GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; VIRGINIA CITIZENS DEFENSE LEAGUE; MATT WATKINS; TIM HARMSEN; RACHEL MALONE, Plaintiffs-Appellants, GUN OWNERS OF CALIFORNIA, INC., Movant, v. MERRICK B. GARLAND, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; REGINA LOMBARDO, in her official capacity as Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees.
No. 19-1298
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: December 3, 2021
Argued: October 20, 2021
21a0279p.06
SUTTON, Chief Judge; BATCHELDER, MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN and MURPHY, Circuit Judges.*
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). On Petition for Rehearing En Banc. United States District Court for the Western District of Michigan at Grand Rapids; No. 1:18-cv-01429—Paul Lewis Maloney, District Judge.
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.
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.”
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.
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.
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, 992 F.3d 446 (6th Cir. 2021), reh’g en banc granted, opinion vacated, 2 F.4th 576 (6th Cir. 2021). The district court concluded that Chevron’s two-step test provides the appropriate standard of review to determine whether injunctive relief is warranted. Id. at 830–31 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984)). First, the district court found that Congress has not directly addressed whether bump stocks are included within the statutory term “machinegun” and that the definitional terms, “automatically” and “single function of the trigger,” are ambiguous. Id. at 831. Second, the district court determined that the Final Rule’s interpretations of “automatically” and “single function of the trigger” are permissible and its classification of bump stocks as machineguns is reasonable. Id. at 831–32. Concluding that Gun Owners failed to demonstrate a likelihood of success on the merits, the district court denied the motion for a preliminary injunction.3 Id. at 832–33.
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,
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.
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. 467 U.S. at 843–44 (“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. . . . Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.” (internal quotation marks and citation omitted)). And the Supreme Court has made clear that Chevron deference is not eliminated simply because the rulemaking authority conferred the Attorney General (and ATF, by extension) was not specified with exactitude. Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 56–57 (2011) (establishing that Chevron deference is appropriate when Congress delegated authority to make rules carrying the force of law generally and the agency interpretation was promulgated in the exercise of that authority, and stating “[o]ur inquiry in that regard does not turn on whether Congress’s delegation of authority was general or specific”).
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
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
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, 546 U.S. 243, 258–59 (2006). Here, Congress broadly tasked the Attorney General with promulgating “such rules and regulations as are necessary to carry out the provisions” of the Gun Control Act—a purely criminal statute—and to “administ[er] and enforce[]” and “prescribe all needful rules and regulations for the enforcement” of the National Firearms Act—a statute with criminal applications.
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.
515 U.S. at 703–04, 704 n.18 (citation omitted). To be sure, the Babbitt Court also hypothesized that a regulation may “provide such inadequate notice of potential liability so as to offend the rule of lenity,” but this is simply an acknowledgment that a law imposing criminal sanctions—whether it be a statute or a regulation—must provide fair notice of the prohibited conduct. Id. at 704 n.18.
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
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 Chevron’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. Id. They argued that the rule was
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, 321 U.S. 414, 418, 423–25 (1944) (upholding delegation of authority to agency to issue price-limit regulations under Emergency Price Control Act even though violating the regulations carried criminal penalties, and rejecting non-delegation and separation-of-powers challenges by criminal defendants convicted of violating those regulations); United States v. Mistretta, 488 U.S. 361, 371–74, 394–96 (1989) (upholding delegation of authority to Sentencing Commission to define criminal sentencing ranges and rejecting non-delegation and separation-of-powers challenges by criminal defendant).
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.
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. 500 U.S. at 167–68.
In sum, the district court correctly determined that Chevron provides the standard of review by which to assess the Final Rule.
II. Applying Chevron
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.” Chevron, 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.
“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.”
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 Chevron, 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., 529 F.3d 763, 777 (6th Cir. 2008).
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”
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, 958 F.3d at 986 (quoting 4 OXFORD ENGLISH DICTIONARY 602 (1933));11 see also WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 920-21 (1967) (defining “function” as an “action”). Because neither reading is “unambiguously ‘compel[led]’ by the statute, to the exclusion of the other one,” the statute “contains a ‘gap for the agency to fill.’” Guedes, 920 F.3d at 29–30 (quoting Chevron, 467 U.S. at 843, 860)).
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.”
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
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[.]” WEBSTER’S NEW INTERNATIONAL DICTIONARY 187 (2d ed. 1934); see also 1 OXFORD ENGLISH DICTIONARY 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, 920 F.3d at 30 (citation omitted)). And an “automatic” car shifts gears on its own, but only if the driver maintains enough constant pressure on the gas pedal to reach a speed that triggers a gear shift.
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,
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, 920 F.3d at 30–31. Thus, “automatically” is also ambiguous.
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 Chevron.
B. Step Two
When employing the Chevron framework, we do not ask if the agency’s construction is the best reading of the statute. Id. at 843 n.11. The question is whether ATF’s interpretations of “single function of the trigger” and “automatically” are permissible. Mead, 533 U.S. at 229.
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, 312 F. App’x at 198. When the National Firearms Act was enacted in 1934, the president of the National Rifle Association testified in a congressional hearing that any gun capable of firing more than one shot by a single pull of the trigger was a machinegun, and the House Report accompanying the bill that became the National Firearms Act said the same. See H.R. Rep. No. 73-1780, at 2 (1934); Final Rule, 83 Fed. Reg. at 66,518. Thus, ATF’s interpretation of “single function of the trigger” is a permissible construction. Accord Aposhian, 958 F.3d at 988; Guedes, 920 F.3d at 31. Further, ATF’s focus on the single human action upon the trigger is reasonable. The practical effect of the bump-stock device is to turn a semiautomatic firearm into a rapid-fire firearm that only requires the person firing the gun to pull the trigger once.
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,
In sum,
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
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.
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, 312 F. App’x at 200; and “automatically” to refer to a self-acting mechanism set in motion by a single pull of the trigger to discharge multiple rounds, United States v. Olofson, 563 F.3d 652, 658 (7th Cir. 2009). Moreover, as mentioned above, understanding “automatically” and “single function” to refer to, respectively, a self-regulating mechanism and a single human action is consistent with dictionary definitions from the relevant timeframe.
Thus, the best interpretation of
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 Chevron 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.
GIBBONS, Circuit Judge, writing in support of affirming the district court judgment. I agree with Judge White’s assertion that Chevron applies to statutes with criminal penalties and her conclusion of the outcome under Chevron. I write separately, as Judge White ultimately concludes in the alternative, because Chevron 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.”
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, 11 U.S. 32, 34 (1812). Yet the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has sought to ban “bump stocks” in a far different way: through a regulation adopted by a federal agency alone. Bump-Stock-Type Devices,
In 1986, Congress amended the Gun Control Act of 1968 to make it a crime to possess a “machinegun,”
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, 992 F.3d at 454–74. I write to add a few more thoughts on why bump stocks are not “machineguns” under these laws and why we cannot fall back on ”Chevron deference” to save the ATF’s rule. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Many people, I suspect, would not understand why anyone would want to own a bump stock, a device that helps a person shoot semiautomatic rifles at rapid rates approaching those of automatic weapons. But this case has nothing to do with the policy debate over whether Congress should have banned bump stocks after the tragic Las Vegas shooting in 2017. Despite the introduction of multiple bills, Congress opted not to pass such legislation. And while the burdensome legislative process may seem “unworkable” in today’s polarized age, it is a core component of our separation of powers designed to protect the liberty of all Americans—not just bump-stock owners. INS v. Chadha, 462 U.S. 919, 959 (1983). Whether one favors or disfavors a policy banning bump stocks, we should all be concerned with the way in which the federal government has enacted that policy into law.
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
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.
Given these facts, a bump stock does not qualify as 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
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.
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, 559 U.S. 133, 140 (2010); Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 171–72 (2001). And this interpretation matches how an “appropriately informed” user of the English language would distinguish a “machinegun” from an ordinary rifle. See Van Buren v. United States, 141 S. Ct. 1648, 1657 (2021) (citation omitted). A “machine gun” is typically viewed as “an automatic gun[.]” Webster’s Ninth, supra, at 713; Webster’s Second, supra, at 1474. And the difference between an “automatic” and a “semiautomatic” weapon has long turned on a mechanical feature of its trigger. If the gun automatically reloads and refires with one trigger activation, it is a machine gun. If it automatically reloads the next cartridge but requires “another pressure of the trigger for each successive shot,” it is a semiautomatic gun. Webster’s Ninth, supra, at 1069; see also
*
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
The ATF’s sources do not help it. In Staples v. United States, 511 U.S. 600 (1994), the Court distinguished automatic and semiautomatic weapons in a footnote discussing background facts. Id. at 602 n.1. The decision otherwise addressed an issue not relevant here: whether the crime of possessing an unregistered machine gun has a mens rea element. Id. at 604–20. This footnote described an automatic weapon as one that “fires repeatedly with a single pull of the trigger,” noting that “once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted.” Id. at 602 n.1. Yet Staples did not offer a conclusive reading of the “machinegun” definition; it “merely ‘offer[ed] commonsense explanations’” to distinguish the weapons. Olofson, 563 F.3d at 658 (citation omitted). In Olofson, the government itself took this view of Staples. There, the defendant read Staples as if it were a statute. He argued that his rifle shot only three rounds per trigger pull and so was not a machine gun because it did not keep shooting until the trigger was released or the ammunition exhausted. Id. at 658–59. When rejecting this argument, the Seventh Circuit refused to replace the statute with the footnote. Id. at 659. I would do the same.
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
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,
Automatically. The ATF agrees that “automatically” means operating “as the result of a self-acting or self-regulating mechanism[.]”
This view reads the word “automatically” in isolation, not in context. See Johnson, 559 U.S. at 139–40. “Automatically” does not modify the phrase “capture the recoil energy“; it modifies the phrase “shoots” “by a single function of the trigger.” Just because one part of a rifle’s operation is “automatic” does not mean that it automatically shoots by a single function of its trigger. Even semiautomatic rifles have some “automatic” features (hence their name). They use the “force of recoil and mechanical spring action to eject the empty cartridge case after the first shot and load the next cartridge” without human action. Webster’s Ninth, supra, at 1069. But they do not shoot multiple shots “automatically” “by a single function of the trigger” because a shooter must use manual force to reengage the trigger for each shot. The same is true of bump-stock rifles.
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
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, 920 F.3d at 30. Indeed, they
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 Chevron’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 Chevron’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, 521 U.S. 642 (1997); Touby v. United States, 500 U.S. 160 (1991)). Yet the deference that I view as ”Chevron deference” traditionally arises when an agency claims that Congress has impliedly delegated to the agency the power to interpret the law. The use of this express-delegation caselaw in this case’s implied-delegation context sets a hazardous precedent.
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.
A party can challenge these express delegations in various ways. See United States v. Mead Corp., 533 U.S. 218, 227 & n.6 (2001). Most notably, Congress may not give away its legislative power, so these policy-laden regulations raise separation-of-powers concerns. Touby, 500 U.S. at 165. For better or worse, however, the Supreme Court has rebuffed challenges to these rules under the nondelegation doctrine, even when Congress has made it a crime to violate them. See
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 Chevron, 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, 432 U.S. 416, 425 (1977); Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 833 n.2 (2001) (collecting cases). ”Chevron deference” instead comes into play when a statute lacks an express delegation. Chevron held that a statutory ambiguity can represent Congress’s “implicit” delegation to an agency to resolve the ambiguity. 467 U.S. at 844; King v. Burwell, 576 U.S. 473, 485 (2015). And it distinguished laws with these implicit delegations from those that “explicitly left a gap for the agency to fill[.]” 467 U.S. at 843–44 & 844 n.12; see Mead, 533 U.S. at 229.
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
*
If anything, the use of this express-delegation precedent in Chevron’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. Id. at 688; Grimaud, 220 U.S. at 519. This clear-statement rule established a presumption against “which Congress legislates” well before Chevron. Singer v. United States, 323 U.S. 338, 350–51 (1945) (Frankfurter, J., dissenting); Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 499–502 (2002). The statute in O’Hagan, for example, expressly made it a crime to violate “any provision of this chapter” or “any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter[.]”
The clear-statement rule is “not a judicial sport.” Singer, 323 U.S. at 350 (Frankfurter, J., dissenting). It reinforces a fundamental separation-of-powers principle. Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 733 (6th Cir. 2013) (Sutton, J., concurring). The Constitution allows only Congress to create crimes. See United States v. George, 228 U.S. 14, 22 (1913). The Supreme Court cannot create common-law crimes, Hudson, 11 U.S. at 34, and the President
The circuit courts that use the express-delegation precedent to invoke Chevron 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
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, 144 U.S. at 688. But the ATF points to no such provision. That is why the circuit courts must rely on Chevron. Chevron deference applies when Congress “implicitly” delegates to an agency
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.
Further, no other provision gives the Attorney General the power to issue a criminal rule implementing the Gun Control Act’s “machinegun” ban,
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[.]” Id. These senators successfully persuaded Congress to omit this “rules or regulations” catchall from what is today the penalty section in
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,
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). Chevron 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, 569 U.S. 290, 296 (2013).
Yet the Court has not adopted that absolutist view. Rather, before proceeding through Chevron’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, 533 U.S. at 238. The Court thus will reject Chevron deference when a law is best read not to
Two examples prove my point. The Court has rejected Chevron’s implied-delegation presumption for “major questions” about a statute. See King, 576 U.S. at 485–86; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000). “In extraordinary cases” involving important questions, it has noted, “there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Brown & Williamson, 529 U.S. at 159 (citing Breyer, supra, at 370). Take King. It addressed whether the Affordable Care Act allowed individuals who bought health insurance on federal exchanges to obtain tax subsidies. 576 U.S. at 479. The agency issued a regulation answering this question under a grant of rulemaking authority. Id. at 483. Yet the Court refused to give Chevron deference to this regulation. Id. at 485–86. The Court reasoned that the question was of “deep ‘economic and political significance,’” so it presumed that Congress would not have impliedly given the agency the power to resolve it. Id. at 486 (citation omitted).
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, 494 U.S. 638, 649 (1990); see also Smith v. Berryhill, 139 S. Ct. 1765, 1778–79 (2019); Epic, 138 S. Ct. at 1629. Take Adams Fruit. There, the agency issued a regulation under its rulemaking authority that narrowly interpreted a cause of action allowing private parties to sue. 494 U.S. at 649. The Court held that Chevron deference did not apply to this interpretation because “the scope of the judicial power vested by the statute” was for the courts, not the agency, to decide. Id. at 650.
Identical logic extends to the criminal laws, so these decisions make this case easy at Chevron’s threshold step. The Gun Control Act bans “machineguns” and imposes a potential 10-year prison sentence for violations.
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, 992 F.3d at 464; Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 561 (2007). Congress must enact a criminal law, the Attorney General must initiate a prosecution, and a court must adjudicate the case. The clear-statement rule that I have already discussed ensures that the Attorney General does not usurp Congress’s role in this process—to enact criminal bans. George, 228 U.S. at 22. We should likewise adhere to canons of interpretation that ensure that the Attorney General does not usurp the judiciary’s role—to say what the criminal laws mean. Marbury v. Madison, 5 U.S. 137, 177 (1803). Yet Chevron’s presumption that agencies get to construe ambiguous laws would allow the Attorney General to do just that by combining the prosecutorial and adjudicative powers. See Sunstein, supra, at 210.
Admittedly, it is our duty to say what civil laws mean too. But there would be nothing unusual about refusing to extend Chevron’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, 397 U.S. 358, 361–64 (1970), and they cannot force defendants to testify when their testimony might subject them to criminal (as opposed to civil) liability, see United States v. Balsys, 524 U.S. 666, 671–72 (1998). Notably, therefore, the Supreme Court has not incorporated other civil principles that are in tension with the separation of powers into the criminal domain. Although agencies may engage in fact-finding in some civil proceedings subject to deferential judicial review, Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 455 & n.13 (1977), this agency fact-finding power falls away in “criminal matters,” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70 n.24 (1982) (plurality opinion); Nelson, supra, at 610. The same logic should apply here. Chevron sometimes allows agencies to interpret ambiguities in civil statutes subject to deferential judicial review. See City of Arlington, 569 U.S. at 296. Yet an agency’s law-interpreting power should likewise fall away in criminal matters. See Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1030 (6th Cir. 2016) (Sutton, J., concurring in part and dissenting in part), rev’d sub nom. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017).
In addition, Chevron’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, 529 U.S. 848, 858 (2000) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221–22 (1952)). Unlike Chevron, this rule of lenity “is perhaps not much less old than construction itself.” United States v. Wiltberger, 18 U.S. 76, 95 (1820). The rule allows parties to organize their affairs confident that they can rely on the existing law until their elected representatives change it through the legislative process. See Bass, 404 U.S. at 348.
Chevron’s implied-delegation presumption (which dates to 1984) conflicts with this fair-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”
Lastly, imagine what it would mean if, as the D.C. Circuit found, the Attorney General’s general rulemaking authority in
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.
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, 531 U.S. at 172.
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The circuit courts that take the opposite view suggest that Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), supports their conclusion that a grant of general rulemaking authority can trigger Chevron deference for criminal laws. See Aposhian, 958 F.3d at 982–83; Guedes, 920 F.3d at 24. Babbitt addressed provisions of the Endangered Species Act that made it unlawful for a party to “take” an endangered species and imposed criminal and civil penalties for violations of this ban. 515 U.S. at 690–91, 696 n.9 (quoting
Yet Babbitt confirms that Chevron’s implied-delegation presumption does not apply here. While Babbitt cited Chevron in passing, it did not “rest on Chevron’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, 136 S. Ct. at 2148 (Thomas, J., concurring). Rather, Babbitt is better read as an express-delegation case. The Court noted that the Secretary’s regulation was entitled to “some degree of deference” not because the “take” definition was ambiguous (and so subject to Chevron’s presumption), but because of the “latitude” that the Act gave “the Secretary in enforcing the statute[.]” Babbitt, 515 U.S. at 703–04. As its support for this sentence, Babbitt even cited an article by Justice Breyer criticizing an implied-delegation presumption as “seriously overbroad, counterproductive and sometimes senseless.” Breyer, supra, at 373; Sunstein, supra, at 239–40. Notably, moreover, Secretary Babbitt’s enforcement
In this case, by contrast, the Bump-Stock Rule attempts to “rest on Chevron’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 Chevron’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 Chevron’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.,
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 Chevron’s presumption here because the Bump-Stock Rule departed from the ATF’s decade-long 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, 920 F.3d at 20–21. Chevron does not require such judicial obsequiousness to a federal agency.
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. Id.; see, e.g., MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225–29 (1994). If the text conveys no unambiguous answer, the court must proceed to Chevron’s second step by asking whether the agency’s reading reasonably resolves the ambiguity. 467 U.S. at 843; see, e.g., Brand X, 545 U.S. at 989–97. Like the rule of lenity, however, Chevron “leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity.” United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985) (Scalia, J.).
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, 911 F.3d 333, 338 (6th Cir. 2018). When engaging in this ordinary interpretive process, the court should employ the “traditional tools of statutory construction” that it would otherwise rely on when reviewing a statutory provision without agency input. Epic, 138 S. Ct. at 1630 (quoting Chevron, 467 U.S. at 843 n.9); see Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). So a court must give the relevant words their ordinary meaning. See MCI Telecomms., 512 U.S. at 225–28. If a word is susceptible to more than one meaning, the court must place it in its context and consider it within the statutory structure as a whole. See Pereira v. Sessions, 138 S. Ct. 2105, 2113, 2114–15, 2117 (2018); Esquivel-Quintana, 137 S. Ct. at 1570, 1572. Similarly, the court must account for the many canons of construction that routinely offer clues on the meaning of an
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 Chevron.
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 Chevron. Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring); cf. Kisor, 139 S. Ct. at 2415. These courts identify an ambiguity and defer to the ATF based on an “interpretive puzzle” that they identify but do not even attempt to solve. Epic, 138 S. Ct. at 1630. Consider, for example, the reasons why the D.C. Circuit found the phrase “single function of the trigger” ambiguous. Guedes, 920 F.3d at 29–31. The court suggested that this phrase “admits of more than one interpretation” because it could refer to the mechanical actions of the trigger or the human actions of the shooter. Id. at 29. From there, however, the court made little effort to discern which of the two meanings best fits the context using any, much less all, of our traditional tools of interpretation. Id. at 29–31; see Pereira, 138 S. Ct. at 2116–18. The court thus did not ask whether one of the two possible perspectives better comports with the way in which the word “function” is normally used or with the statutory definition as a whole (both of which point to the trigger’s mechanical perspective as the proper reading). See Gun Owners, 992 F.3d at 471; cf. Kisor, 139 S. Ct. at 2415.
A comparison of this “cursory analysis” to recent Supreme Court decisions shows the stark conflict in approaches. Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring); see, e.g., SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1354–58 (2018); Esquivel-Quintana, 137 S. Ct. at 1568–72. In Pereira, for example, the relevant statute’s meaning turned in part on the preposition “under.” See 138 S. Ct. at 2117. Like the D.C. Circuit, the Court readily admitted that this “chameleon”
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, 139 S. Ct. at 2415; see Wiltberger, 18 U.S. at 95. Well before Chevron, for example, the Supreme Court refused to follow a regulatory interpretation of a law with civil and criminal applications because the agency’s reading would have done “violence to the well-established principle that penal statutes are to be construed strictly.” FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954). Within the Chevron framework, moreover, if a canon of construction such as the rule of lenity “resolves a statutory doubt in one direction, an agency may not reasonably resolve it in the opposite direction.” Carter, 736 F.3d at 731 (Sutton, J., concurring). Ambiguity “in this situation is a congressional choice” in favor of a narrow interpretation of the criminal law, “not a delegation to the agency.” Arangure, 911 F.3d at 342. So even assuming that any ambiguity remained in the statutory “machinegun” definition, the rule of lenity would resolve that ambiguity against the Bump-Stock Rule’s broad reading.
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. 515 U.S. at 704 n.18; see Guedes, 920 F.3d at 27. Recall, however, that this Act includes an express delegation of criminal rulemaking authority to the Secretary to implement this prohibition.
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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
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
My colleagues in favor of reversal suggest that Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs stands for the proposition that the rule of lenity must be applied at the outset to determine if the statute is unambiguous. Solid Waste says no such thing. In fact, its only reference to the rule of lenity comes when the Supreme Court expressly declines to consider the argument that the rule of lenity displaces Chevron. See 531 U.S. 159, 174 n.8 (2001). It is true that the Court declined to apply Chevron, but this was because the agency’s interpretation of its own jurisdiction would have potentially extended beyond the outer bounds of Congress’s Commerce Clause authority and created federalism—not fair notice—concerns. Id. at 173–74.