A three judge panel of the Fifth Circuit upheld the federal bump stock ban yesterday. In a post last Wednesday, I noted how the Sixth Circuit en banc had split evenly on the legality of the bump stock ban, leaving in place the trial court’s decision upholding the regulation. The question doesn’t appear to be going away, with several circuits having weighed in during en banc sittings. And, as we’ve highlighted on the blog, there’s currently a cert petition on the topic pending with the Supreme Court.
The Fifth Circuit’s opinion sidesteps some of the harder questions the case posed in other circuits. For example, one question raised in other contexts is whether an agency is entitled to Chevron deference when a statute carries a criminal penalty. Another is whether an agency may waive any entitlement to Chevron deference during the litigation. But those questions arise when a court considers a statute to be ambiguous and therefore affords (or not) the agency charged with implementing the statute some deference as it construes the statute. Here, the panel found that DOJ’s bump stock ban constituted the best reading of the statute, making any question of deference unnecessary.
It’s not clear whether the challengers will seek en banc review in the Fifth Circuit or head straight to the Supreme Court, but it’s clear that if the Court wants to tackle this issue, it has a lot of cases to choose from. Here’s how the Fifth Circuit (helpfully) described the active litigation:
Three other circuits have also rejected challenges to the Bump Stock Rule. In April 2019, the D.C. Circuit denied a motion for a preliminary injunction against the Rule, concluding that the statutory definition of “machinegun” is ambiguous and that the Rule is entitled to Chevron deference. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam).
One judge dissented, arguing that the Rule contradicts the statute’s plain language. Id. at 35 (Henderson, J., dissenting). The Supreme Court denied certiorari, 140 S. Ct. 789 (2020), though Justice Gorsuch issued a statement arguing that the Rule is not entitled to Chevron deference. Id. at 789-91 (Gorsuch, J., statement regarding denial of certiorari).
In May 2020, the Tenth Circuit denied another motion to preliminarily enjoin the Rule, for similar reasons as the D.C. Circuit. Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020). Four months later, the Tenth Circuit vacated that opinion and granted a rehearing en banc, 973 F.3d 1151 (10th Cir. 2020) (en banc), but it subsequently reversed course, vacating the order granting rehearing en banc and reinstating the original panel opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021) (en banc).
Five judges dissented from the decision to vacate the en banc order. Id. at 891 (Tymkovich, C.J. dissenting, joined by Hartz, Holmes, Eid, and Carson, JJ.). The plaintiff in that case has filed a petition for certiorari in the Supreme Court. Petition for Writ of Certiorari, Aposhian v. Garland, No. 21-159 (U.S. Aug. 4, 2021).
Finally, in March 2021, a Sixth Circuit panel granted a preliminary injunction against the Rule, holding that the Rule is not entitled to Chevron deference and is not the best interpretation of the NFA. Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 450 (6th Cir. 2021).
However, the Sixth Circuit vacated that decision, 2 F.4th 576 (6th Cir. 2021) (en banc), and an evenly divided en banc court affirmed the district court’s judgment upholding the Rule. No. 19-1298, — F.4th —-, 2021 WL 5755300 (6th Cir. Dec. 3, 2021) (en banc); see Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 826 (W.D. Mich. 2019).