The New Civil Liberties Alliance has successfully challenged a federal agency’s ban on bump stocks, which enable guns to fire more rapidly. The Bureau of Alcohol, Tobacco, and Firearms banned bump stocks as a way of effectuating Congress’s ban on machine guns. But Congress didn’t ban bump stocks, only machine guns. A federal appeals court has ruled that the agency can’t ban bump stocks using the statute banning machine guns — and that deference to administrative agencies.
Here is an except from the decision yesterday by the full Fifth Circuit Court of Appeals, in Cargill v. Garland:
Since the National Firearms Act of 1934, federal law has heavily regulated machineguns. Indeed, as proposed, that law was known to many as “the Anti-Machine Gun Bill.” The possession or transfer of a machinegun was eventually banned through the Gun Control Act of 1968 and the Firearms Owners’ Protection Act of 1986 [with some guns grandfathered in -EV]. Today, possession of a machinegun is a federal crime, carrying a penalty of up to ten years’ incarceration.
This appeal concerns a regulation promulgated by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, purporting to interpret the federal prohibition on machineguns as extending to bump stocks. A bump stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.
But ATF reversed its longstanding position in 2018, subjecting anyone who possessed a bump stock to criminal liability. ATF reversed its position to a great extent in response to the tragic events that occurred in Las Vegas on October 1, 2017. On that day, a deranged gunman murdered dozens of innocent men and women, and injured hundreds more. To carry out this appalling crime, the gunman used many weapons and utilized many accessories—including bump stocks.
Public pressure to ban bump stocks was tremendous. Multiple bills to that effect were introduced in both houses of Congress. But before they could be considered in earnest, ATF published the regulation at issue here, short-circuiting the legislative process. Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation at issue. He now challenges the legality of that regulation, arguing that a bump stock does not fall within the definition of “machinegun” as set forth in federal law, and thus that ATF lacked the authority to issue a regulation purporting to define the term as such.
Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” set forth in the Gun Control Act and National Firearms Act.
But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability. A rich legal tradition supports the “well known rule” that “penal laws are to be construed strictly.” As Chief Justice Marshall explained long ago, the rule “is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”
The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.
{Of the sixteen members of our court, thirteen of us agree that an act of Congress is required to prohibit bump stocks, and that we therefore must reverse. Twelve members (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reverse on lenity grounds. Eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reverse on the ground that federal law unambiguously fails to cover non-mechanical bump stocks.}
At least half the judges agreed that even if the statute were the statute ambiguous, the agency’s position should not receive the deference agencies often receive in interpreting an ambiguous statute, because the agency had not relied upon statutory ambiguity as a rationale for its broad interpretation, which was the predicate for giving agencies deference in a Supreme Court decision known as Chevron. Seven additional judges further concluded that ATF should not receive deference from the courts as to its interpretation, because the statute imposes criminal penalties (which they believe trigger the “rule of lenity” in favor of criminal defendants), and also because the ATF reversed its prior interpretation of the statute in banning bump stocks. As the court’s majority explained:
First, Chevron does not apply for the simple reason that the Government does not ask us to apply it. Indeed, the Government affirmatively argued in the district court that Chevron deference is unwarranted. As other jurists have recognized in this context, that means that the Chevron argument has been waived—not merely forfeited. . . .
That would seem to be the end of the inquiry, but we recognize that one of our sister circuits has held that Chevron cannot be waived….To be sure, we have never held in a published case that Chevron must be raised by the Government in order to apply. . . . But the conclusion is obvious, and flows from well-settled waiver principles. After all, that a court should defer to the Government’s expressed interpretation is just a legal argument, and a party waives a legal argument if it fails to raise the argument when presented with the opportunity. . . .
If ordinary waiver principles were not enough, we note also that it would contradict Chevron‘s central justification to defer to the Government’s interpretation without its urging us to do so. The justification is that ‘”policy choices’ should be left to executive branch officials ‘directly accountable to the people.”‘ Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (quoting Epic Systems v. Lewis, 138 S. Ct. 1612, 1630 (2018) and Chevron, 467 U.S. at 865)). Here, the Government made a clear policy choice by declining to seek Chevron deference. The very interest underlying Chevron demands that we respect the Government’s choice and interpret the statute according to traditional principles of statutory interpretation. . . .
This ruling is consistent with the position of the federal appeals court that hears the most challenges to agency interpretations, the D.C. Circuit Court of Appeals. For Chevron to apply, the agency must conclude that the statute is ambiguous and deliberately exercise the choice to interpret the statute in a particular way. If the agency has not done so, it cannot rely upon Chevron deference, according to the Fifth and D.C. Circuits.
The court gave additional reasons to reject applying so-called Chevron deference.
The Chevron framework does not apply for a second, independent reason: the statute which the Final Rule interprets imposes criminal penalties. As noted above, the primary reason for Chevron is that it allows the executive branch to make policy decisions through the accrued expertise of administrative agencies. But in exchange, Chevron deference shifts the responsibility for lawmaking from the Congress to the Executive, at least in part. That tradeoff cannot be justified for criminal statutes, in which the public’s entitlement to clarity in the law is at its highest. . . .
Finally, we note a third reason why Chevron deference does not apply in these circumstances: that ATF has adopted an interpretive position that is inconsistent with its prior position. To apply Chevron here would contravene one of the rule’s central purposes: “to promote fair notice to those subject to criminal laws.” . . .
If we were required to defer to the Government’s position, the Government could change the scope of criminal liability at any time. Indeed, that is exactly what it has done here. Until 2017, the ATF had never classified non-mechanical bump stocks as machineguns. But now the interpretation is reversed, and the Government would criminalize behavior that it long recognized was lawful. . . .
The concern respecting the consistency of agency regulations is nothing new. Indeed, the Supreme Court has long recognized that an agency interpretation that “conflicts with the agency’s earlierinterpretation is entitled to considerably less deference than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (internal quotations omitted); . . . The concern is only magnified where, as here, the Government’s interpretation of the underlying statute carries implications for criminal liability. As such, Chevron does not apply because the Government has construed the same statute in two, inconsistent ways at different points in time.
This opinion creates a circuit-split on the validity of the ATF’s regulation, as well as on when to apply Chevron deference, so the Supreme Court might agree to hear the case, if the government files a petition seeking Supreme Court review.
Three judges appointed by Democratic presidents dissented (Judges Higginson, Dennis and Graves), largely for the reasons given in the panel opinion, but also as to the rule of lenity argument:
The Supreme Court has repeatedly instructed that “the rule of lenity only applies, if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the [c]ourt must simply guess as to what Congress intended.” Under this standard, the Supreme Court has been clear that we do not invoke lenity just because “multiple, divergent principles of statutory construction” are available, “the statute’s text, taken alone, permits a narrower construction,” or “a law merely contains some ambiguity or is difficult to decipher.” Rather, the Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations.
Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity. In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law….
Congratulations to Richard Samp, Harriet Hageman, and Mark Chenoweth of the New Civil Liberties Alliance, who represent plaintiff.
