In a break with other circuits, on March 25 the Sixth Circuit issued a decision in Gun Owners of America v. Garland, holding that the ATF’s 2019 ban on bump stocks is invalid. Previously, the DC Circuit and the Tenth Circuit have upheld the ban (more precisely, have rejected preliminary injunctions with opinions that effectively reject the challenges to the ban), and the Supreme Court denied a cert petition in the DC case. (I discussed the latest decisions in these cases, for this blog here – including a quick explainer about bump stocks, the ATF ban, and the flurry of litigation that ensued to challenge it).
The Sixth Circuit reached the opposite result, also on a preliminary injunction appeal, thereby creating a circuit split on the bump stock ban’s validity and making it more likely that the Supreme Court will have to take the case(s). Of course, if Congress enacts a statutory ban in the meantime, which is possible, the cases could be moot, as these are preemptive challenges to the rule, not defenses against prosecutions for violations.
As with the other circuit court opinions about the bump stock ban, the new Sixth Circuit opinion does not even mention the Second Amendment – the entire opinion is about Chevron deference for ATF’s newly-adopted interpretation of the National Firearms Act, and the majority’s contrary reading of the same statute. The majority, in fact, claims it is not creating a circuit split, because there was already a circuit split on the Chevron issues (the Chevron issues here are the same addressed by the DC Circuit and the Tenth Circuit in their opinions on the bump stock ban, and the majority’s arguments echo the dissenting opinions in the other circuit cases). A dissenting opinion by Judge White mostly restates, albeit more clearly, the arguments of the majority opinions in the other circuits.
The Sixth Circuit’s decision focuses on fewer issues than those of the other circuits, distilling the entire matter down to whether Chevron deference applies to regulations that may carry criminal penalties for violations. As I explained in my previous post about the other bump stock cases, there is a split of authority on this question, even from the Supreme Court, and the most important long-term effect of the bump stock litigation would be if the Supreme Court decided to settle this question, which could have far-reaching implications for all other federal firearm regulations promulgated by ATF or other agencies. The Sixth Circuit majority claims to be bound by circuit precedent to answer this question in the negative but acknowledges that the other circuits that reached a contrary result were following a different line of precedent in their circuits (note that Judge White’s dissent asserts the majority is mischaracterizing their own circuit precedent, citing cases that seem to go the other way). Once the majority concludes that Chevron does not apply, it undertakes its own de novo construction of the National Firearms Act and concludes that the most plausible reading of the statute would not include bump stock-equipped rifles in the definition of “machine gun.”
The opinions by the majority and the dissent lay out rather nicely the standard arguments for and against applying Chevron to agency interpretations of criminal statutes, citing precedent and explaining the policy concerns (Rule of Lenity, etc.). The practical impact of a no-Chevron rule would be significant: all ATF regulations interpret criminal statutes to some extent, sometimes on mundane licensing matters for gun dealers, and sometimes with more controversial rulings, like classifying bump stocks as machine guns, or rules for what counts as a “user of a controlled substance” for purposes of enforcing the firearm prohibitor in 18 U.S.C. § 922(g)(3). If none of these interpretive regulations receive any deference from courts, many substantive federal gun regulations (as opposed to statutes) could be found to have no legal effect, but will merely serve as general announcements of agency enforcement policies or priorities. Unless a court independently came to the same conclusion as the agency about the meaning of the statute, which seems unlikely in cases of statutory silence and gap-filling by an agency, violations of the rules would not constitute a crime. Except in cases where the Supreme Court adopts a specific interpretation of the statute, there would be no uniformity between circuits about which weapons and accessories are legal and which are contraband. Circuit splits (and splits among courts within circuits) about the meaning of various terms in the National Firearms Act or the Gun Control Act, in turn, would create problems with weapons and firearm accessories (such as sound suppressors or stabilizing braces for short-barrel guns) transported across state lines into another circuit.
Though not discussed in the opinions, I suspect that migrations in the ATF’s location on the federal agency org chart are contributing to the current confusion in the courts about whether it should receive Chevron deference. The NFA originated mostly as a tax-and-registration scheme for machine guns (the tax was exorbitant in 1934 dollars) and silencers, enforced by the Treasury Department, so interpretations the statute originally would have come in the familiar form of IRS Treasury Regulations, as with other taxation statutes. ATF originally was a subdivision of the Treasury Department (the Alcohol Unit, enforcing alcohol taxes), and received statutory authority to enforce federal gun laws in 1941 (see ATF historical timeline here); a series of enactments and statutory amendments gradually transferred more responsibilities to ATF, such as gun tracing. The 2002 Homeland Security Act transferred ATF from the Treasury Department to the Department of Justice, its current home. Chevron deference did not apply to tax interpretations until 2011, when the Supreme Court decided (in Mayo Foundation v. United States) that Chevron should apply uniformly to all federal agencies, including the IRS. This may be one of the reasons that the Chevron issue did not come up regarding early ATF regulations. There were also far fewer preemptive challenges to ATF rules by gun-rights groups during this period as well – the challenges to ATF rules usually arose arise as defenses to criminal prosecutions. Now that ATF is situated within the DOJ, it is easier to frame its regulations as DOJ rules, which are easier to case as “criminal.” Historically, the DOJ did not receive Chevron deference for its favored interpretations of criminal statutes. On the other hand, other statutes that potentially impose criminal sanctions have been at issue in cases where agencies received Chevron deference, though these were not cases where the non-government party was defending against criminal charges. As Judge White’s dissent points out, even the original Chevron case involved an air pollution statute that carried both civil and criminal penalties.