673 (1997). What these cases make clear is that Chevron does not fall away simply because a challenged legislative rule has some criminal applications. [6]
The relevant question is whether Congress delegated to the agency authority to
promulgate legislative rules with criminal applications. And, when the statute gives an agency
broad power to enforce or administer all provisions of the statute, it is “clear” that the agency has
the necessary authority to do so.
See Gonzales v. Oregon
,
Further, the rule of lenity does not displace Chevron simply because an agency has interpreted a statute carrying criminal penalties. The Supreme Court considered this very question in Babbitt and said:
We have applied the rule of lenity in a case raising a narrow question concerning the application of a statute that contains criminal sanctions to a specific factual dispute . . . where no regulation was present. We have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement.
that would trigger . Nor do they mention ,
Babbitt
, or
O’Hagan
and, thus,
Apel
and
Abramski
should not be read to overrule this precedent. To be sure, there is an implied tension between the two lines of cases,
but this is for the Supreme Court to resolve, not us. Until the Court does so, we must follow ,
Babbitt
, and
O’Hagan
.
See Esquivel-Quintana v. Lynch
,
The Babbitt Court went on to determine that “the ‘harm’ regulation, which has existed for two decades and gives fair warning of its consequences,” was not such a rule-of-lenity-violating regulation. To read this sentence to mean that a regulation that breaks from a previous interpretation likely offends the rule of lenity is to apply false logic. Although the Court suggested that a longstanding regulation could hardly be expected to offend the rule of lenity, it did not suggest the converse—that any new, contrary interpretation would, by itself, trigger doubt. And, based on the remainder of the sentence, fair warning of the regulation’s consequences—in and of itself, with no relation to the age of a regulation or whether it effected a reversal in position—would undermine the rule of lenity’s applicability. [7] Further, “[a]gency inconsistency is not a basis for declining to analyze the agency’s interpretation under the framework.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 981 (2005).
Here, as in Babbitt , there is a legislative regulation—the Final Rule—which was promulgated under authority delegated to an agency and involves the interpretation of a statute with criminal applications. [8] 83 Fed. Reg. 66,514; see also 18 U.S.C. §§ 924(a)(2), 926(a); 26 U.S.C. §§ 5845(b), 5871, 7801(a)(2)(A), 7805(a); 28 C.F.R. § 0.130(a). There is no dispute *10 concerning the application of the Final Rule to a specific factual situation. Thus, under Babbitt it is clear that Chevron deference provides the standard of review, not the rule of lenity.
My colleagues in favor of reversal suggest two other reasons why Chevron ought not to apply in the context of laws with criminal consequences: deferring to agency expertise may be warranted when interpreting civil statutes but not when agencies interpret laws with criminal penalties; and delegation in the criminal context violates the separation-of-powers principle. The arguments in support of these rationales are largely based on policy, analogy, and law review articles, [9] but not precedent.
There are many areas where Congress relies on agency expertise to implement laws with criminal applications. Just to name a few, we have highly technical and complex securities, tax, workplace safety, and environmental-law regimes in which the applicable agency exercises delegated authority to promulgate regulations fleshing out statutory provisions—regulations that have both civil and criminal applications. And no one contests that criminal law and procedure afford special protections to a criminal defendant that are not accorded to a civil defendant. But it does not follow that an agency’s law-interpreting power falls away in the criminal context where the power was properly delegated to the agency and exercised through legislative rulemaking. To the extent my colleagues’ inclination to cabin agency expertise to civil applications is motivated more by a displeasure with ’s continued validity and legislative delegation more broadly, Chevron is the law and legislative delegation is a reality.
That legislative delegation is permissible undermines the separation-of-powers rationale as well. The Supreme Court has recognized Congress’s delegation authority in the criminal context for over a century. For example, in United States v. Grimaud , 220 U.S. 506 (1911), Congress delegated to the Secretary of Agriculture the power to promulgate rules—with criminal penalties—to preserve certain forest reserves. Id. at 507–09. The Secretary issued a rule prohibiting livestock grazing near these reserves without a permit. Id. at 509. The defendant sheep farmers were indicted for violating this rule. They argued that the rule was *11 unconstitutional because Congress could not “mak[e] it an offense to violate rules and regulations made and promulgated by the Secretary of Agriculture,” since doing so would “delegate its legislative power to an administrative officer.” at 513. Although Congress had not declared, “in express terms,” that it was unlawful to graze sheep on a forest reserve, the Supreme Court rejected the challenge. See id. at 521 (rejecting the argument that the rules were invalid merely “because the violation thereof is punished as a public offense”).
In the ensuing decades, several Supreme Court decisions recognized that Congress may
delegate legislative authority in the criminal context.
See, e.g.
,
J.W. Hampton, Jr. & Co. v.
United States
, 276 U.S. 394, 406–07 (1928) (“The field of Congress involves all and many
varieties of legislative action, and Congress has found it necessary to use officers of the
executive branch within defined limits, to secure the exact effect intended by its acts of
legislation, by vesting discretion in such officers to make public regulations interpreting a statute
and directing the details of its execution, even to the extent of providing for penalizing a breach
of such regulations.” (citing
Grimaud
, 220 U.S. at 518) (other citations omitted));
Yakus v.
United States
,
In
Touby v. United States
, 500 U.S. 160, 164–69 (1991), the Supreme Court upheld a
delegation of legislative authority to the Attorney General (and the Attorney General to the Drug
Enforcement Administration) to temporarily schedule substances under the Controlled
Substances Act—a determination that carried criminal implications—and rejected arguments that
this delegation violated the non-delegation doctrine or the separation of powers. The petitioners,
who were convicted for manufacturing a temporarily scheduled substance, argued that because
the delegated authority contemplated regulations with criminal sanctions, Congress was
required to provide more specific direction than the intelligible principle normally required.
Id.
*12
at 165–66. They also argued that allowing the Attorney General to both schedule particular
drugs and prosecute individuals for manufacturing them—rather than designating a different
executive to temporarily schedule the substances—violated the separation-of-powers doctrine.
Id.
at 167. Finally, the petitioners claimed that the Attorney General improperly delegated his
temporary scheduling power to the DEA.
Id.
at 169. The Court rejected all three arguments. It concluded that under any standard the statute meaningfully constrains the Attorney General’s
discretion to define criminal conduct and that the separation-of-powers doctrine was not violated.
Id.
at 167–69. Similarly, in
United States v. Stevenson
,
No one asserts that the National Firearms Act or the Gun Control Acts lacks an
intelligible principle or that the Attorney General improperly delegated power to ATF. And to
the extent that it is argued that Congress cannot give the Attorney General the power to
implement a criminal statute through rulemaking and also enforce it, this is inconsistent with
Touby
.
In sum, the district court correctly determined that provides the standard of review by which to assess the Final Rule.
II. Applying The Chevron framework consists of two steps. At step one, we ask whether the intent of Congress is clear and, if so, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” , 467 U.S. at 842–43. If, on the other hand, the court determines Congress has not directly addressed the precise question at issue and the statute is ambiguous with respect to the issue, then, at step two, we ask if the agency’s interpretation is “based on a permissible construction of the statute.” Id. at 843.
A. Step One
“Machinegun” is defined in the National Firearms Act and the Gun Control Act as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b); 18 U.S.C. § 921(a)(23). The Final Rule defines “automatically” to mean “functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger” and “single function of the trigger” to mean “a single pull of the trigger and analogous motions.” 83 Fed. Reg at 66,553. As a result, the Final Rule defines the term “machinegun” to include bump-stock-type devices. Id.
To determine whether Congress has spoken directly to the precise question at issue—
whether “machinegun” includes bump-stock devices—or whether the statute is silent or
ambiguous regarding this issue, we employ traditional tools of statutory construction.
[10]
, 467 U.S. at 843 n.9. Beginning with the statutes themselves, neither the National
Firearms Act nor the Gun Control Act defines “automatically” or “single function of the trigger.”
When considering the statutory context, dictionary definitions, and everyday situations, however,
both terms admit of more than one interpretation—that is, they are ambiguous.
See All. for
Cmty. Media v. F.C.C.
,
The phrase “single function of the trigger” is capable of two readings: one favoring the government (the “shooter-focused” reading), the other favoring Gun Owners (the “mechanical” *14 reading). The shooter-focused reading corresponds to a single “pull” of the trigger—i.e., a single human action upon the trigger that initiates a rapid-fire sequence. Under this reading, a bump- stock-equipped rifle constitutes a machinegun because a single human action—the initial “pull” of the trigger—initiates a rapid firing sequence. The mechanical reading takes the phrase “single function of the trigger” to mean “single depression of the trigger.” Under this view, a bump- stock-equipped rifle is not a machinegun because each bullet fired is initiated by a separate depression of the trigger, albeit one generated by the weapon’s recoil. Accord Guedes , 920 F.3d at 29.
Both readings are plausible. “The word ‘function’ focuses on the ‘mode of action’ . . . by
which the trigger operates. But that definition begs the question [] whether ‘function’ requires
our focus upon the movement of the trigger, or the movement of the trigger finger. The statute is
silent in this regard.”
Aposhian
,
The word “automatically” is also ambiguous. The statute provides that a machinegun is a “weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b) (emphasis added). Here, too, there are competing interpretations, and the text does not unambiguously foreclose either of them.
Gun Owners argues that the phrase “automatically” must mean by itself with little or no direct human control and, because a shooter must exert constant pressure to cause a bump-stock- equipped rifle to continue firing, these devices do not create weapons that shoot automatically. The government argues that “automatically” means self-acting or self-regulating. In the *15 government’s view, a bump-stock-equipped rifle is “self-acting” in the sense that once the shooter establishes the conditions necessary to begin the firing process—pulling the trigger, placing a finger on the extension ledge, and applying pressure on the barrel-shroud or fore-stock with the other hand—the bump stock “eliminate[s] the need for the shooter to manually capture, harness, or otherwise utilize [the recoil] energy to fire additional rounds.” Final Rule, 83 Fed. Reg. at 66,532.
According to dictionary definitions at the time the National Firearms Act was enacted,
the word “automatically”—the adverbial form of the word “automatic”—means “[h]aving a
self-acting or self-regulating mechanism that performs a required act at a predetermined point in
an operation[.]” W EBSTER ’ S N EW I NTERNATIONAL D ICTIONARY 187 (2d ed. 1934);
see also
1 O XFORD E NGLISH D ICTIONARY 574 (1933) (defining “Automatic” as “[s]elf-acting under
conditions fixed for it, going of itself”). The focus on a “self-regulating
mechanism
” cuts against
the suggestion that the word “automatically” requires complete, as opposed to partial,
automation, and lends support to ATF’s classification. Further, the argument that bump-stock-
equipped weapons do not fire “automatically” because they require constant forward pressure is
belied by common usage of the word “automatic.” For example, “an ‘automatic’ sewing
machine still ‘requires the user to press a pedal
and
direct the fabric.’”
Guedes
,
As other courts have recognized, the ultimate question is how much human input is contemplated by the word “automatically.” That is a question of degree that the statute’s text does not definitively answer. The D.C. Circuit’s explanation captures this point well:
The term “automatically” does not require that there be no human involvement to give rise to “more than one shot.” Rather, the term can be read to require only that there be limited human involvement to bring about more than one shot. See, e.g. , Webster’s New International Dictionary 157 (defining “automatically” as the adverbial form of “automatic”); id. at 156 (defining “automatic” as “self-acting or self-regulating,” especially applied to “machinery or devices which perform parts of the work formerly or usually done by hand” (emphasis added)). But how much human input in the “self-acting or self-regulating” mechanism is too much?
. . . . [T]he phrase “by a single function of the trigger” . . . can naturally be read to establish only the preconditions for setting off the “automatic” mechanism, *16 without foreclosing some further degree of manual input such as the constant forward pressure needed to engage the bump stock in the first instance. And if so, then the identified ambiguity endures. How much further input is permitted in the mechanism set in motion by the trigger? The statute does not say.
Guedes
,
In sum, because neither party’s interpretation of either term is unambiguously compelled by the statute, the statutory definition of “machinegun” contains two central ambiguities, which ATF has attempted to resolve. This leads to step two of the analysis under .
B. Step Two
When employing the
Chevron
framework, we do not ask if the agency’s construction is
the best reading of the statute. at 843 n.11. The question is whether ATF’s interpretations of
“single function of the trigger” and “automatically” are permissible.
Mead
,
Since 2006, ATF has interpreted “single function of the trigger” to mean “single pull of
the trigger,” a reading that is “consonant with the statute and its legislative history.”
Akins
,
ATF’s interpretation of “automatically” as “self-acting or self-regulating” is permissible
as well. Although this interpretation allows for some measure of human involvement, it accords
with the everyday understanding of the term and relevant dictionary definitions from when
“machinegun” was first defined in 1934 by the National Firearms Act and later slightly altered in
1968 by the Gun Control Act. For example, understanding “automatic” to allow for some human
involvement, not complete autonomy, is commonplace.
Guedes
, 920 F.3d at 31;
Aposhian
*17
958 F.3d at 989 (“The bump stock performs
part
of the work usually done by hand at a
predetermined point in the operation, under conditions fixed for it by the shooter.”).
Additionally, Webster’s New International Dictionary defined “automatic” as “[h]aving a self-
acting or self-regulating mechanism,” and dictionaries from 1965 and 1967 do the same.
W EBSTER ’ S N EW I NTERNATIONAL D ICTIONARY 187 (2d ed. 1934); W EBSTER ’ S T HIRD N EW
I NTERNATIONAL D ICTIONARY 148 (1965); W EBSTER ’ S S EVENTH N EW C OLLEGIATE D ICTIONARY 60 (1967). ATF’s interpretation of “automatically” is therefore a permissible construction.
Accord Aposhian
,
In sum, § 5845(b) is ambiguous and ATF’s construction of it is permissible and reasonable. The court must therefore defer to ATF’s interpretation.
III. Assuming Chevron Does Not Apply
Assuming arguendo that
Chevron
does not apply, the district-court judgment should still
be affirmed. Because ATF has been entrusted to administer both the National Firearms Act and
the Gun Control Act, and its views “constitute a body of experience and informed judgment to
which courts . . . may properly resort for guidance,” its construction of § 5845(b) is not “outside
the pale of any deference whatever.”
Mead
,
In ten letter rulings issued between 2008 and 2017, ATF applied its “single pull of the trigger” interpretation to other bump-stock-type devices but ultimately concluded that the devices were not machineguns because they did not “automatically” shoot more than one shot with a single pull. Final Rule, 83 Fed. Reg. at 66,517. None of them, however, extensively examined the meaning of “automatically.” Id. Moreover, this position was inconsistent with the position taken by ATF in 2006, when it concluded that one such bump-stock-type device—the Akins Accelerator, which allowed the shooter to initiate an automatic firing cycle by pulling the trigger once, thereby harnessing the recoil energy of the rifle to fire more than one shot without further human input by means of internal springs within the device—was a machinegun. Id. After the 2017 mass shooting in Las Vegas, Nevada, ATF recognized that its earlier letter rulings failed to provide substantial or consistent legal analysis regarding the meaning of the term “automatically” and deviated from its 2006 position defining a bump-stock-type device as a machinegun, [12] which the Final Rule sets out to correct. Id. at 66,517–18.
ATF unquestionably has abundant experience and expertise in determining which devices constitute machineguns. Additionally, the Final Rule went through the highly formal process of notice and comment. And, in promulgating the Final Rule, ATF responded to over 186,000 comments—including one by Plaintiff Gun Owners on behalf of more than 1.5 million gun owners—and provided expansive reasoning for why bump stocks are machineguns, demonstrating a great degree of care in considering the issue. These factors—together with the validity of ATF’s reasoning—entitle ATF’s interpretation to at least Skidmore deference.
Finally, ignoring all deference, ATF’s interpretation of the statute is the best one. According to Gun Owners and my colleagues favoring reversal, Congress meant only to prohibit weapons capable of firing more than one shot with a single mechanical depression of the trigger. *19 This interpretation would exclude semiautomatic rifles with bump stocks attached because they fire only a single shot each time the trigger is depressed—notwithstanding that the trigger is depressed by the operation of the bump stock and the bump stock allows the shooter to fire semiautomatic rifles at the rapid rates of automatic weapons with one activation of the trigger. However, this reading neglects to account for how “automatically” and “single function of the trigger” work together as a practical matter, and therefore fails to give full meaning to the statutory definition.
When reading the key statutory terms of “machinegun” in conjunction with each other—
“any weapon which shoots,” “automatically more than one shot,” “by a single function of the
trigger”—the definition refers to any weapon that is capable of discharging multiple rounds by
means of a mechanism set in motion by a single function of the trigger. Courts have recognized
“single function” to mean “single pull,” as this is “consonant with the statute and its legislative
history,”
Akins
,
Thus, the best interpretation of § 5845(b) is that Congress, in defining “machinegun” as it
did, intended to prohibit weapons capable of discharging multiple rounds continuously by means
of a self-regulating mechanism initiated by a single human input on the trigger. This is precisely
the interpretation the Final Rule provides. And, as the Final Rule thoroughly explains, this is
exactly how a bump stock operates: after a shooter gets into position, a single pull of the trigger
by the shooter initiates a sequence in which the bump stock harnesses and directs the firearms’
recoil energy so that the firearm fires continuously without additional physical manipulation of
the trigger by the shooter or any manual reloading.
Thus, not only does ATF’s interpretation warrant Skidmore deference, but, in the absence of all deference, and simply as a matter of statutory interpretation, it also embodies the best reading of the statute.
* * *
In sum, the rule of lenity is inapplicable. The framework applies to ATF’s legislative regulation—the Final Rule; and because the statute is ambiguous and ATF’s construction is permissible and reasonable, it warrants deference. Alternatively, ATF’s interpretation of the statute is entitled to Skidmore deference. Finally, simply as a matter of statutory interpretation, the Final Rule embodies the best interpretation of the statute and operates to provide fair notice of that interpretation. The district court’s judgment should be affirmed.
___________________________________________________________________________
OPINION IN SUPPORT OF AFFIRMING THE DISTRICT COURT’S JUDGMENT ___________________________________________________________________________
GIBBONS, Circuit Judge, writing in support of affirming the district court judgment. I agree with Judge White’s assertion that applies to statutes with criminal penalties and her conclusion of the outcome under . I write separately, as Judge White ultimately concludes in the alternative, because application is unnecessary here. The ATF’s interpretation of “single function of the trigger” and “automatically” is unambiguously the best interpretation of the Gun Control Act using ordinary tools of statutory construction. Congress specifically prohibited “any part designed and intended solely and exclusively . . . for use in converting a weapon into a machinegun.” 26 U.S.C. § 5845(b). As a part designed to convert a semiautomatic gun into a gun with machinegun functionality that “automatically” allows for multiple shots with a “single function of the trigger,” a bump stock is unambiguously a machinegun. When a shooter pulls the trigger of a firearm fitted with a bump stock, the gun, through “a self-acting or self-regulating mechanism,” 83 Fed. Reg. 246, 66514, 66519 (Dec. 26, 2018), fires “more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). Indeed, that is precisely what a bump stock is designed to allow a gun to do, and that is why people purchase bump stocks. Holding otherwise would allow gun manufacturers to circumvent Congress’s longtime ban on machineguns by designing parts specifically intended to achieve machinegun functionality with a single pull of the trigger so long as the part also requires some minutia of human involvement.
_________________
DISSENT
_________________
MURPHY, Circuit Judge, dissenting. Since the early days of our Republic, it has been a
bedrock legal principle that our government cannot criminalize conduct and send people to
prison except through democratically passed laws that have made it through both Houses of
Congress and been signed by the President.
See United States v. Hudson
,
In 1986, Congress amended the Gun Control Act of 1968 to make it a crime to possess a
“machinegun,” 18 U.S.C. § 922(o)(1), a term defined in the National Firearms Act of 1934, 26
U.S.C. § 5845(b).
Gun Owners of Am., Inc. v. Garland
,
Judge Batchelder’s panel opinion persuasively explained that neither the Gun Control Act
nor the National Firearms Act gives the ATF the power to expand the law banning machine guns
through this legislative shortcut.
Gun Owners
,
I
This case implicates administrative-law questions with significance for many statutes. At
bottom, though, it raises a pure question of statutory interpretation: Are rifles fitted with bump
stocks “machineguns” under the definition in 26 U.S.C. § 5845(b)? We have long described this
type of question as “the bread and butter of the work of federal courts.”
Dolfi v. Pontesso
The parties largely agree on the “basic” facts. U.S. Bank Nat’l Ass’n v. Vill. at Lakeridge, LLC , 138 S. Ct. 960, 966 (2018). Many rifles are either “automatic” or “semiautomatic.” An “automatic” rifle continuously fires shots with one activation of the trigger, so a shooter must release the trigger to stop firing. See Webster’s Ninth New Collegiate Dictionary 118 (1984); Webster’s New International Dictionary of the English Language 187 (2d ed. 1934) (“ Webster’s Second ”). A “semiautomatic” rifle fires only one shot with one activation of the trigger, so a shooter must release and reengage the trigger for each shot. See Webster’s Second , supra , at 2274.
Automatic weapons usually fire at greater speeds than semiautomatic weapons because
the shooter can hold down the trigger to keep firing and need not repeatedly release and reengage
it.
See
Bump-Stock Rule,
A bump stock also helps a shooter engage in rapid bump firing. It replaces a semiautomatic rifle’s standard stock with one that allows the rifle to slide back and forth within the stock by about 1.5 inches. Id. at 66,516, 66,518. This bump stock channels the recoil energy from the rifle’s discharge in “constrained linear rearward and forward paths” and relieves the shooter of the need to “manually capture and direct” the recoil energy. Id. at 66,532. Yet a shooter still must use the non-trigger hand to put forward pressure on the fore-end so that the rifle and trigger move forward after the recoil. Id. at 66,518. When the shooter’s manual pressure pushes the trigger forward, it bumps into the trigger finger and discharges a second shot. The process repeats itself rapidly in the same general manner that it would were the shooter to bump fire without a bump stock.
Given these facts, a bump stock does not qualify as a “machinegun.” 26 U.S.C. § 5845(b); 18 U.S.C. § 921(23). Congress defined the word to cover both a weapon that “shoots” “automatically more than one shot” “by a single function of the trigger” and a “part” that is “designed” “exclusively” “for use in converting a weapon into a machinegun”:
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely *25 and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
26 U.S.C. § 5845(b). For a bump stock to be a “machinegun” under this definition, a rifle fitted with that device must qualify as one. Yet such a “bump-stock rifle” does not qualify.
To begin with, a bump-stock rifle does not shoot “more than one shot” “by a single
function of the trigger.” A “function” of a tangible thing is the “natural and proper action” that it
performs.
Webster’s Second
,
supra
, at 876;
American Heritage Dictionary of the English
Language
533 (1969). Put another way, a thing’s “function” is “the action for which
[the] . . . thing is specially fitted or used or for which [the] thing exists[.]”
Webster’s Ninth supra
, at 498. And putting a bump stock on a semiautomatic rifle does not change the “function”
of its “trigger”: to discharge one round per depression. All agree that a bump-stock rifle’s trigger
must be released and “re-engage[d]” between shots—just as occurs with ordinary bump firing.
Further, the discharge of more than one shot “by a single function of the trigger” does not
alone make a firearm a “machinegun.” The firearm must also do so “automatically.” That is, it
must operate “in a manner essentially independent of external influence or control,”
American
Heritage
,
supra
, at 90, or in a “self-acting or self-regulating” manner,
Webster’s Ninth
,
supra
, at
118. What type of weapon might shoot multiple shots “by a single function of the trigger” but
not do so “automatically”? The Bump-Stock Rule gave an example. A certain pump-action
shotgun fires multiple shots with one trigger depression if the shooter pumps the shotgun with
the non-trigger hand to load and shoot additional shells.
Lastly, this interpretation fits the context. The statutory text defines the word
“machinegun.”
See Johnson v. United States
,
*
The ATF’s contrary view commits two errors. It rewrites the phrase “by a single function of the trigger.” And it interprets the adverb “automatically” out of context.
By a Single Function of the Trigger
. Although the ATF does not dispute that a bump-
stock rifle’s trigger must be released and reengaged for each shot, it says that the rifle shoots
multiple shots “by a single function of the trigger.” Its logic for this head-scratching result starts
by rewriting “single function of the trigger” to mean “single pull of the trigger.” Bump-Stock
Rule,
This reading conflicts with basic interpretive principles. To rewrite “function” to mean
“pull,” the ATF cites a Supreme Court footnote and a snippet of legislative history.
See id.
at
66,518. It should have started with the word’s ordinary meaning.
See Encino Motorcars, LLC v.
Navarro
,
The ATF’s sources do not help it. In
Staples v. United States
,
The ATF next turns to legislative history. The President of the National Rifle
Association noted that a firearm “which is capable of firing more than one shot by a single pull
of the trigger, a single function of the trigger, is properly regarded, in my opinion, as a machine
*28
gun.”
National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways & Means
,
H.R. 9066, 73rd Cong. 40 (1934). “But legislative history is not the law.”
Epic Sys. Corp. v.
Lewis
,
Congress had good reason for this word choice. Even the ATF cannot stick with its own “pull” test. It recognizes that this word might exclude from the “machinegun” definition weapons that repeatedly shoot with one push of a button. Bump-Stock Rule, 83 Fed. Reg. at 66,534. So the ATF expands its interpretation of “function of the trigger” to cover not just a “pull” but also “analogous motions.” Id. This change should disqualify rifles fitted with bump stocks. The shooter’s act of pushing the trigger into the trigger finger is an “analogous motion” for each shot of such a rifle. The rifle thus does not shoot multiple shots by a shooter’s single “pull” of or other “motion” on the trigger.
Automatically . The ATF agrees that “automatically” means operating “as the result of a self-acting or self-regulating mechanism[.]” 83 Fed. Reg. at 66,519. And, as the ATF recognized for a decade, shooters must use manual force with the non-trigger hand to reengage the trigger between each shot of a bump-stock rifle. See id. at 66,532. But the ATF now says that this rifle acts “automatically” because its bump stock mechanically channels the recoil energy, so shooters need not “manually capture and direct recoil energy” themselves.
This view reads the word “automatically” in isolation, not in context.
See Johnson
The ATF’s reading also leaves the statute entirely unclear concerning the amount of human involvement necessary to distinguish a “machinegun” from an ordinary firearm. I would read the statute to set a rule: a gun shoots automatically by a single function of the trigger as long as the shooter need only manually cause the trigger to engage in a “single” function in order to fire multiple shots. See Guedes , 920 F.3d at 46–47 (Henderson, J., concurring in part and dissenting in part); Aposhian , 989 F.3d at 896 (Tymkovich, C.J., dissenting). So a typical machine gun qualifies even though the shooter pulls the trigger and keeps it pressed down because that combined external influence still does no more than result in one action of the trigger. I am, by contrast, at a loss over the amount of human influence that disqualifies a weapon as a machine gun under the ATF’s view that “function” really means “pull.” All agree that the shooter must exert “external influence” in addition to a single pull of the trigger. American Heritage , supra , at 90. So why does the bump-stock rifle shoot more automatically than the pump-action shotgun that also requires further human input? And why does the manual capturing of recoil energy render ordinary bump firing nonautomatic? The answers to these questions cannot be found in the amorphous law that the ATF has attempted to draft.
The ATF lastly claims that my reading conflicts with caselaw addressing a redesigned
semiautomatic rifle that allows a shooter to press a switch to keep the rifle firing until the release
of the switch. ATF Supp. Br. 11–12 (citing
United States v. Camp
, 343 F.3d 743 (5th Cir.
2003)). But this caselaw holds only that a traditional rifle trigger need not be the “trigger” under
§ 5845(b) and that the
switch
can qualify as this rifle’s trigger.
Camp
,
In sum, a shooter manually reengages the trigger of a bump-stock rifle after each shot, so the rifle does not “automatically” shoot more than one shot “by a single function of the trigger.”
II
The circuit courts that have upheld the Bump-Stock Rule have not suggested that the
ATF’s contrary view “is the better reading of the statute.”
Guedes
,
I find three problems with this approach. First , the courts justify their use of Chevron with irrelevant cases that interpret statutes expressly delegating power to an agency to enact criminal regulations. Second , the courts wrongly expand ’s domain by holding that Congress impliedly delegated to the Attorney General the power to interpret a criminal law merely because it gave him a general authority to enact regulations. Third , even under ’s regime, the courts improperly find ambiguity without attempting to figure out the statute’s meaning.
A. The circuit courts wrongly allow a federal agency to create a regulatory crime
without an express delegation of criminal policymaking power from Congress.
The circuit courts that uphold the Bump-Stock Rule justify their reliance on “
Chevron
deference” by citing cases that permit Congress to
expressly
delegate to an agency the power to
create a regulatory standard backed by criminal penalties.
Guedes
, 920 F.3d at 24, 28 (citing
United States v. O’Hagan
,
When Congress regulates private parties, it sometimes expressly gives a federal agency a
policymaking power to adopt the governing standard of conduct. As one example, Congress told
the Attorney General that he may add to the list of “controlled substances” that cannot be sold.
21 U.S.C. § 811;
Touby
,
A party can challenge these express delegations in various ways.
See United States v.
Mead Corp.
,
Critically, though, a party may not challenge this type of regulation on the ground that
Congress did not give the agency the power to adopt it in the first place. Of course it did. Its
express
delegation leaves this statutory-interpretation question with an unambiguous answer.
But that express delegation does not trigger “
Chevron
deference.”
Cf. Cuozzo Speed Techs., LLC
v. Lee
, 136 S. Ct. 2131, 2148 (2016) (Thomas, J., concurring). Well before , the
Supreme Court noted that it should defer to a regulation with “legislative effect” when Congress
expressly delegated policymaking authority to the agency.
Batterton v. Francis
,
These express-delegation cases thus are irrelevant to whether the Gun Control Act and the National Firearms Act contain implied delegations to the Attorney General. (The Acts *32 identify the Attorney General as the enforcing official, and he has designated the ATF to act on his behalf. 28 C.F.R. § 0.130(a)(1)–(2).) Unlike in O’Hagan (in which Congress gave the SEC the power to define “fraudulent” acts), these Acts do not expressly give the Attorney General the power to define “machinegun.” And unlike in Touby (in which Congress gave the Attorney General the ability to add to the list of “controlled substances”), the Acts do not expressly give the Attorney General the ability to add to a list of “machineguns.” Congress instead defined “machinegun” itself.
*
If anything, the use of this express-delegation precedent in ’s implied-delegation
context marks a sharp break from past practice. The cases allowing agencies to create criminal
regulations come with an important safeguard: Congress
itself
must “make[] the violation of
regulations a criminal offense and fix[] the punishment[.]”
Loving v. United States
, 517 U.S.
748, 768 (1996). So when a statute left unclear whether Congress gave an agency the power to
create regulatory crimes, the Supreme Court refused to interpret the statute as granting this
power.
See United States v. Eaton
, 144 U.S. 677, 687–88 (1892). Congress must act
“distinctly”—i.e., clearly—if it wants to allow agencies to enact criminal rules with the force of
law. at 688;
Grimaud
,
The clear-statement rule is “not a judicial sport.”
Singer
,
The circuit courts that use the express-delegation precedent to invoke flout this clear-statement rule and the separation-of-powers principle that it protects. The Bump-Stock Rule creates a new regulatory crime that bars the possession of bump stocks. Yet it does so allegedly pursuant to only an implied (not a distinct) congressional delegation of power.
The courts all agree that the Bump-Stock Rule purports to be a legislative rule that
creates a new crime with the “force and effect of law”; it does not claim to be an interpretive rule
that merely construes the “machinegun” ban in 18 U.S.C. § 922(o)(1).
See, e.g.
,
Guedes
,
920 F.3d at 18 (citation omitted). The crime’s effective date shows as much. For a decade
before the Bump-Stock Rule, the ATF issued advisory letters indicating that the bump stocks at
issue here are not machine guns. Bump-Stock Rule, 83 Fed. Reg. at 66,516. Its position
nurtured the creation of an entire bump-stock industry, complete with manufacturers, retailers,
and consumers.
Id.
at 66,545–48. By the time of the Bump-Stock Rule, consumers had bought
some $100 million worth of bump stocks. at 66,515. If this rule merely interpreted
§ 922(o)(1)’s “machinegun” ban, the people who owned bump stocks during this time would all
along have been committing felonies (on the ATF’s advice).
See
18 U.S.C. § 924(a)(2). Yet the
ATF did not seek to throw these bump-stock owners into prison. The Bump-Stock Rule instead
purports to criminalize behavior that was
previously
lawful: “Anyone currently in possession of a
bump-stock-type device is not acting unlawfully unless they fail to relinquish or destroy their
device after the effective date of this regulation.”
To enact this new regulatory crime, the ATF (the Attorney General’s designee) must
identify a statutory provision “distinctly” empowering the Attorney General to do so.
Eaton
To be sure, Congress gave the Attorney General the general power to issue “such rules
and regulations as are necessary to carry out the provisions” of the Gun Control Act. 18 U.S.C.
§ 926(a). And it gave the Attorney General the general power to “prescribe all needful rules and
regulations for the enforcement of” the National Firearms Act. 26 U.S.C. §§ 7805(a),
7801(a)(2)(A)(i). But these grants of general rulemaking power (which exist in most statutes)
are not express delegations of power to adopt substantive criminal rules like those in
O’Hagan
and
Touby
. To the contrary, a grant of general rulemaking authority can show only Congress’s
implied
delegation to an agency to resolve ambiguities under .
See Mayo Found. for
Med. Educ. & Rsch. v. United States
,
Further, no other provision gives the Attorney General the power to issue a criminal rule implementing the Gun Control Act’s “machinegun” ban, 18 U.S.C. § 922(o)(1), or the “machinegun” definition that it incorporates from the National Firearms Act, id. § 921(a)(23); 26 U.S.C. § 5845(b). This omission is telling. When the Gun Control Act permits the Attorney General to enact rules backed by criminal sanctions, it says so expressly. Section 923, for *35 example, requires licensed firearms distributors to keep such records “as the Attorney General may by regulations prescribe” and makes it a misdemeanor for licensees to violate its recordkeeping provisions “or the regulations promulgated thereunder.” 18 U.S.C. §§ 922(m), 924(a)(3)(B). Yet the Act otherwise “contains no power authorizing [the Attorney General] to promulgate criminal regulations,” such as regulations implementing § 922(o)(1)’s “machinegun” ban. Stephen P. Halbrook, Firearms Law Deskbook § 4:6, Westlaw (database updated Oct. 2021). Likewise, the National Firearms Act authorizes the Attorney General to issue regulations about, for example, licensing or registration requirements. 26 U.S.C. §§ 5812(a), 5822, 5841(c), 5842–44; see also id. §§ 5851(b), 5852(f), 5853(c), 5854. The Act also makes a violation of its own “provisions” a crime. Id. §§ 5861, 5871. But nothing in it allows the Attorney General to issue a legislative rule that changes the scope of its “machinegun” definition. Under normal interpretive principles, we should view the express inclusions and omissions of regulatory authority as intentional legislative choices. See Gonzales v. Oregon 546 U.S. 243, 262–63 (2006); Russello v. United States , 464 U.S. 16, 23 (1983); Merrill & Watts, supra , at 471–72, 487.
One last point. For those persuaded by such things, the Gun Control Act’s original drafters discarded a provision that would have given the Attorney General the power to adopt legislative rules backed by criminal sanctions. One version of the Act would have broadly attached criminal penalties to a violation of any rule or regulation promulgated under the Act. See S. 917, 90th Cong. § 924(a) (as reported by Senator McClellan, Apr. 29, 1968). But Senator Griffin of Michigan led the charge in opposition to this language, explaining that “if there is one area in which we should not delegate our legislative power, it is in the area of criminal law.” 114 Cong. Rec. 14,792 (1968). Senator Baker of Tennessee also explained how problematic it would be to allow a future administration to “change or alter a rule or a regulation” that is criminal “and thus place in the hands of an executive branch administrative official the authority to fashion and shape a criminal offense to his own personal liking[.]” These senators successfully persuaded Congress to omit this “rules or regulations” catchall from what is today the penalty section in 18 U.S.C. § 924(a). See id. at 14,793. We disrespect its choice if we uphold a regulation like the Bump-Stock Rule that purports to create a new regulatory felony that did not exist before.
B. The circuit courts wrongly find in a generic grant of rulemaking authority an implied delegation permitting an agency to authoritatively interpret criminal laws.
Apart from their disregard of the clear-statement rule that predates Chevron , the circuit courts that uphold the Bump-Stock Rule wrongly rely on Chevron ’s implied-delegation presumption even on that case’s own terms. They apply its presumption solely because (1) the Attorney General has general rulemaking power under the Gun Control Act and the National Firearms Act, 18 U.S.C. § 926(a); 26 U.S.C. § 7805(a), and (2) the ATF (the Attorney General’s designee) issued the Bump-Stock Rule under that power. See Aposhian , 958 F.3d at 979–81. I disagree. While a generic rulemaking provision might sometimes show an implied delegation that allows an agency to resolve a statutory ambiguity through a regulation, Mayo , 562 U.S. at 57, such a provision does not always do so. And it falls well short of showing an implied delegation here.
Start with some background. Before
Chevron
, the Supreme Court applied a totality-of-
the-circumstances test “on a statute-by-statute basis” to decide whether a statute impliedly
delegated power to an agency to interpret an ambiguous provision. Antonin Scalia,
Judicial
Deference to Administrative Interpretations of Law
, 1989 Duke L.J. 511, 516; Stephen Breyer,
Judicial Review of Questions of Law and Policy
, 38 Admin. L. Rev. 363, 365–72 (1986).
might have been read to dramatically depart from this approach. Some viewed it as
creating a broad rule that Congress impliedly delegated to agencies the power to resolve all
ambiguous provisions across all statutes. Scalia,
supra
, at 516;
cf. City of Arlington v. FCC
,
Yet the Court has not adopted that absolutist view. Rather, before proceeding through
’s two-step test, it has repeatedly conducted a threshold inquiry (what some have labeled
Chevron
“step zero”) that requires us to ask whether the specific statute at issue leaves the
specific interpretive question for the agency or the courts to resolve. Merrill & Hickman,
supra
,
at 836, 873–89. As the Court has noted, “different statutes present different reasons for
considering respect for the exercise of administrative authority or deference to it.”
Mead
Two examples prove my point. The Court has rejected
Chevron
’s implied-delegation
presumption for “major questions” about a statute.
See King
,
The Court has also rejected
Chevron
deference for statutory issues that have traditionally
fallen within the courts’ interpretive domain.
See Adams Fruit Co. v. Barrett
,
Identical logic extends to the criminal laws, so these decisions make this case easy at
’s threshold step. The Gun Control Act bans “machineguns” and imposes a potential
10-year prison sentence for violations. 18 U.S.C. §§ 922(o)(1), 924(a)(2). I would not interpret
Congress’s grant of rulemaking authority in the Gun Control Act (18 U.S.C. § 926(a)) or the
National Firearms Act (26 U.S.C. § 7805(a)) as impliedly delegating to the Attorney General the
“extraordinary authority” to invent new gun crimes.
Gonzales
,
As an initial matter, a presumption that Congress impliedly gave the Attorney General the
power to interpret the criminal laws would further undercut our separation of powers. The
Constitution ensures that the government cannot imprison a person without a consensus from all
three branches.
See Gun Owners
,
Admittedly, it is our duty to say what civil laws mean too. But there would be nothing
unusual about refusing to extend ’s civil presumption to this criminal setting. Criminal
laws have the most serious repercussions for individuals, potentially depriving them of their
liberty or lives.
See United States v. Bass
, 404 U.S. 336, 348 (1971). So our legal traditions
include many safeguards unique to that context. To name two, prosecutors must prove their case
beyond a reasonable doubt (rather than by a preponderance of the evidence),
see In re Winship
,
In addition, ’s presumption that Congress impliedly gave the Attorney General
the power to interpret the criminal laws conflicts with a preexisting due-process presumption that
has long affected the courts’ interpretation of those laws.
See United States v. Davis
, 139 S. Ct.
2319, 2325 (2019). Courts presume that Congress means for criminal laws to give ordinary
people “fair warning” of the conduct that the laws proscribe.
McBoyle v. United States
, 283 U.S.
25, 27 (1931). When faced with the task of choosing between two plausible “readings of what
conduct Congress has made a crime,” then, a court will reject the “harsher alternative” in favor
of the more lenient one.
Jones v. United States
,
notice presumption (which dates to the Founding). For one thing, it would require us to presume
that Congress meant to give the Attorney General the power to expand the scope of an
ambiguous criminal law by adopting the “harsher alternative” without the “clear and definite”
*40
statement that we usually expect.
Jones
,
Lastly, imagine what it would mean if, as the D.C. Circuit found, the Attorney General’s
general rulemaking authority in 18 U.S.C. § 926(a) allows him to issue authoritative
interpretations of the many crimes in § 922.
See Guedes
,
Courts have also struggled to interpret the Armed Career Criminal Act, which imposes an
enhanced sentence on those who illegally possess firearms and have three prior “violent felony”
convictions. 18 U.S.C. § 924(e);
see, e.g.
,
Borden v. United States
,
In sum, the generic grants of rulemaking power on which other circuit courts have relied
do not provide the “clear indication” that courts should demand before construing a criminal law
to delegate our interpretive authority to the Attorney General.
SWANCC
,
*
The circuit courts that take the opposite view suggest that
Babbitt v. Sweet Home Chapter
of Communities for a Great Oregon
,
Yet
Babbitt
confirms that
Chevron
’s implied-delegation presumption does not apply here.
While
Babbitt
cited in passing, it did not “rest on ’s fiction that ambiguity in a
statutory term is best construed as an implicit delegation of power to an administrative agency to
determine the bounds of the law.”
Cuozzo
,
In this case, by contrast, the Bump-Stock Rule attempts to “rest on ’s fiction” by
suggesting that Congress “implicitly left” to the Attorney General the power to interpret the
“machinegun” definition.
Cuozzo
, 136 S. Ct. at 2148 (Thomas, J., concurring); Bump-Stock
Rule,
I disagree with the other circuit courts’ competing interpretation of Babbitt . These courts have read that decision as instead holding that—while ’s implied-delegation presumption does not apply for pure criminal laws—it can apply when a law has “both civil and criminal implications.” Aposhian , 958 F.3d at 982–83. This case shows that any distinction between “pure” criminal laws and “hybrid” criminal-civil laws is a mirage. If the Court reads Babbitt as triggering ’s presumption, it will reach nearly all criminal laws.
To begin with, although the “take” regulation in the Endangered Species Act has many
civil applications,
see, e.g.
, 16 U.S.C. § 1540(g), the Bump-Stock Rule has “predominately
criminal” ones,
Aposhian
,
In addition,
Babbitt
emphasized that the “take” regulation had “existed for two decades”
largely unchanged from near the time of the Act’s passage and so had provided “a fair warning
of its consequences.” 515 U.S. at 690, 691 n.2, 704 n.18. Giving some deference to this
regulation,
id.
at 703, comports with the respect that courts have shown “longstanding and
contemporaneous executive interpretations of law[.]” Aditya Bamzai,
The Origins of Judicial
Deference to Executive Interpretation
, 126 Yale L.J. 908, 916 (2017) (emphasis omitted). The
same cannot be said for a decision to apply ’s presumption here because the Bump-
Stock Rule departed from the ATF’s decade-long view.
C. The circuit courts do not attempt to construe the statutory “machinegun” definition using traditional canons of construction before deferring to the ATF’s view.
Even if
Chevron
’s two-step test applied, the circuit courts that have upheld the Bump-
Stock Rule wrongly find ambiguity in the “machinegun” definition at step one without even
attempting to interpret the statute themselves.
See Aposhian
, 958 F.3d at 979–81;
Guedes
At
Chevron
step one, a court must ask whether the relevant statutory text is “ambiguous
with respect to the specific issue” before the court. 467 U.S. at 843. If the text conveys an
“unambiguously expressed” meaning, the court must apply it as written. ;
see, e.g.
,
MCI
Telecomms. Corp. v. Am. Tel. & Tel. Co.
,
Both the Supreme Court and our court have explained how to answer this crucial
ambiguity question. A finding of ambiguity can occur only at the end of our usual interpretive
process. In other words, a court must do its “best to determine the statute’s meaning before
giving up, finding ambiguity, and deferring to the agency.”
Arangure v. Whitaker
,
After employing all of the traditional tools of construction in this case, I would find that the statutory “machinegun” definition unambiguously excludes bump stocks for the reasons I identified at the outset. The circuit courts that find this statutory definition ambiguous, by contrast, violate two of the Supreme Court’s interpretive principles at this stage of .
First
, these circuit courts give the type of “reflexive deference” to the ATF that the
Supreme Court has rejected when deciding whether a statute is unambiguous under .
Pereira
,
A comparison of this “cursory analysis” to recent Supreme Court decisions shows the
stark conflict in approaches.
Pereira
,
Second
, these circuit courts wrongly throw out the rule of lenity when interpreting the
statutory “machinegun” definition at
Chevron
step one.
See Aposhian
, 958 F.3d at 982–84;
Guedes
, 920 F.3d at 27–28. The Supreme Court has told us that we must use the standard
canons of construction to decide whether a statute is unambiguous at this stage.
See Epic
, 138
S. Ct. at 1630;
SWANCC
, 531 U.S. at 173–74. And the rule of lenity is one of the most
traditional tools in our interpretive “toolkit.”
Kisor
,
The courts that take the opposite view rely on a footnote from
Babbitt
that rejected the
use of the rule of lenity when deferring to the Secretary’s regulation implementing the “take”
prohibition in the Endangered Species Act.
* * *
By continuously firing at rapid speeds with one activation of the trigger, machine guns
can inflict great harm in short periods. And no doubt many people believe that rifles equipped
with bump stocks share the same dangerous traits that led Congress to ban machine guns.
Bump-Stock Rule,
ENTERED BY ORDER OF THE COURT ___________________________________ Deborah S. Hunt, Clerk
Notes
[*] Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Batchelder, a senior judge of the court who sat on the original panel in this case, participated in this decision. Judge Readler recused himself from participation in this decision.
[1] The district court succinctly described bump-stock-type devices: The stock of a rifle is the portion of the weapon behind the trigger and firing mechanism and extends rearward towards the shooter. The forward part of the stock just behind the trigger
[5]
Gun Owners argues that ATF waived by disclaiming any reliance on it in this litigation. But, if
we were to recognize such litigation positions as effective waivers in the context of legislative rules, we would allow
agencies to evade the Administrative Procedure Act’s requirement to use the same notice-and-comment process to
amend or repeal a rule as used to promulgate it.
See Guedes
,
[6]
United States v. Apel
,
[7]
Even if the Final Rule were to be attacked in relation to its application to a specific factual dispute, it
underwent the notice-and-comment process and over 186,000 comments were received, including one by Gun
Owners on behalf of more than 1.5 million gun owners. The Final Rule was also published in the Federal Register.
It is doubtful that these procedures provide such inadequate notice of potential liability as to offend the rule of
lenity.
See Guedes
,
[8]
The circumstances in
Babbitt
are analogous to the circumstances here. In
Babbitt
, Congress defined the
word “take” but did not further define the terms it used to define “take.”
[9] For an article expressing a contrary view, see Sanford N. Greenberg, Who Says It’s a Crime: Chevron Deference to Agency Interpretations of Regulatory Statutes That Create Criminal Liability , 58 U. P ITT . L. R EV . 1 (1996), especially Section III.
[10]
The rule of lenity is a canon of construction. However, as discussed, it does not foreclose
Chevron
deference in the context of legislative rules interpreting statutes with criminal applications. Additionally, it “only
serves as an aid for resolving an ambiguity,” meaning that it “comes into operation at the end of the process of
construing what Congress has expressed” and only “when the ordinary canons of statutory construction have
revealed no satisfactory construction.”
Lockhart v. United States
, 577 U.S. 347, 361 (2016);
Callanan v. United
States
, 364 U.S. 587, 596 (1961). As such, perhaps the rule of lenity would have a role to play if a permissible
construction of Congress’s intent could not be found by the end of the
Chevron
analysis.
See Maracich v. Spears
[11] Accord Guedes , 920 F.3d at 29 (“A mechanical perspective, for instance, might focus on the trigger’s release of the hammer, which causes the release of a round. From that perspective, a ‘single function of the trigger’ yields a single round of fire when a bump-stock device moves the trigger back and forth. By contrast, from the perspective of the shooter’s action, the function of pulling the trigger a single time . . . yields multiple rounds of fire. . . . Neither of those interpretations is compelled (or foreclosed) by the term ‘function’ in ‘single function of the trigger.’ The word ‘function’ focuses our attention on the ‘mode of action’ . . . by which the trigger operates. But the text is silent on the crucial question of which perspective is relevant.” (citations omitted)).
[12] Although the bump-stock-type devices described in the Final Rule harness the recoil energy of a rifle differently than the Akins Accelerator—by means of a sliding stock that allows the weapon to slide back into the shooter’s shoulder after the discharge of a round and then forward into the stationary trigger finger by maintaining pressure on the barrel-shroud or fore-grip of the rifle, rather than internal springs—both are designed to the same end. They each harness a rifle’s recoil energy to produce an automatic firing cycle beginning with a single pull of the trigger and continuing without additional manipulation of the trigger or significant manipulation of the firearm by the shooter until the trigger finger is withdrawn, the weapon malfunctions, or the ammunition supply is exhausted. 83 Fed. Reg. at 66,517–18. The absence of significant manipulation of the firearm distinguishes the bump stock from the pump-action shotgun.