As I mentioned earlier this week, the en banc Sixth Circuit failed to reach consensus on the legality of the Trump Administration’s ban on bump stock devices, which convert semi-automatic firearms into weapons that can approximate the rate of fire of an automatic firearm. (If you’re unfamiliar with the operation of bump stocks, I’ve found this YouTube video illustrating one helpful.) In Gun Owners of America v. Garland, the full court of appeals split evenly, 8-8, on the regulation’s validity and therefore the lower court decision upholding the law was affirmed.
Key to the case, as administrative law scholar Jonathan Adler explained, are questions that often bedevil courts in the context of agency regulations: whether the regulation properly interprets the statutory provision it relies on and whether and when to defer to the agency’s views on the best interpretation. Here, the regulation re-interprets what qualifies as a machinegun under federal law, now including bump stocks in that definition. Because that federal law carries criminal penalties, some judges have argued that that Chevron deference–the deference courts generally afford an agency interpreting an ambiguous federal statute–does not apply at all.
The Supreme Court was schedule to consider another case addressing the bump stock issue–this one from the Tenth Circuit–at its conference this Friday. Now, there is simply a notation on the docket saying “rescheduled.” With the GOA case coming down this week, it may put more pressure on the Court to resolve the issue once and for all.