U.S.A. –-(AmmoLand.com)- Lead Attorney for Gun Owners of America, Robert Olson, argued in GOA v. Garland that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped its authority when it ruled that bump stocks are machine guns.
Mr. Olson appeared before the full bench to argue that the ATF could not use Chevron deference to change the definition of what constitutes a machine gun. Chevron deference comes from Chevron, U.S.A. v. Natural Res. Def. Council (1984), and is the policy that allows a government agency to interpret an ambiguous rule.
GOA won an earlier decision in front of the Sixth Circuit Court three-judge panel that bump stocks are not machine guns. Two of the three judges ruled that bump stocks are not machine guns and overturned the decision at the district court level. The government requested an en banc hearing before the full bench of the Sixth Circuit, and the court granted the hearing.
An en banc hearing means the full Sixth Circuit bench would hear the case and rule on its merits. Essentially the federal government would get a “do-over.”
Chevron deference has only been used in administrative rule interpretation. GOA argues that the ATF used Chevron deference for ruling that bump stocks are machine guns. That would mean the agency used Chevron deference in a criminal statute. No one has ever been arrested due to an agency applying Chevron deference to criminal law. In an expansion of the ATF’s rulemaking powers, now they believe Chevron deference can be applied in criminal statutes.
The lawyer for the Justice Department, Brad Hinshelwood, first stated that the ATF never used Chevron deference to change the agency’s interpretation of a machine gun. Hinshelwood said that the government misread the definition of a machine gun. Subsequently, the government decided that bump stocks are machine guns. After decades of reading the definition of a machine gun one way, the ATF decided on December 26th, 2018 to expand that definition to fit bump stocks. The government lawyer said if the courts wanted to apply Chevron deference, then it could.
One of the judges asked if the government lawyer agreed that a bump stock only fires one round with a single function of the trigger. The lawyer for the government said it was a “movement of whatever you call a trigger.” The lawyer refused to acknowledge specifically what is the trigger on a firearm. The lawyer for the government suggested that a trigger could be whatever the ATF says it is on a gun.
The government lawyer argued that a bump stock could be easily restored to a machine gun. One judge asked the government lawyer if that interpretation could mean the ATF could ban all AR-15s. The counsel for the government refused to answer the question. He said he would get back to the bench.
Another judge points out that a rubber band can do the same thing as a bump stock. The government lawyer seemed flustered from the serious grilling by the judges. The lawyer did not seem to understand firearms, and the judges appeared to know more about guns than Mr. Hinshelwood.
The DOJ’s legal team did take a beating and, at times, seemed unprepared. Gun owners must have a good feeling after the hearing today, but court decisions are one of the hardest things in life to predict.
No matter the decision, both sides are expected to appeal to the United States Supreme Court. Should GOA win this case before the Sixth Court, it almost forces SCOTUS to take the case as there would be a split in the Circuit Courts.
If you want to read more about this case, click here.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.