Bump Stocks Case Re-Heard En Banc, Chevron Deference Major Point

In addition to evaluating the ability of an agency to institute policy, decision could have lasting impact on Chevron

gun and bump stock
Bump stocks are a device that can change a firearm from semiautomatic to fully automatic when applied. Whether or not a government agency can declare these legal or illegal is the center of a rehearing by the 10th Circuit. / BUREAU OF ALCOHOL TOBACCO, FIREARMS AND EXPLOSIVES

The 10th Circuit Court of Appeals on Sept. 4 agreed to grant an en banc review of a previous panel decision banning bump stocks, a firearm accessory at the center of a debate about governmental authority.

But, in addition to the rehearing, the court has stipulated that a certain step of the Chevron deference must be addressed by both parties in the case.

Chevron deference comes from a landmark 1984 case Chevron v. Natural Resources Defense Council, in which the Supreme Court set a legal test as to when a court should defer to a government agency’s answer or interpretation of legislation.

 “The 10th Circuit doesn’t grant rehearing en banc a lot, and I think that this is a strong indication from the court that these are really fundamental questions about Chevron deference,” said Caleb Kruckenberg, litigation counsel with National Civil Liberties Alliance. The nonprofit legal organization is representing the appellant, W. Clark Aposhian, in the case.

The decision of the panel “created a deep split among the circuits” when Aposhian’s appeal was denied 2-1 in May, according to the release. However, the release states that the decision “ broke ranks with prior decisions of the Tenth Circuit itself and with the U.S. Supreme Court.”

The NCLA believes that Chevron shouldn’t be applied to “defer to an agency’s statutory interpretation” when the government waives reliance on it. Further, in contrast to the decision of the panel, “three other circuits have held that Chevron deference is not a standard of review but is instead just one tool for statutory interpretation — and is thus subject to waiver.”

The appeal argued the panel majority “committed two main legal errors.” A May NCLA press release claims the court erred in applying the Chevron doctrine, a judicial doctrine that allows courts to defer to agency interpretations of ambiguous statutes. The court applied Chevron in this instance, invoking ATF expertise, however, the ATF “specifically waived that argument.”

If a court determines that Chevron applies to an instance, the framework consists of two steps. The first requires the court to determine whether Congress has directly addressed the precise question. The court only moves forward if a statute is silent or ambiguous with respect to the issue.

The second step requires consideration of whether the agency’s construction of the statute is “permissible.” If Congress delegated authority to an agency to fill in the gaps of a statute, courts will give weight to reasonable agency interpretation of a statutory ambiguity.”

Aposhian was “the last man in America” to legally own a bump stock, according to the May news release. He is challenging the ATF ban on such stocks as “an unlawful effort to amend a statute via regulation.” The NCLA alleges that the panel incorrectly applied the Chevron doctrine, which it says violates due process considerations of notice and opportunity to be heard.

The court’s May 7 judgment was vacated and reopened — however, despite the matter being reheard en banc, the order states that the parties must specifically address questions from supplemental memo briefs.

The specifically addressed pieces include: whether the Supreme Court intended for the Chevron framework to operate as a standard of review, or as a tool; if Chevron step-two  depends upon one or both parties invoking it in order for the court to apply it; whether step-two is applicable when the government interprets a statute imposing both civil and criminal penalties; can a party concede the irreparability of harm, and if yes, must the court honor that stipulation and finally if the bump stock policy determination made by the ATF dependent on facts within the congressionally vested expertise of the agency?

As cited by the 10th Circuit in its June opinion, “ATF explained that although Congress defined ‘machinegun’ in the NFA, ‘it did not further define the components of that definition . . . Congress thus implicitly left it to the [Attorney General] to define ‘automatically’ and ‘single function of the trigger’ in the event those terms are ambiguous.’”

In May, Judge Joel Carson wrote a dissenting opinion stating that by turning a blind eye and Chevron being applied “the majority placed an uninvited thumb on the scale in
favor of the government.”


The case arose from issues relating to bump stocks, a piece of equipment that allows shooters of semiautomatic guns “to initiate a continuous firing cycle with a single pull of the trigger,” according to the ATF website. The attachments became a national debate following the 2017 mass shooting in Las Vegas, where a gunman used a rifle equipped with a bump stock to kill 58 people and injure over 400.

Aposhian purchased a bump stock prior to the final rule issued in 2018 that classified bump stocks as machine guns. Aposhian challenged that rule in federal court, saying the rule conflicted with an earlier rule that stated certain bump stocks were not machine guns.

Kruckenberg said the ATF had previously held that bump stocks were legal, but with the final rule, they were made illegal. 

Aposhian’s initial challenge was rejected and the rejection was upheld by the 10th Circuit, when it found that Aposhian failed to establish a likelihood of success on the merits.

The National Firearms Act provides definitions for what constitutes a machinegun and charges the U.S. attorney general with enforcement of the act, according to the 10th Circuit’s June opinion on the case. In addition, the Gun Control Act of 1968 imposes criminal prohibitions and a regulatory licensing scheme to certain firearm transactions and delegates rulemaking authority to the AG. The AG has delegated enforcement of the NFA to the ATF.

“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,” said Mark Chenoweth, the NCLA’s executive director and general counsel.

In terms of Chevron, Kruckenberg said he feels the right way to look at it is that it presumes that an agency has some level of expertise
and therefore the court’s look to their expertise.

“But I think if an agency is saying we’re not invoking our expertise and don’t defer to us — then that rationale goes away. There’s no reason for a court to defer when they’re not asking for it,” Kruckenberg said, adding he hoped that they could convince “that this is completely inappropriate.” 

— Avery Martinez                                   

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