Justice Gorsuch on Bump Stock Ban Denial of Cert in GUEDES v. BATFE

U.S. Supreme Court Image NRA-ILA
U.S. Supreme Court Image NRA-ILA

U.S.A.-(Ammoland.com)- In 2019, in response to a single criminal act, faced with intense media pressure, resulting in political pressure, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, (BATFE) moved to ban bump stocks. They did so, claiming bump stocks were machine guns, contrary to numerous findings they had made over the last several decades.

The new regulation was challenged in the courts. The first case to be appealed to the Supreme Court was filed in the District of Columbia. On 2 March, 2020, the Supreme Court denied a writ of certiorari, the legal term to say they declined to hear the case. The Supreme Court declines to hear most cases. Very often, justices do not comment when writs of certiorari are denied.

The doctrine the United States Court of Appeals for the District of Columbia used to uphold the regulation is called the Chevron doctrine. It essentially says bureaucracies may interpret vague laws to make specific regulations.

Justice Gorsuch, the first justice appointed by President Trump, felt compelled to write a brief statement explaining why the Supreme Court did not grant certiorari. Here is his statement in its entirety. From supremcourt.gov:


Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn’t think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the “possession [of] a machinegun.” 26 U. S. C. §5685(b), 18 U. S. C. §924(a)(2). Whether bump stocks can be fairly re-classified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks. But at least one thing should be clear: Contrary to the court of appeals’s decision in this case, Chevron U. S. A. Inc. v. Natural Re-sources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us.

Judge Neil Gorsuch
Judge Neil Gorsuch

In the first place, the government expressly waived reliance on Chevron. The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute “turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than up-held.” 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concur-ring in part and dissenting in part) (noting concession). Yet, despite this concession, the court proceeded to uphold the agency’s new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usually do in statutory interpretation disputes: supply its best in-dependent judgment about what the law means. But, in-stead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government.

That was mistaken. This Court has often declined to apply Chevron deference when the government fails to invoke it. See Eskridge & Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 Geo. L. J. 1083, 1121– 1124 (2008) (collecting cases); Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 982–984 (1992) (same); see BNSF R. Co. v. Loos, 586 U. S. ___ (2019). Even when Chevron deference is sought, this Court has found it inappropriate where “the Executive seems of two minds” about the result it prefers. Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 20). Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,’” Epic Systems, 584 U. S., at ___ (slip op., at 20) (quoting Chevron, 467 U. S., at 865), then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.

To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, “[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.’” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 5) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)). Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A “reason-able” prosecutor’s say-so is cold comfort in comparison.That’s why this Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U. S. 359, 369 (2014). Instead, we have emphasized, courts bear an “obligation” to determine independently what the law allows and forbids. Abramski v. United States, 573 U. S. 169, 191 (2014); see also 920 F. 3d, at 39–40 (opinion of Henderson, J.); Esquivel-Quintana v. Lynch, 810 F. 3d 1019, 1027–1032 (CA6 2016) (Sutton, J., concurring in part and dissenting in part). That obligation went unfulfilled here.

Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review.The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

Waiting should not be mistaken for a lack of concern.

That seems to be the main thrust of Justice Gorsuch’s message. In the last paragraph, he agrees with his colleagues that this stage of the proceedings is not the appropriate time for them to take the case. His indication that other courts are considering the same question indicates the issue is far from decided.

It is interesting the executive branch did not claim the Chevron doctrine to justify the bump stock ban, and the DC appeals court insisted on applying it to the case. Did the U.S. executive branch set the case up to fail?

Second Amendment supporters have been waiting for the courts to uphold Second Amendment rights for decades. They were happy to see some movement with the Heller decision, and then, in 2010, the McDonald decision. A decade passed with the Second Amendment being relegated to second class status by numerous appeals courts.

Justice Gorsuch’s message indicates he understands some of the frustration many Second Amendment supporters feel about the lack of the Supreme Court’s willingness to uphold the rule of law.

It is a positive sign.

About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Desert Ranger

I wonder if he would be so patient to “wait” if it was his property that was seized and destroyed without compensation under penalty of 10 years in prison.

Ansel Hazen

^^^ That right there. ^^^

Ed in North Texas

The problem is the case appeared before the SCOTUS as an “interim appeal” while the case is still underway in the District Court. The SCOTUS has no record on which to review the legal facts and no final decision on the case from the District Court Judge/Jury. His property has been seized, but I doubt ATFE is destroying evidence before the case has completed the course through all levels of the Court system. Then again they have been damned fools (and damned dangerous ones too) before.

Deplorable Bill

“The right of the people to keep and bear arms shall not be infringed.” We, every free American citizen, are the militia. That infers the use of military grade weapons. Maybe it is so simple that I am not understanding it or maybe it’s so simple that the socialists understand it all too well. They know they have to get rid of it to enslave a nation. Bump stocks should not even be on the plate for socialist dinner. As as I read the 2A, we have the right and the obligation to be armed to defend our nation from… Read more »


Typical BLAH BLAH BLAH from the court. Laws should be simple and easy to understand. Is there any victim from owning a bump stock? NO? Well then there can be no crime and owning one is a right under the 2nd amendment. Are they useful? Not from what Jerry Miculek shows on Youtube. (https://www.youtube.com/watch?v=grgfKJT4Z48) Might just as well use your belt loop or a rubber band. Are they machine guns? Obviously not if you go by the definition in the law for a machine gun. THOUSANDS of folks bought them with the express understanding they were “legal” according to the… Read more »


@CL – Haven’t see the referenced video, but I’ve see plenty of JM videos. The man is an f*ing machine gun with a revolver. Have to agree with a commenter on most recent video I saw of him trying out a tavor (223 flavor) for first time … they said “full auto might just slow his rate of fire!” Most of us cannot shoot like that. Know I certainly cannot…. don’t think I could empty a mag that fast without aiming. Meanwhile he doesn’t just fire extremely rapidly – but with accuracy at least rivaling best I can do at… Read more »


I have been in several competitions with Jerry Michulek. Back in the 1990s.
He said a 1911 was too slow as he could fire a revolver faster than the 1911 could cycle. When he would come to the line, a person was assigned to each target as he is so fast you can’t tell if he actually hit the target.
When I knew him, he was a quiet person. Now that he got married and is on TV, Jerry is a chatter box.


The progressive era brought us situational jurisprudence. The law is whatever we say it is and means whatever we say it means dependent upon current ideological needs. And that is where we are as a nation. All law. All the time. Situational. Ideological.


The underlying problem, of course, is that the NFA itself is unconstitutional and needs to be repealed. The bump stock issue is completely secondary.


Let the NFA remain. Just make all requests for FF licenses free of charge as it is unconstitutional to charge fees to exercise your rights under the Bill of Rights. Imagine paying a fee to have a jury trial or for speaking or to remain silent. How about a fee to vote? Oh wait, the courts have already ruled that fees or taxes cannot be charged for the right to vote. End the fees and you end many of the roadblocks.


BATFE now opines, contrary to their multiple past determinations, that bump stocks convert firearms into illegal machine guns. Now, does that change legal status? Well maybe effectively, but not technically. Does BATFE’s official stance carry weight in court? Likely. Could you fight that in your defense by pointing out how they have flip flopped due to political pressure? Doesn’t seem unreasonable at all. The agency has said they will prosecute possessors, and depending on what might happen in court, a possessor might be found guilty. Gorsuch points out that this turns a person’s decisions and defense thereof into a guessing… Read more »


I honed in on the Justice’s first sentence in his last paragraph, whereby he agreed with his colleagues that the “interlocutory petition” lacked merit for review, Notice he did not say the merits of the case; to the contrary, he alludes throughout his writing that the citizenry is getting screwed here, and with no kiss as a result of the flip flop of an alphabet agency interpretation, which even the DOJ does not support! Point being here – lawyers representing the various Gun Right Groups repeatedly step on their dicks in their filings, spending the hard earned money of the… Read more »


“I need my guns to protect from government tyranny”. How many hundreds of times have I seen that comment on these pages? As long as the American People sit quietly as the United States becomes a communist craphole, nothing will change. It will, indeed, get much worse. The American People are the ultimate POWER and AUTHORITY in the United States. Governments exist because the PEOPLE created the governments and lent their authority to the governments. Governments exist because Americans allow them to exist. Unfortunately, cowardice and inaction have allowed the governments, city, state & federal to become tyrants injurious to… Read more »

Green Mtn. Boy

Seeing as Constitutionally all gun control laws violate the second amendment, it’s a given that it is un Constitutional,PERIOD.


@Green Mtn. Boy Agreed. On the Supreme court though, I think at this point only Alito, Gorsuch, and Thomas would actually side with the Constitution in an actual case (Although I am still unsure on Gorsuch in the long run..) Considering though that more and more people, even on the right, are willing to set aside the constitution simply because they want to force their ideas through… I’m starting to lose hope that it can be restored. A large number of those who profess to support the Constitution only want to do so when it supports what they want. I’m… Read more »


Just because a weapon is a “machine gun” doesn’t make it anti anti-Constitutional. That interpretation came out of the roaring twenties to see its execution in 1934 by President Franklin Delano Roosevelt to stop gangs from having more firepower than LE, and to even the odds at a gunfight. This was the first major infraction of defying the Constitution. At the same time the NFA (National Firearms Act) imposed a tax on the selling, and transporting of those firearms listed in the law, to include short-barrel shotguns and rifles, machine guns, firearm mufflers, and silencers. Due to Constitutional flaws, the… Read more »


Thank you, that explains alot. I do wish we had the resources to fight the fees charges for concealed weapons permits, gun licenses, FFL and so on. There is no other right under the Bill of Rights where fess are charged to those exercising those rights. In fact, in the past, voter taxes were ruled unconstitutional. Everyone who ever paid these fees should be reimbursed.


NY SAFE Act . . . . . . . . . . . . . Second Amendment DEAD 6 years and counting.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STILL WAITING . . . . . . . . . . . . . . . . . .