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Machine Gun Law, ATF Rule at Center of Suits Over Bump Stock Ban

Sept. 2, 2021, 10:08 PM

The federal government properly banned bump stocks under a statute regulating machine guns because the accessories convert a semi-automatic weapon into an automatic one, three gun-control advocacy groups say in a brief to the full Sixth Circuit.

Further, the Bureau of Alcohol, Tobacco, Firearms and Explosives is entitled to routine court deference to its reading of the statute, the Giffords Law Center to Prevent Gun Violence, Brady United Against Gun Violence, and Everytown for Gun Safety contend. That’s even though the law carries criminal penalties, as many statutes do, they say in their friend of the court brief, filed Wednesday.

The case is before the en banc U.S. Court of Appeals for the Sixth Circuit, which vacated a three-judge panel’s ruling that the government can’t regulate bump stocks using the federal machine-gun law.

Justices May Weigh Similar Case

Meanwhile, a bump stock proponent who lost an appeal in the Tenth Circuit has petitioned the U.S. Supreme Court for review of his case. Recent friend of the court briefs in that case, Aposhian v. Garland, support the bump stock owner in his attack on the same ATF regulation at issue here.

In the Sixth Circuit case, the three groups opposed to gun violence are writing separately from the government to “provide additional technical explanation” about the workings of bump stocks, they say.

“In the plain language of the statute, bump stocks allow a ‘single function of the trigger’ to initiate ‘automatically’ ‘more than one shot,’” converting a semi-automatic weapon to an automatic one, they say.

“When Congress banned machineguns, it crafted a broad definition whose ordinary meaning captures efforts to circumvent the ban, including mechanisms that convert semi-automatic weapons into automatic weapons,” they say.

Agency or Courts: Who Decides?

They also say they want to rebut an “invitation for courts to replace ATF as the country’s principal regulators of guns simply because many laws designed to combat gun violence may have criminal implications.”

A rejection of deference to agencies under Chevron, U.S.A., Inc. v. NRDC “would sweep in drug laws, financial regulations, and environmental regulations—and would invalidate Chevron itself,” they say.

Amici urging the Supreme Court to take up W. Clark Aposhian’s challenge to the ban made arguments going the opposite way. The key phrase “single function of the trigger” originally referred to the firearm itself but has been reinterpreted by the ATF to be understood from the perspective of the shooter, say David Codrea, Scott Heuman, and Owen Monroe, who are plaintiffs in another bump stock case now on appeal.

And agency deference has no place, they say. “The definition of a machinegun is a matter of criminal law,” to be construed by courts rather than the government, they say.

Rule of Lenity, Chevron Cited

The Due Process Institute, which describes itself as a “nonprofit, bipartisan, public interest organization” working for “procedural fairness in the criminal justice system,” also supports the certiorari petition in the Aposhian case. The so-called rule of lenity, favoring less harsh interpretations of ambiguous criminal statutes, controls the case here, it says in a brief filed Wednesday. Bump stock proponents, including the Codrea group, have also advanced this argument.

Between the rule of lenity and Chevron deference, the law isn’t settled about “the proper interpretive approach to an ambiguous statute with both criminal and civil applications,” the Due Process Institute says. But the rule of lenity should prevail, it says.

Everytown for Gun Safety advocates for universal background checks and other gun control measures. Bloomberg Law is operated by entities controlled by Michael Bloomberg, who serves as a member of Everytown for Gun Safety’s advisory board.

O’Melveny & Myers LLP represents the gun-control groups.

Stamboulieh Law PLLC and Alan Alexander Beck, who practices in San Diego, Calif., submitted the brief for the Codrea amici. John D. Cline, who practices in San Francisco, represents the Due Process Institute.

The cases are Gun Owners of Am., Inc. v. Garland, 6th Cir., No. 19-01298, amicus brief 9/1/21, and Aposhian v. Garland, U.S., No. 21-159, amicus brief 9/1/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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