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Bump Stock Ban Litigation Developments

By on March 12, 2021 Categories:

In the last few weeks, we have had two new decisions in the litigation surrounding the ATF’s 2019 ban on bump stocks – a Feb. 23 decision granting the ATF’s summary judgment motions in the Guedes case in the D.C. district court, and a March 5 order by the Tenth Circuit in the Aposhian case vacating its prior grant of en banc review (as improvidently granted) and reinstating the panel decision in the case. One striking feature of the bump stock litigation is the absence of references to the Second Amendment – neither decision (including four dissenting opinions in Aposhian) mention the Second Amendment even once.

Instead, these two cases have focused exclusively on thorny administrative law issues. The bump stock cases highlight the deep divides in the federal judiciary about the current status of Chevron deference and some unsettled questions of law about whether Chevron applies when statutes can carry criminal penalties, whether the government can waive Chevron deference in litigation, and the relationship between Chevron (which defers to the government’s interpretation of ambiguous statutes) and the rule of lenity (which construes statutory ambiguity in favor of criminal defendants, and generally against the government).  Other administrative law issues in these cases are the Vacancies Reform Act (whether the official who promulgated the regulation was legally in that office), “hard look” review, regulatory reversals, the nondelegation doctrine, and federal-state powers and preemption.

The D.C. court’s decision is a win for the government and the future of the regulation, but it mostly reiterates points from its earlier decision, and the Circuit Court’s affirmance, on the plaintiff’s motion for a preliminary injunction. These points are mostly about whether Chevron deference applies even if the agency purportedly waived such deference at one point in the litigation, whether Chevron should apply to statutes carrying criminal penalties, and even if Chevron applies, whether the rule survives either prong of Chevron analysis.   This motion was the subject of the cert petition that the Supreme Court rejected a year ago, with a “statement” from Justice Gorsuch. Gorsuch’s quasi-concurrence breezed through the Chevron points: 1) whether the government can, and did, waive Chevron in this case; 2) whether Chevron applies when imprisonment is at stake for regulatory violations; and 3) whether Chevron should apply when an agency has reversed its policy on a matter, as it did regarding bump stocks. (As an aside, the agency acknowledged and explained the policy reversal in its proposed rule, and this is the first time the agency has undertaken notice-and-comment rulemaking about bump stocks). Gorusch agreed with the majority, however, that granting cert was premature at the preliminary injunction stage, and that a Final Ruling in the case would be a more appropriate occasion to take up these issues.

The D.C. district court’s analysis appears unchanged, though one major issue from the earlier decisions is missing from the new opinion – the Appointments Clause challenge to the rule, which took up more than a third of the D.C. Circuit’s opinion in 2019. This challenge had focused on legal irregularities in the appointment of Acting Attorney General Whitaker, who signed the bump stock Final Rule, though William Barr quickly ratified the rule after his procedurally proper appointment and confirmation as Attorney General. The trial court and the D.C. Circuit held that this ratification cured any possible problem in this regard, and also thought the problem was a non-issue anyway. This component of the litigation has fallen by the wayside, either because the Presidential election made it moot, or the plaintiffs abandoned the argument.

The Tenth Circuit’s Aposhian order is more surprising. A panel decision in May 2020 denied the plaintiff’s motion for a preliminary injunction (similar to the Guedes case) to enjoin enforcement of the ban. In September 2020, the Circuit granted en banc review and requested additional briefing from the parties.  After holding oral arguments, a majority of the en banc panel (6-5) voted that the rehearing was improvidently granted and issued an order to vacate the en banc hearing and reinstate the May 2020 decision, which was favorable for the ATF. Four judges wrote dissenting opinions, and all five dissenters joined each dissenting opinion.

All four opinions focus on the applicability of Chevron deference to the ATF for the bump stock ban, and the opinions overlap considerably.  They also overlap with the dissent in the D.C. Circuit’s Guedes decision in 2019, and Justice Gorsuch’s “statement” last year.  There are three main Chevron points here. First, the dissenters maintain that the underlying statute (the NFA) is unambiguous in two key phrases operative here: “single function of the trigger” and “automatically” – which would mean the agency loses at Chevron step one. Not only is the NFA clear in these terms, but it clearly does not include bump stocks, so the agency receives no deference and has adopted a plainly erroneous interpretation.

Second, the ATF/DOJ has itself taken the position that Chevron does not apply – they have attempted to waive Chevron deference – arguing instead that the statute itself clearly prohibits bump stocks (in other words, they agree with the dissenters that the statute is clear but think it clearly says the opposite of what the dissenters think).  There is a split of authority about whether courts can, or must, apply Chevron deference when the government has waived it. This case is different from previous Chevron waiver cases, however, in that the ATF expressly invoked Chevron deference in the rule that it published in the Federal Register, then took a contradictory position in litigation, confusingly. (Note there is another doctrine in administrative law, unrelated to Chevron, that prohibits agencies from advancing arguments for the first time in litigation when they’re defending a regulation – agencies are normally held to what they said at the time they promulgated the rule).

The third main Chevron issue concerns its applicability to regulations, like the bump stock ban, which carry potential criminal penalties – again, there are arguably contradictory precedents on this point even from the Supreme Court, and it remains an unsettled question in the lower courts.  Some of the dissents in the new Aposhian order want a categorical rule – Chevron never applies to regulations that impose criminal penalties (a way of narrowing Chevron to civil-penalty regulations).  An alternative approach, argued in some of the dissents, is that the rule of lenity, which construes statutory ambiguity in favor of defendants, is mutually exclusive with the idea of deferring to the government’s interpretation of an ambiguous criminal law.  The problems with applying the rule of lenity here are 1) this is not a criminal prosecution, but rather a preemptive challenge to a regulation’s legality, where the rule of lenity normally would not apply, and 2) if the basis for applying the rule of lenity is that the citizenry lacks notice about what the law prohibits, that doesn’t apply here, where the government’s interpretation has been promulgated in advance through notice-and-comment rulemaking, and applies going forward, not retroactively.  This point has significant implications for future gun regulations by the ATF or other agencies, such as the contemplated ban on “ghost guns” or “80 percent” self-assembly kits.

It is worth noting that one of the dissenting opinions (Judge Hartz) advocates a novel theory of Chevron deference that would mark a significant contraction or rollback of the doctrine.  Hartz (joined by the other four dissenters) claims that Chevron should apply only where Congress states expressly in a statute that an agency has authority to set policy on a specific question (not the case with the NFA), or where the statute required specialized technical expertise to interpret technical or scientific knowledge that most judges lack. The ATF’s published rationale for fitting bump stocks under the prohibitions in the NFA was intelligible to judges, the argument goes, so judges should have been interpreting this statute, not the agency.

Background: Bump stocks are attachments (replacement stocks) for semiautomatic rifles that harness the recoil from firing the gun to discharge more rounds for as long as the shooter depresses the trigger.  Using a bump stock simulates, or approximates, the effect of a fully automatic machine gun.  That, in fact, is the point of the new regulation – ATF decided that bump stocks are, at least functionally, an attachment for converting a legal semiautomatic rifle (e.g., an AR-15) into an illegal machinegun.  The National Firearms Act of 1934 bans converter attachments to turn other firearms into machineguns. The regulation was expressly a response to the 2017 mass shooting in Las Vegas, in which the shooter used bump-stock-equipped rifles to send a 15-minute fusillade of bullets into a crowd of concert attendees on the ground below.

Litigation related to the bump stock ban arose on three fronts: the challenges to the regulation itself, some takings claims by manufacturers and owners, and wrongful death actions against the manufacturers by the families of the Las Vegas victims.  The main takings case was covered on this blog here, though there have been some other unsuccessful takings claims as well.  As far as I can tell, there is still one “live” takings claim – a class action by bump stock owners – pending in federal district court in Dallas, and the judge has signaled hostility to the ATF’s regulation (the opinion decries the notion that the federal government has any “police powers” under the Constitution, though other courts around the country have relied on this very power in rejected challenges to the regulation). The two tort actions are still pending, as far as I can tell, and have survived an initial round of motions to dismiss under the PLCAA and, ironically, the bump stock ban (the promulgation of the ban highlights that the bump stocks were completely legal at the time of the massacre).

There were two other noteworthy decisions on other fronts of the bump stock litigation last November (in federal courts in Texas and Kentucky) that involved challenges to the rule itself, as in Guedes and Aposhian. These were clear-cut wins for the ATF and the rule.