The U.S. Court of Appeals for the Tenth Circuit gave bump stocks new life last week when they ruled to vacate a previous decision that upheld a ban on the devices.
A 2-1 panel of the same court had previously upheld the Bureau of Alcohol, Tobacco, and Firearms’ (ATF) decision to classify bump stocks as “machine guns.” But now, after a majority of non-recused active judges voted in favor, the Denver-based court has agreed to rehear the case en banc before the full 12-judge panel.
The petition to rehear the case was filed by Utah gun rights advocate W. Clark Aposhian, backed by the nonprofit New Civil Liberties Alliance (NCLA). The NCLA called the previous decision from the Tenth Circuit “troubling” and argued that Chevron deference does not give a federal agency a blank check to interpret federal law however they see fit. Chevron deference is a legal concept that allows a court to defer to an agency’s interpretation of an ambiguous statute.
“The full Tenth Circuit has recognized the troubling consequences of the panel’s prior decision,” said Caleb Kruckenberg, Litigation Counsel, NCLA. “Chevron deference cannot guarantee a win for an agency even when the parties agree it doesn’t apply, because it contradicts the constitutional rule that criminal laws should be construed against the government. We look forward to the Court setting a major precedent limiting Chevron’s unconstitutional reach.”
This decision from the Tenth Circuit could give new life to other bump stock cases in other federal jurisdictions. Stephen Stamboulieh, who argued a similar case before the U.S. Court of Appeals for the District of Columbia, told GunsAmerica via email that he has informed the D.C. Court of the Tenth Circuit’s decision.
“A good ruling out of the Tenth Circuit would be very helpful to the bumpstock cases nationwide, for sure,” he said.
Stamboulieh called the Tenth Circuit’s decision a “good thing” because he doesn’t believe the court would take the case en banc just to uphold the panel’s ruling. He can’t say for sure why they decided to take the case, but he suspects they wanted a chance to rule on the ever-important Chevron issue.
Bump stock cases in the Tenth Circuit and in other federal jurisdictions hinge on whether the ATF can interpret (and reinterpret) a federal statue that appears to be ambiguous. Between 2008 and 2017, the ATF issued several letters determining that bump stocks were not classified as machine guns. Then, following the Las Vegas massacre, the ATF changed their minds and outlawed the devices.
In a similar case in the U.S. Court of Appeals for the District of Columbia, Judge Dabney Friedrich ruled that Supreme Court precedent and the ambiguity of the federal definition of “machine gun” allow the ATF to change their previous determinations.
The 1934 National Firearms Act defines “machine guns” 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.
Friedrich argued that the ATF can reasonably reinterpret “machine gun” to include “bump stocks” because “a single function of the trigger” is ambiguous enough that it can be understood to mean “a single pull of the trigger and analogous motions.”
“Automatically” is equally ambiguous, according to Friedrich, so the ATF can “reasonably interpret” this term to describe bump stocks. The devices, she says, “relieve a shooter of enough of the otherwise necessary manual inputs to warrant the ‘automatic’ label.”
The Tenth Circuit’s decision to rehear the case does not change the categorization of bump stocks. They will remain illegal to own until Congress changes the statue, the ATF changes its interpretation, or federal courts rule that the ATF exceeded its authority.