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Litigation News | 2023

No Chevron Deference in Deciding Scope of “Machinegun Parts”

Kelso Lorne St. Jacques Anderson

No Chevron Deference in Deciding Scope of “Machinegun Parts” karahan

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A federal appellate court applying the rule of lenity has held that bump stocks are not “machinegun parts” under the National Firearms Act (NFA). In so concluding, the court reasoned that ambiguity exists in the NFA’s definition of “machinegun parts” but refused to apply ensconced, administrative legal principles—the so-called Chevron deference—to resolve the interpretive dispute. ABA Litigation Section leaders are divided as to whether Chevron deference applies, but all leaders agree that if the U.S. Supreme Court were to hear such a case, it likely would pare back Chevron deference principles.

Statutory and Case Schema

The Gun Control Act (GCA) prohibits the “possession or transfer of a machinegun” by any person and incorporates by reference the NFA, which defines “machinegun,” in relevant part, as “any weapon which shoots . . . automatically more than one shot . . . by a single function of the trigger.” Amplifying this definition, the NFA subsumes, in its own definition of machinegun, “the frame or receiver of any such weapon” and “any part . . . or combination of parts . . . designed or intended . . . for use in converting a weapon into a machinegun.” Congress has long delegated the power to administer the NFA and GCA to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

Following the 2018 massacre in Las Vegas, in which a gunman used a bump stock attached to semiautomatic weapons to kill 59 and injure over 500 people, the ATF required owners or possessors of bump stocks to abandon or destroy their bump stocks. If not abandoned within the required time frame, such owners or possessors would be in possession of an illicit “machinegun part,” contrary to the NFA and GCA.

In Hardin v. ATF, the plaintiff owned several bump stocks and brought a lawsuit in the U.S. District Court for the Western District of Kentucky alleging that the ATF exceeded its statutory authority by requiring bump stock owners to destroy or abandon those parts. The district court ruled in favor of the ATF. The plaintiff appealed that judgment in the U.S. Court of Appeals for the Sixth Circuit.

Rule of Lenity Trumps Chevron Deference

The Sixth Circuit reversed and remanded the district court’s opinion. It began its analysis by noting that the question of whether a bump stock is a “machinegun part” prohibited by the NFA depends on the interpretation of the words “automatically” and “single function of the trigger” in the statute. Observing that federal appellate courts are divided on the issue, the court cited Aposhian v. Barr and Guedes v. ATF from the Tenth and D.C. Circuits, respectively, as cases embracing the position that bump stocks are machinegun parts, and Cargill v. Garland from the Fifth Circuit, which takes the contrary view. The court also cited its own en banc decision in Gun Owners of America, Inc. v. Garland, in which the Sixth Circuit’s 16 judges were split equally on the issue.

Next, the court concluded that, because—as evidenced by the parties’ positions in the litigation—the NFA is subject to two or more considered viewpoints, it is ambiguous. Quoting Chevron, USA, Inc. v. NRDC—the 1984 seminal precedent setting forth how courts should interpret an ambiguous statute administered or enforced by a federal agency—the court stated it would typically afford Chevron deference to the ATF’s interpretation of the NFA so long as such interpretation was not “arbitrary, capricious, or manifestly contrary to the statute.”

Citing Supreme Court precedents, however, the court concluded that, because the NFA has criminal sanctions if violated and the Supreme Court “has not clearly defined the bounds of Chevron deference,” caution should be exercised before deferring to the ATF’s interpretation of the NFA. Significantly, said the Hardin court, deferring to the expertise of an administrative agency is the central reason to apply Chevron deference to an administrative agency’s interpretation of a statute. And because the ATF does not have unique expertise on interpreting what is a “machinegun” under the NFA, Chevron deference was not proper here.

The prior framework established, the court cited Supreme Court precedents for its position that the rule of lenity—which says that ambiguous criminal statutes should be interpreted in favor of a defendant or against the state—is applicable here, because Chevron deference was not required and a criminal statute is at issue. Relying heavily on Judge Ho’s concurrence in Cargill, the court concluded that, because the NFA does not “clearly and unambiguously prohibit bump stocks,” the rule of lenity dictates that the NFA must be read as excluding bump stocks from the definition of “machinegun parts.”

“Any Objective Reading” Favors Court’s Conclusion

In a separate concurrence, Judge Bush hewed to specific language in the NFA to conclude that a bump stock is not a machinegun part, ostensibly under any objective reading of the NFA. Quoting the ATF’s brief that described how a bump stock operates, Judge Bush gainsaid the ATF’s position by noting that a bump stock does not allow a semiautomatic weapon to shoot “automatically,” therefore not transforming it into a “machinegun part.” Next, rejecting the ATF’s view that “pull” may substitute for “function” in the NFA’s “single function of the trigger” language, Judge Bush observed that a rifle with a bump stock engages the firing mechanism to shoot only one shot and is contrary to the definition of a machinegun, which “automatically [shoots] more than one shot.”

Litigation Section leaders are divided as to whether the Hardin court should have applied Chevron or another statutory hermeneutic to determine whether a bump stock is a “machinegun part” under the NFA. “None of the courts of appeal should have addressed Chevron deference or lenity. Indeed, none of the parties in Hardin asked the court to address administrative deference or lenity,” argues Steven F. Finell, Santa Rosa, CA, chair of the Appellate Rules & Statutes Subcommittee of the Section’s Appellate Practice Committee. Under the plain meaning of the word, Finell notes, a bump stock is a “machinegun part” under the NFA, as incorporated by reference in the GCA, and the ATF correctly concluded as much. “Hardin’s criticism of the ATF’s rulemaking tries to make a sow’s ear out of a silk purse,” he analogizes.

Other Section leaders are concerned about the criminal aspects of the ATF’s treatment of bump stocks. “Applying the Chevron doctrine in criminal cases would potentially violate the ‘fair notice’ of what conduct is criminal under the Due Process Clause of the Fifth Amendment,” opines James R. Wyrsch, Kansas City, MO, cochair of the Practice Pointers Subcommittee of the Section’s White Collar & Criminal Litigation Committee.

And other Section leaders think that Chevron deference and the rule of lenity were both inapplicable to the facts in Hardin. “The doctrine of lenity is an odd choice for how to resolve the question of whether this [Chevron] rule is within the authority delegated by Congress to the ATF to administer the NFA and/or the GCA,” concludes Nash E. Long, Charlotte, NC, former cochair of the Section’s Trial Practice Committee. “Resolving that question requires an exploration of what Congress intended, not whether an individual defendant in a criminal prosecution had reasonable notice of what conduct was prohibited and what the potential punishment might be,” Long emphasizes.

Supreme Court Ruling Likely?

Notwithstanding the different opinions of Section leaders on the issue of whether Hardin, or other appellate courts, used the appropriate standard to consider the interpretive issue of whether a bump stock is a “machinegun part” under the NFA, there is a consensus that if the Supreme Court were to hear the issue, it would likely enervate Chevron. “The recent renaissance in Second Amendment jurisprudence could be a factor in a decision by the Supreme Court” to hear the dispute, surmises Finell.

In fact, Chevron deference might be overruled by the high court in a case already before it— Loper Bright Enterprises et al. v. Raimondo. “Given the views expressed by Justice Gorsuch and Justice Thomas questioning the constitutionality and wisdom of Chevron, some paring back of Chevron’s application is likely, if not its outright reversal,” predicts Long.