Gun Owners of America, Inc. v. Garland, 032521 FED6, 19-1298

Docket Nº19-1298
Opinion JudgeALICE M. BATCHELDER, Circuit Judge.
Party NameGun Owners of America, Inc.; Gun Owners Foundation; Virginia Citizens Defense League; Matt Watkins; Tim Harmsen; Rachel Malone, Plaintiffs-Appellants, v. Merrick B. Garland, in his official capacity as Attorney General of the United States; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms And Explosives; Regina Lombardo...
AttorneyRobert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Appellants. Brad Hinshelwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte, Michigan, f...
Judge PanelBefore: BATCHELDER, WHITE, and MURPHY, Circuit Judges. WHITE, Circuit Judge, dissenting.
Case DateMarch 25, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (6th Circuit)

Gun Owners of America, Inc.; Gun Owners Foundation; Virginia Citizens Defense League; Matt Watkins; Tim Harmsen; Rachel Malone, Plaintiffs-Appellants,

Gun Owners of California, Inc., Movant,

v.

Merrick B. Garland, in his official capacity as Attorney General of the United States; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms And Explosives; Regina Lombardo, in her official capacity as Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees.

No. 19-1298

United States Court of Appeals, Sixth Circuit

March 25, 2021

Argued: December 11, 2019

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:18-cv-01429-Paul Lewis Maloney, District Judge.

ARGUED:

Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Appellants.

Brad Hinshelwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

ON BRIEF:

Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte, Michigan, for Appellants.

Brad Hinshelwood, Abby C. Wright, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Ilya Shapiro, CATO INSTITUTE, Washington, D.C., James Bardwell, NATIONAL ASSOCIATION FOR GUN RIGHTS, Loveland, Colorado, for Amici Curiae.

Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

The question before us is whether a bump stock may be properly classified as a machine gun as defined by 26 U.S.C. § 5845(b).1 But this case rests as much on who determines the statute's meaning as it does on what the statute means.

On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF" or "Agency") promulgated a rule that classified bump stocks as machine guns, reversing its previous position. See Bump-Stock-Type Devices, 83 Fed. Reg. 66, 514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479) ("Final Rule"). Plaintiffs-Appellants-three gun-rights organizations, two individuals who own bump stocks, and one individual who would purchase a bump stock if not for the Final Rule-filed a motion for a preliminary injunction to prevent the Final Rule from taking effect. After finding that the ATF's interpretation was entitled to Chevron deference, the district court held that the Final Rule's classification of bump stocks as machine guns was "a permissible interpretation" of § 5845(b). Accordingly, the court concluded that Plaintiffs-Appellants were unlikely to succeed on the merits and denied the preliminary injunction.

Because an agency's interpretation of a criminal statute is not entitled to Chevron deference and because the ATF's Final Rule is not the best interpretation of § 5845(b), we REVERSE the district court's judgment and REMAND for proceedings consistent with this opinion.

I. Background

A. Statutory History of the Machine Gun

For as long as there have been firearms, there have been efforts to make them shoot faster. See John Ellis, The Social History of the Machine Gun 9-14 (1986). The modern-day machine gun dates back to the nineteenth century with Richard Gatling's 1861 invention of the hand-cranked Gatling gun and Hiram Maxim's 1884 invention of the fully automatic Maxim gun. At first, these technological advances changed only the nature of warfare. But their impact soon reached the civilian world with the submachine gun becoming the weapon of choice of organized crime during the Prohibition Era. See David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 589-90 (1987).

Seeking to crack down on the criminal use of concealable, high-powered firearms, Congress passed the National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended in I.R.C. ch. 53). See S. Rep. No. 73-1444, at 1-2 (1934) ("The gangster as a law violator must be deprived of his most dangerous weapon, the machine gun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machine guns is sufficient at this time."). "Representing the first major federal attempt to regulate firearms," that 1934 Act levied a then-steep $200 tax (estimated at over $3, 800 in today's dollars) on the purchase of a machine gun. Lomont v. O'Neill, 285 F.3d 9, 11-12 (D.C. Cir. 2002); Ch. 757, 48 Stat. at 1237; see also National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways and Means, 73d Cong. 22-24 (1934) (Attorney General Homer Cummings explaining to the House Ways and Means Committee that the tax provision would permit the federal government to successfully prosecute gangsters with tax evasion, as it had done with Al Capone). That 1934 Act defined "machine gun": The term "machine gun" means any weapon which shoots, or is designed to shoot, automatically or semiautomatically, more than one shot, without manual reloading, by a single function of the trigger.

Ch. 757, 48 Stat. at 1236.

Thirty years later, in response to several high-profile assassinations, including those of President John F. Kennedy, Senator Robert F. Kennedy, and Dr. Martin Luther King, Jr., Congress passed the Gun Control Act of 1968, which, among other restrictions, prohibited felons, drug users, and the mentally ill from purchasing firearms. Pub. L. No. 90-618, 82 Stat. 1213 (amending 18 U.S.C. §§ 921-28 and I.R.C. ch. 53). The 1968 Act's definition of a machine gun largely adopted the 1934 Act's definition but also expanded its scope to include other parts or devices that could convert a weapon into a machine gun: The term "machinegun" means 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. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

§ 5845(b), 82 Stat. at 1231.

Finally, in 1986, Congress passed the Firearm Owners' Protection Act, which banned civilian ownership of machine guns manufactured after May 1986, as well as any parts used to convert an otherwise legal semiautomatic firearm into an illegal machine gun. Pub. L. No. 99-308, 100 Stat. 449 (1986) (amending 18 U.S.C. §§ 921-29). The 1986 Act amended only the second part of § 5845(b): Section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)) is amended by striking out "any combination of parts designed and intended for use in converting a weapon into a machinegun," and inserting in lieu thereof "any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun."

§ 109(a), 100 Stat. at 460.

Thus, as currently codified, the statutory definition of a machine gun reads: The term "machinegun" means 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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b) (2019).

While Congress has enacted other legislation during the past 30 years, both expanding and reducing gun-control measures, no law has amended the definition of a machine gun since 1986.

B. Regulatory History of the Bump Stock

Though there are different versions, all bump stocks are devices designed to assist the shooter in "bump firing," a technique that increases a semiautomatic firearm's rate of fire. The bump stock replaces the standard stock of a semiautomatic rifle, i.e., the end of the rifle that rests against the shooter's shoulder. In contrast to the standard stock, which is stationary, the bump stock is a sliding stock that enables the firearm to move backwards and forwards in a "constrained linear"-i.e., straight-fashion. Final Rule, 83 Fed. Reg. at 66, 518. To initiate bump firing, the shooter pulls the trigger once, firing one shot, while maintaining "constant forward pressure with the non-trigger hand on the barrel-shroud or fore-grip of the rifle." Id. at 66, 516. At the same time, the shooter also maintains constant rearward pressure with his trigger hand, while keeping his trigger finger stationary. The recoil energy from the fired shot causes the firearm to slide backward approximately 1.5 inches. Id. at 66, 518. The forward pressure applied by the shooter's non-trigger hand, along with the recoil energy channeled by the bump stock, causes the firearm to then slide forward. As the firearm slides forward, the trigger "bumps" against the shooter's stationary trigger finger, causing the trigger to depress and the firearm to shoot again. This second fired shot creates recoil energy once again, which again causes the bump-stock-attached firearm to slide back. The trigger is released and reset, and the process repeats.

This cycle will continue until the shooter moves his or her trigger finger, fails to maintain constant forward pressure with the non-trigger hand, the firearm malfunctions, or the firearm runs out of ammunition. As with any semiautomatic weapon, the trigger must be completely depressed, released, and then reset before it is capable of firing another shot....

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