B.L.U.F. Why the Sixth Circuit Court found that the bump stock ban is not constitutional.

This was not a Second Amendment challenge to the rule. Instead, it was an Article I, Section 1 challenge.

The ATF is not a part of the Congress, but is instead a part of the Executive branch. The Executive branch is charged with enforcing laws, not in creating laws.

Given this challenge, Bruen plays no part in the decision except that it indicates that the Supreme Court is serious about Second Amendment protected rights.

The Question

Is the ATF’s interpretation of 18 U.S.C § 922(o)(1) which incorporates 26 U.S.C. § 5845(b) Constitutional?

§ 922 is the Gun Control Act. This is where it says it shall be unlawful for any person to transfer or possess a machinegun. — §922(o)(1). That definition of a machinegun is what is at issue:

Is it a machinegun?

From a purely technical point of view, no, it is not. The definition says a single function of the trigger. The ATF has long considered a Gatling gun to be “not a machinegun”. This is because you have to crank the handle, and it manually causes the firearm to fire.

If you were to create a crank driving cam that interacted with the trigger of a firearm, that might not be a machinegun. If it is hand cranked, then a single action of the trigger causes a single round to fire. If you had some gearing in that cam drive so that a single rotation of the crank caused many rounds to fire, it would still not be a machinegun.

On the other hand, the ATF had ruled that if you were to attach a motor to that crank, then you have moved the “trigger” to the control of that motor and turning on the motor causes more than one round to fire.

A bump stock works by using the recoil of the firearm to push your finger off the trigger. You then put your finger back on the trigger and press it as quickly as you can. Technically, this means that there is only a single round fired by a single action of the trigger.

The court would need a finding of fact on that. Maybe a jury trial would come up with a different answer than what the district judge did, but that is questionable.

Without a finding of fact, it becomes a question of law, which the Circuit court is capable of doing.

Well, is it a machinegun?

The court decided not to answer this question, The weight of authority concludes that the definition of a machinegun is
ambiguous as applied to a bump stock — Hardin v. ATF at 4. Instead, they decided to analyze the case law and came to the right conclusion.

When there is an ambiguity in the law and there is an agency interpreting the law, the court uses the Chevron deference.

Chevron Deference

Chevron was a nasty Supreme Court opinion from 1984. The takeaway from Chevron is …if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. — Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984)

In other words, if there is an ambiguity, then the court should use the agency’s interpretation.

This is why you hear Chevron mentioned so often when challenging government policies. When the EPA, which has long regulated certain levels of DHMO, says that Dihydrogen Monoxide (DHMO) is extremely hazardous with thousands of people losing their lives to this insidious chemical compound, the courts throw up their hands and say “WTF is DHMO?”

Since they don’t know, they will trust the EPA because they have the experts to understand just how dangerous DHMO is and to trust that the rule promulgated by the agency are reasonable.

Even if the plaintiff challenging the EPA says, “Judge, they are attempting to mislead you!” the Court will give Chevron deference to the EPA.

There are limits on when the courts can defer to Chevron. The big one is when there are criminal sanctions involved.

Because the new rule makes felons of people that own bump stocks, an “unregistered machinegun”, the court found that Chevron doesn’t apply

So the court decides if it is or isn’t a machinegun?

Nope.

If it was a question of “is this a machinegun?” then the court could answer that question. The question instead is, “does the ATF have the power to make this rule?”

Interestingly, neither the state nor the plaintiffs, asked for a Chevron deference. Both parties want a strong ruling from the court.

At this point, the court has decided that the law in ambiguous in regard to bump stocks and that the ATF doesn’t just get to rule how they want because they are the government, the court then looks at other legal issues.

The Rule of Lenity

Because the Sixth Circuit court found that there were potential criminal sanctions, they are allowed to use the rule of lenity, even if this was a civil case.

Using case law from the Supreme Court, the sixth district court found that the statute did not “clearly and unambiguously cover the act” — Cargill v. Garland This means that since we don’t know whether the law means that bump stocks are machineguns or not, it can be handled under lenity.

Under the rule of lenity, the defendant (good guy in this case) gets the win. I.e. in a tie, the defendant wins.

Conclusion

This means that in the Sixth Circuit, bump stocks will be “not machineguns” when the district court orders the injunction.

The Circuit court did not issue an injunction against the ATF, they ruled against the ATF, but did not enjoin them. This will be appealed to the Supreme Court. If it is, the District Court will put the case on hold until the Supreme Court either denies certiorari or the case is ruled on by the Supreme Court.