Petition for Writ of Certiorari — Gun Owners of America, Inc., et al., Petitioners v. Merrick B. Garland, Attorney General, et al.

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion on Rehearing En Banc, United States

Court of Appeals for the Sixth Circuit, Gun

Owners of America v. Garland (Dec. 3, 2021) . 1a

Appendix B

Opinion, United States Court of Appeals for

the Sixth Circuit, Gun Owners of America v.

Garland (Mar. 25, 2011) . . . . . . . . . . . . . . . . . 76a

Appendix C

Opinion, United States District Court for

the Western District of Michigan (Mar. 21,

2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173a

Appendix D

Statutory Provisions Involved

A. 18 U.S.C. § 922(o) . . . . . . . . . . . . . . . . . . 194a

B. 26 U.S.C. § 5845(b) . . . . . . . . . . . . . . . . . 194a

Appendix E

Regulatory Provisions Involved

A. 27 C.F.R. § 447.11 . . . . . . . . . . . . . . . . . . 195a

B. 27 C.F.R. § 478.11 . . . . . . . . . . . . . . . . . . 196a

C. 27 C.F.R. § 479.11 . . . . . . . . . . . . . . . . . . 197a

APPENDIX A

U.S. COURT OF APPEALS FOR THE

SIXTH CIRCUIT

GUN OWNERS OF AMERICA, INC.; GUN

OWNERS FOUNDATION; VIRGINIA CITIZENS

DEFENSE LEAGUE; MATT WATKINS; TIM

HARMSEN; RACHEL MALONE,

Plaintiffs-Appellants,

GUN OWNERS OF CALIFORNIA, INC.,

Movant,

v.

MERRICK B. GARLAND, in his official capacity as

Attorney General of the United States; UNITED

STATES DEPARTMENT OF JUSTICE; BUREAU

OF ALCOHOL, TOBACCO, FIREARMS AND

EXPLOSIVES; REGINA LOMBARDO, in her official

capacity as Acting Director, Bureau of Alcohol,

Tobacco, Firearms, and Explosives,

Defendants-Appellees.

No. 19-1298

December 3, 2021, Opinion Filed

On Petition for Rehearing En Banc.

United States District Court for the Western District

of Michigan at Grand Rapids;

No. 1:18-cv-01429—Paul Lewis Maloney, District

Judge.

1a

2a

Argued: October 20, 2021

Decided and Filed: December 3, 2021

SUTTON, Chief Judge; BATCHELDER, MOORE,

COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE,

WHITE, STRANCH, DONALD, THAPAR, BUSH,

LARSEN, NALBANDIAN and MURPHY, Circuit

Judges.1

________________

COUNSEL

ARGUED: Robert J. Olson, WILLIAM J. OLSON,

P.C., Vienna, Virginia, for Appellants. Mark B. Stern,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees. ON BRIEF: Robert

J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia,

Kerry L. Morgan, PENTIUK, COUVREUR &

KOBILJAK, P.C., Wyandotte, Michigan, for

Appellants. Mark B. Stern, Abby C. Wright, Brad

Hinshelwood, Kyle T. Edwards, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellees. Alan Alexander Beck, San Diego,

California, Stephen D. Stamboulieh, STAMBOULIEH

LAW, PLLC, Olive Branch, Mississippi, Michael T.

Jean, Hadan W. Hatch, NATIONAL RIFLE

ASSOCIATION OF AMERICA, Fairfax, Virginia, John

I. Harris III, SCHULMAN, LEROY & BENNETT PC,

1

Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc

Court, Judge Batchelder, a senior judge of the court who sat on

the original panel in this case, participated in this decision. Judge

Readler recused himself from participation in this decision.

3a

Nashville, Tennessee, Sebastian D. Torres,

BISGAARD & SMITH LLP, Cincinnati, Ohio, Ilya

Shapiro, CATO INSTITUTE, Washington, D.C.,

Richard A. Samp, NEW CIVIL LIBERTIES

ALLIANCE, Washington, D.C., David M. S. Dewhirst,

OFFICE OF THE MONTANA ATTORNEY

GENERAL, Helena, Montana, Joseph G. S. Greenlee,

FIREARMS POLICY COALITION, Sacramento,

California, Ian Simmons, O’MELVENY & MYERS

LLP, Washington, D.C., John Cutonilli, Garrett Park,

Maryland, pro se, for Amici Curiae.

The En Banc Court of the Sixth Circuit Court of

Appeals delivered an order. WHITE, J. (pp. 3–20), in

which MOORE, COLE, CLAY, and STRANCH, JJ.,

joined, and GIBBONS, J. (pg. 21), in which MOORE,

COLE, WHITE, and STRANCH, JJ., joined, delivered

separate opinions in support of affirming the district

court’s judgment. MURPHY, J. (pp. 22–47), delivered

a separate dissenting opinion, in which SUTTON, C.J.,

BATCHELDER, KETHLEDGE, THAPAR, BUSH,

LARSEN, and NALBANDIAN, JJ., joined.

_________________

ORDER

_________________

Pursuant to Rule 35 of the Federal Rules of

Appellate Procedure and Sixth Circuit Rule 35, a

majority of the active judges of this court voted to

grant en banc review of this case. By published order

of the court, entered on June 25, 2021, rehearing en

banc was granted and the previous opinion was

vacated. Following argument heard by the court en

4a

banc on October 20, 2021 and a conference among the

judges, the court divided evenly, with eight judges

voting to affirm the judgment of the district court and

eight judges voting to reverse. Consequently, the

judgment of the district court is AFFIRMED. See

School Dist., Pontiac v. Secretary, U.S. Dep’t. Educ.,

584 F.3d 253 (6th Cir. 2009), Goodwin v. Ghee, 330

F.3d 446 (6th Cir. 2003), and Stupak-Thrall v. United

States, 89 F.3d 1269 (6th Cir. 1996). Separate opinions

in favor of affirmance and in favor of reversal follow.

_________________________________________________

OPINION IN SUPPORT OF AFFIRMING THE

DISTRICT COURT’S JUDGMENT

_________________________________________________

WHITE, Circuit Judge, writing in support of

affirming the district court judgment. Congress

defined the term, “machinegun,” to mean “any weapon

which shoots, is designed to shoot, or can be readily

restored to shoot, automatically more than one shot,

without manual reloading, by a single function of the

trigger.” 26 U.S.C. § 5845(b). “Machinegun” also

includes “the frame or receiver of any such weapon” as

well as “any part designed and intended solely and

exclusively, or combination of parts designed and

intended, for use in converting a weapon into a

machinegun, and any combination of parts from which

a machinegun can be assembled if such parts are in

the possession or under the control of a person.” Id.

And Congress tasked the Attorney General with

administering and enforcing Chapter 53 of Title 26 of

the National Firearms Act, in which the definition of

5a

“machinegun” appears, and delegated rulemaking

authority to the Attorney General to further this end.

26 U.S.C. §§ 7801(a)(2)(A), 7805(a). Congress also

authorized the Attorney General to prescribe “rules

and regulations as are necessary to carry out the

provisions” of Chapter 44 of Title 18 of the Gun

Control Act. 18 U.S.C. § 926(a). The Gun Control Act

makes it unlawful to transfer or possess a

“machinegun” as defined in § 5845(b). 18 U.S.C.

§§ 921(a)(23), 922(o).

The Attorney General has directed the Director of

the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) to administer, enforce, and exercise

the functions and powers of the Attorney General with

respect to Chapter 44 of Title 18 and Chapter 53 of

Title 26. 28 C.F.R. § 0.130(a). On December 26, 2018,

ATF published a rule clarifying that bump-stock-type

devices fall within the definition of “machinegun” as

defined in the National Firearms Act and the Gun

6a

Control Act.2 Bump-Stock-Type Devices (Final Rule),

83 Fed. Reg. 66,514, 66,543.3

2

The district court succinctly described bump-stock-type devices:

The stock of a rifle is the portion of the weapon behind the

trigger and firing mechanism and extends rearward

towards the shooter. The forward part of the stock just

behind the trigger provides a grip for the shooting hand.

The rear end of the stock rests against the shooter’s

shoulder. A bump stock replaces the standard stock on a

rifle. Bump stocks include an extension ledge or finger rest

on which the shooter places his or her trigger finger where

it is stabilized. The shooter then exerts a constant forward

pressure on the barrel of the rifle using the non-trigger

hand. As the rifle is pushed forward, the shooter also pulls

the trigger, initiating the firing sequence. The bump stock

then harnesses the rearward recoil energy from the shot

causing the weapon to slide back into shooter’s shoulder

separating the trigger finger resting on the ledge and the

trigger itself. The constant forward pressure exerted by

the non-trigger hand on the barrel then pushes the

weapon forward “bumping” the weapon against the

stationary trigger finger. The back-and-forth sequence

allows a shooter to fire a semiautomatic rifle at rates

similar to automatic rifles.

Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 828–29 (W.D.

Mich. 2019).

3

After a mass shooting in Las Vegas, Nevada, in October 2017,

members of Congress and several nongovernmental organizations

asked ATF to examine whether bump-stock-type devices

constitute machineguns. Final Rule, 83 Fed. Reg. at 66,516. The

Las Vegas shooter fired several hundred rounds in a short span of

time—murdering scores of persons and wounding hundreds

more—by using bump-stock-type devices attached to his rifles. Id.

7a

Plaintiffs-Appellants (Gun Owners) filed this action

challenging the Final Rule and sought a preliminary

injunction to prevent it from going into effect. Gun

Owners of Am. v. Barr, 363 F. Supp. 3d 823, 825–26

(W.D. Mich. 2019), rev’d and remanded sub nom. Gun

Owners of Am., Inc. v. Garland, 992 F.3d 446 (6th Cir.

2021), reh’g en banc granted, opinion vacated, 2 F.4th

576 (6th Cir. 2021). The district court concluded that

Chevron’s two-step test provides the appropriate

standard of review to determine whether injunctive

relief is warranted. Id. at 830–31 (citing Chevron

U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837,

842–43 (1984)). First, the district court found that

Congress has not directly addressed whether bump

stocks are included within the statutory term

“machinegun” and that the definitional terms,

“automatically” and “single function of the trigger,” are

ambiguous. Id. at 831. Second, the district court

determined that the Final Rule’s interpretations of

“automatically” and “single function of the trigger” are

permissible and its classification of bump stocks as

machineguns is reasonable. Id. at 831–32. Concluding

that Gun Owners failed to demonstrate a likelihood of

success on the merits, the district court denied the

motion for a preliminary injunction.4 Id. at 832–33.

4

Before ruling on the motion, the district court correctly

concluded that ATF’s interpretations are not arbitrary or

capricious. Gun Owners, 363 F. Supp. 3d at 832–33. The Final

Rule acknowledges ATF’s previous treatment of bump stocks as

not meeting the definition of machinegun and sets forth sufficient

reasons for the new interpretations. 83 Fed. Reg. 66,514,

66,517–19. The Final Rule also adequately explains why bump

stocks are treated differently than other objects, such as belt

loops, that can assist in bump firing, and it sufficiently responds

8a

The district court’s judgment should be affirmed.

Chevron provides the standard of review, even though

the law under consideration has criminal applications.

Applying Chevron, Congress has not spoken to the

precise question at issue and, after exhausting the

traditional tools of statutory construction, § 5845(b)

remains ambiguous. Because ATF’s interpretation of

§ 5845(b) is a permissible construction of the statute

and is reasonable, it is entitled to Chevron deference.

Additionally, even without applying deference, the

Final Rule provides the best interpretation of

§ 5845(b). Accordingly, relief to enjoin the Final Rule

from going into effect is not warranted.

I. Chevron Applies

We apply Chevron when “Congress delegated

authority to the agency generally to make rules

carrying the force of law” and “the agency

interpretation” in question “was promulgated in the

exercise of that authority.” United States v. Mead

Corp., 533 U.S. 218, 226–27 (2001) (“Delegation of

such authority may be shown . . . by an agency’s power

to engage in . . . notice-and-comment rulemaking, or by

to the concern that semiautomatic guns without bump stocks

could be improperly classified as machineguns. Id. at 66,533–34.

Finally, regarding Gun Owners’ new assertion that the political

outcry following the mass shooting in Las Vegas—the likely cause

of then-President Trump’s call on ATF to review the

matter—somehow tainted the rulemaking process, “that is hardly

a reason to conclude that the Rule is arbitrary. Presidential

administrations are elected to make policy.” Guedes v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 34 (D.C. Cir.

2019).

9a

some other indication of comparable congressional

intent.”). Here, Congress expressly delegated

rulemaking authority to the Attorney General, who

delegated this authority to the director of ATF. 18

U.S.C. § 926(a); 26 U.S.C. §§ 7801(a)(2)(A), 7805(a); 28

C.F.R. § 0.130(a). ATF then promulgated the Final

Rule through notice-and-comment rulemaking,

expressly invoking § 926(a) (authority to promulgate

rules and regulations as are necessary to carry out

provisions of the Gun Control Act), § 7801(a)(2)(A)

(authority to administer and enforce provisions of the

National Firearms Act), and § 7805(a) (authority to

promulgate all needful rules and regulations to enforce

provisions of the National Firearms Act).5 Final Rule,

83 Fed. Reg. at 66,515–16; see also Bump-Stock-Type

Devices, 83 Fed. Reg. 13,442, 13,443–44 (notice of

proposed rulemaking). Thus, Chevron supplies the

standard of review for assessing the validity of the

Final Rule’s classification of bump-stock-type devices

as machineguns.6

5

Moreover, when responding to comments submitted in

opposition to the proposed rule, ATF described, over several

paragraphs, how Chevron would apply if the terms

“automatically” and “single function of the trigger” were

ambiguous, and how ATF’s construction of these terms is

reasonable under Chevron. Final Rule, 83 Fed. Reg. at 66,527.

This “exegesis on Chevron would have served no purpose unless

the agency intended the Rule to be legislative in character.”

Guedes, 920 F.3d at 19. Additionally, all other pertinent indicia of

agency intent confirm that the Final Rule is a legislative rule. Id.

at 18–19; accord Aposhian v. Barr, 958 F.3d 969, 980 (10th Cir.

2020).

6

Gun Owners argues that ATF waived Chevron by disclaiming

any reliance on it in this litigation. But, if we were to recognize

10a

Gun Owners and my colleagues who argue for

reversal assert that ATF’s delegated authority is too

general for Chevron deference to apply. Drawing a

distinction between explicit and implied delegations to

an agency, and relying on pre-Chevron cases, they

discount precedent applying Chevron to regulations

that have criminal applications. However, Chevron

itself does not suggest the distinction between implicit

and express delegations of rulemaking authority that

underlies the opinion to reverse. 467 U.S. at 843–44

(“The power of an administrative agency to administer

a congressionally created . . . program necessarily

requires the formulation of policy and the making of

rules to fill any gap left, implicitly or explicitly, by

Congress. . . . Sometimes the legislative delegation to

an agency on a particular question is implicit rather

than explicit.” (internal quotation marks and citation

such litigation positions as effective waivers in the context of

legislative rules, we would allow agencies to evade the

Administrative Procedure Act’s requirement to use the same

notice-and-comment process to amend or repeal a rule as used to

promulgate it. See Guedes, 920 F.3d at 22–23. Further, whether

to apply Chevron is a question for the court to decide, not an

agency’s lawyers. SoundExchange, Inc. v. Copyright Royalty Bd.,

904 F.3d 41, 54 (D.C. Cir. 2018). HollyFrontier Cheyenne Refinery,

LLC v. Renewable Fuels Ass’n, in which the Supreme Court, in a

short paragraph, declined to consider whether Chevron deference

was due, does not alter this conclusion. 141 S. Ct. 2172, 2180

(2021). HollyFrontier dealt only with an agency’s attempt to use

an unrelated rule, the validity of which was not in dispute, to

demonstrate the validity of the unpublished agency orders being

challenged. Id. That is, the Court did not address whether

Chevron deference could be waived with respect to a disputed

legislative rule. Nor did it hold that courts are prohibited from

applying Chevron when an agency decides not to rely on it in

litigation.

11a

omitted)). And the Supreme Court has made clear that

Chevron deference is not eliminated simply because

the rulemaking authority conferred the Attorney

General (and ATF, by extension) was not specified

with exactitude. Mayo Found. for Med. Educ. & Rsch.

v. United States, 562 U.S. 44, 56–57 (2011)

(establishing that Chevron deference is appropriate

when Congress delegated authority to make rules

carrying the force of law generally and the agency

interpretation was promulgated in the exercise of that

authority, and stating “[o]ur inquiry in that regard

does not turn on whether Congress’s delegation of

authority was general or specific”).

Moreover, the Supreme Court has considered—and

rejected—the premise that an implicit delegation

somehow confers less authority than an explicit

delegation. In City of Arlington v. F.C.C., the dissent

argued that Chevron deference should apply only

where a delegation of authority covered the “specific

provision” before the court. 569 U.S. 290, 322–23

(2013) (Roberts, C.J., dissenting). The majority

rejected this argument, noting that the dissent could

not produce “a single case in which a general conferral

of rulemaking or adjudicative authority has been held

insufficient to support Chevron deference for an

exercise of that authority within the agency’s

substantive field.” Id. at 306. The Court declined to

adopt this proposed “massive revision of our Chevron

jurisprudence.” Id. We must do so today. Applying the

statute to determine whether a device constitutes a

machinegun is within ATF’s substantive field. See, e.g.,

United States v. Dodson, 519 F. App’x 344, 348 (6th

Cir. 2013); Akins v. United States, 312 F. App’x 197,

12a

198 (11th Cir. 2009) (per curiam); F.J. Vollmer Co. v.

Higgins, 23 F.3d 448, 449–50 (D.C. Cir. 1994); York v.

Sec’y of Treasury, 774 F.2d 417, 419 (10th Cir. 1985).

Additionally, the Supreme Court has rejected

application of pre-Chevron tests in favor of

“maintaining a uniform approach to judicial review of

administrative action.” Mayo, 562 U.S. at 55 (quoting

Dickinson v. Zurko, 527 U.S. 150, 154 (1999))

(rejecting application of special pre-Chevron rules for

reviewing Treasury regulations). Ultimately, the

express/implied and specific/general distinctions have

no role to play in applying Chevron deference.

Those who argue for reversal also claim that

Chevron does not apply because the Final Rule may

impose criminal sanctions. However, this is not what

the case law says. Chevron itself involved an agency

interpretation with criminal applications—at the time,

a knowing violation of one of the disputed legislative

rule’s requirements was punishable by daily $25,000

fines and imprisonment for up to a year—and yet the

Supreme Court applied deference. 467 U.S. at 866; see

also 42 U.S.C. §§ 7502, 7413. In another case, Babbitt

v. Sweet Home Chapter of Communities for a Greater

Oregon, the Court applied Chevron when reviewing a

legislative rule that attached criminal penalties. 515

U.S. 687, 703–04 (1995). And in yet another case,

United States v. O’Hagan, a criminal case, the

Supreme Court applied Chevron deference to a

legislative rule despite the rule’s clear criminal

applications and penalties. 521 U.S. 642, 673 (1997).

What these cases make clear is that Chevron does not

13a

fall away simply because a challenged legislative rule

has some criminal applications.7

The relevant question is whether Congress

delegated to the agency authority to promulgate

legislative rules with criminal applications. And, when

the statute gives an agency broad power to enforce or

administer all provisions of the statute, it is “clear”

that the agency has the necessary authority to do so.

See Gonzales v. Oregon, 546 U.S. 243, 258–59 (2006).

Here, Congress broadly tasked the Attorney General

with promulgating “such rules and regulations as are

necessary to carry out the provisions” of the Gun

Control Act—a purely criminal statute—and to

“administ[er] and enforce[]” and “prescribe all needful

rules and regulations for the enforcement” of the

National Firearms Act—a statute with criminal

applications. 18 U.S.C. §§ 924(a)(2), 926(a); 26 U.S.C.

§§ 5871, 7801(a)(2)(A), 7805(a). This statutory context

clearly demonstrates that Congress intended the

authority delegated under the Gun Control Act and the

National Firearms Act to encompass legislative rules

with criminal applications. Guedes v. Bureau of

7

United States v. Apel, 571 U.S. 359 (2014), and Abramski v.

United States, 573 U.S. 169 (2014), do not compel a contrary

conclusion. Neither involved a legislative rule and, thus, neither

involved agency interpretations that would trigger Chevron. Nor

do they mention Chevron, Babbitt, or O’Hagan and, thus, Apel and

Abramski should not be read to overrule this precedent. To be

sure, there is an implied tension between the two lines of cases,

but this is for the Supreme Court to resolve, not us. Until the

Court does so, we must follow Chevron, Babbitt, and O’Hagan. See

Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1023–24 (6th Cir.

2016), rev’d on other grounds sub nom. Esquivel-Quintana v.

Sessions, 137 S. Ct. 1562 (2017).

14a

Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1,

25–26 (D.C. Cir. 2019).

Further, the rule of lenity does not displace

Chevron simply because an agency has interpreted a

statute carrying criminal penalties. The Supreme

Court considered this very question in Babbitt and

said:

We have applied the rule of lenity in a case

raising a narrow question concerning the

application of a statute that contains criminal

sanctions to a specific factual dispute . . . where

no regulation was present. We have never

suggested that the rule of lenity should provide

the standard for reviewing facial challenges to

administrative regulations whenever the

governing statute authorizes criminal

enforcement.

515 U.S. at 703–04, 704 n.18 (citation omitted). To be

sure, the Babbitt Court also hypothesized that a

regulation may “provide such inadequate notice of

potential liability so as to offend the rule of lenity,” but

this is simply an acknowledgment that a law imposing

criminal sanctions—whether it be a statute or a

regulation—must provide fair notice of the prohibited

conduct. Id. at 704 n.18.

The Babbitt Court went on to determine that “the

‘harm’ regulation, which has existed for two decades

and gives fair warning of its consequences,” was not

such a rule-of-lenity-violating regulation. Id. To read

this sentence to mean that a regulation that breaks

15a

from a previous interpretation likely offends the rule

of lenity is to apply false logic. Although the Court

suggested that a longstanding regulation could hardly

be expected to offend the rule of lenity, it did not

suggest the converse—that any new, contrary

interpretation would, by itself, trigger doubt. And,

based on the remainder of the sentence, fair warning

of the regulation’s consequences—in and of itself, with

no relation to the age of a regulation or whether it

effected a reversal in position—would undermine the

rule of lenity’s applicability.8 Further, “[a]gency

inconsistency is not a basis for declining to analyze the

agency’s interpretation under the Chevron

framework.” Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 981 (2005).

Here, as in Babbitt, there is a legislative

regulation—the Final Rule—which was promulgated

under authority delegated to an agency and involves

the interpretation of a statute with criminal

applications.9 83 Fed. Reg. 66,514; see also 18 U.S.C. §§

8

Even if the Final Rule were to be attacked in relation to its

application to a specific factual dispute, it underwent the noticeand-comment process and over 186,000 comments were received,

including one by Gun Owners on behalf of more than 1.5 million

gun owners. The Final Rule was also published in the Federal

Register. It is doubtful that these procedures provide such

inadequate notice of potential liability as to offend the rule of

lenity. See Guedes, 920 F.3d at 28.

9

The circumstances in Babbitt are analogous to the

circumstances here. In Babbitt, Congress defined the word “take”

but did not further define the terms it used to define “take.” 515

U.S. at 691. An agency interpreted one of the definitional

terms—“harm”—to include habitat modification. The plaintiffs

16a

924(a)(2), 926(a); 26 U.S.C. §§ 5845(b), 5871,

7801(a)(2)(A), 7805(a); 28 C.F.R. § 0.130(a). There is no

dispute concerning the application of the Final Rule to

a specific factual situation. Thus, under Babbitt, it is

clear that Chevron deference provides the standard of

review, not the rule of lenity.

My colleagues in favor of reversal suggest two other

reasons why Chevron ought not to apply in the context

of laws with criminal consequences: deferring to

agency expertise may be warranted when interpreting

civil statutes but not when agencies interpret laws

with criminal penalties; and delegation in the criminal

context violates the separation-of-powers principle.

The arguments in support of these rationales are

challenged that interpretation, arguing that Congress did not

intend “take” to mean habitat modification. Id. at 691, 693. In the

instant case, Congress defined “machinegun” using the terms

“automatically” and “single function of the trigger” without

further defining these terms. ATF interpreted “automatically” and

“single function of the trigger” to mean, in conjunction, “a single

pull of the trigger” to initiate “a self-acting or self-regulating

mechanism” to allow “continuous firing without additional

physical manipulation of the trigger by the shooter,” which has

the effect of including bump-stock-type devices as machineguns.

Final Rule, 83 Fed. Reg. at 66,553–54. Gun Owners challenges

this interpretation, arguing that Congress did not intend

“machinegun” to include bump stocks. My colleagues favoring

reversal distinguish Babbitt on the basis that it is an expressdelegation case, whereas neither the National Firearms Act nor

the Gun Control Act explicitly authorizes the Attorney General to

issue regulations with criminal applications. But, again, when a

statute gives an agency broad power to enforce or administer all

its provisions, as is the case here, it is “clear” that the agency has

the necessary authority to do so. See Gonzales, 546 U.S. at

258–59.

17a

largely based on policy, analogy, and law review

articles,10 but not precedent.

There are many areas where Congress relies on

agency expertise to implement laws with criminal

applications. Just to name a few, we have highly

technical and complex securities, tax, workplace

safety, and environmental-law regimes in which the

applicable agency exercises delegated authority to

promulgate regulations fleshing out statutory

provisions—regulations that have both civil and

criminal applications. And no one contests that

criminal law and procedure afford special protections

to a criminal defendant that are not accorded to a civil

defendant. But it does not follow that an agency’s lawinterpreting power falls away in the criminal context

where the power was properly delegated to the agency

and exercised through legislative rulemaking. To the

extent my colleagues’ inclination to cabin agency

expertise to civil applications is motivated more by a

displeasure with Chevron’s continued validity and

legislative delegation more broadly, Chevron is the law

and legislative delegation is a reality.

That legislative delegation is permissible

undermines the separation-of-powers rationale as well.

The Supreme Court has recognized Congress’s

delegation authority in the criminal context for over a

century. For example, in United States v. Grimaud,

10

For an article expressing a contrary view, see Sanford N.

Greenberg, Who Says It’s a Crime: Chevron Deference to Agency

Interpretations of Regulatory Statutes That Create Criminal

Liability, 58 U. PITT. L. REV. 1 (1996), especially Section III.

18a

220 U.S. 506 (1911), Congress delegated to the

Secretary of Agriculture the power to promulgate

rules—with criminal penalties—to preserve certain

forest reserves. Id. at 507–09. The Secretary issued a

rule prohibiting livestock grazing near these reserves

without a permit. Id. at 509. The defendant sheep

farmers were indicted for violating this rule. Id. They

argued that the rule was unconstitutional because

Congress could not “mak[e] it an offense to violate

rules and regulations made and promulgated by the

Secretary of Agriculture,” since doing so would

“delegate its legislative power to an administrative

officer.” Id. at 513. Although Congress had not

declared, “in express terms,” that it was unlawful to

graze sheep on a forest reserve, the Supreme Court

rejected the challenge. See id. at 521 (rejecting the

argument that the rules were invalid merely “because

the violation thereof is punished as a public offense”).

In the ensuing decades, several Supreme Court

decisions recognized that Congress may delegate

legislative authority in the criminal context. See, e.g.,

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

394, 406–07 (1928) (“The field of Congress involves all

and many varieties of legislative action, and Congress

has found it necessary to use officers of the executive

branch within defined limits, to secure the exact effect

intended by its acts of legislation, by vesting discretion

in such officers to make public regulations interpreting

a statute and directing the details of its execution,

even to the extent of providing for penalizing a breach

of such regulations.” (citing Grimaud, 220 U.S. at 518)

(other citations omitted)); Yakus v. United States, 321

U.S. 414, 418, 423–25 (1944) (upholding delegation of

19a

authority to agency to issue price-limit regulations

under Emergency Price Control Act even though

violating the regulations carried criminal penalties,

and rejecting non-delegation and separation-of-powers

challenges by criminal defendants convicted of

violating those regulations); United States v. Mistretta,

488 U.S. 361, 371–74, 394–96 (1989) (upholding

delegation of authority to Sentencing Commission to

define criminal sentencing ranges and rejecting nondelegation and separation-of-powers challenges by

criminal defendant).

In Touby v. United States, 500 U.S. 160, 164–69

(1991), the Supreme Court upheld a delegation of

legislative authority to the Attorney General (and the

Attorney General to the Drug Enforcement

Administration) to temporarily schedule substances

under the Controlled Substances Act—a determination

that carried criminal implications—and rejected

arguments that this delegation violated the nondelegation doctrine or the separation of powers. The

petitioners, who were convicted for manufacturing a

temporarily scheduled substance, argued that because

the delegated authority contemplated regulations with

criminal sanctions, Congress was required to provide

more specific direction than the intelligible principle

normally required. Id. at 165–66. They also argued

that allowing the Attorney General to both schedule

particular drugs and prosecute individuals for

manufacturing them—rather than designating a

different executive to temporarily schedule the

substances—violated the separation-of-powers

doctrine. Id. at 167. Finally, the petitioners claimed

that the Attorney General improperly delegated his

20a

temporary scheduling power to the DEA. Id. at 169.

The Court rejected all three arguments. Id. It

concluded that under any standard the statute

meaningfully constrains the Attorney General’s

discretion to define criminal conduct and that the

separation-of-powers doctrine was not violated. Id. at

167–69. Similarly, in United States v. Stevenson, 676

F.3d 557, 565 (6th Cir. 2012), we held that the

“Attorney General was properly delegated authority by

Congress to enact [a] substantive rule” providing that

a federal sex-offender registration statute—which

imposed criminal penalties—applied retroactively to

those convicted of sex crimes prior to the statute’s

passage. See id. at 563 n.3 (rejecting defendants’

argument “that Congress lacked the constitutional

authority to delegate this power to the Attorney

General”).

No one asserts that the National Firearms Act or

the Gun Control Acts lacks an intelligible principle or

that the Attorney General improperly delegated power

to ATF. And to the extent that it is argued that

Congress cannot give the Attorney General the power

to implement a criminal statute through rulemaking

and also enforce it, this is inconsistent with Touby. 500

U.S. at 167–68.

In sum, the district court correctly determined that

Chevron provides the standard of review by which to

assess the Final Rule.

II. Applying Chevron

21a

The Chevron framework consists of two steps. At

step one, we ask whether the intent of Congress is

clear and, if so, “that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842–43. If, on the other hand, the

court determines Congress has not directly addressed

the precise question at issue and the statute is

ambiguous with respect to the issue, then, at step two,

we ask if the agency’s interpretation is “based on a

permissible construction of the statute.” Id. at 843.

A. Step One

“Machinegun” is defined in the National Firearms

Act and the Gun Control Act as “any weapon which

shoots, is designed to shoot, or can be readily restored

to shoot, automatically more than one shot, without

manual reloading, by a single function of the trigger.”

26 U.S.C. § 5845(b); 18 U.S.C. § 921(a)(23). The Final

Rule defines “automatically” to mean “functioning as

the result of a self-acting or self-regulating mechanism

that allows the firing of multiple rounds through a

single function of the trigger” and “single function of

the trigger” to mean “a single pull of the trigger and

analogous motions.” 83 Fed. Reg at 66,553. As a result,

the Final Rule defines the term “machinegun” to

include bump-stock-type devices. Id.

To determine whether Congress has spoken directly

to the precise question at issue—whether

“machinegun” includes bump-stock devices—or

whether the statute is silent or ambiguous regarding

this issue, we employ traditional tools of statutory

22a

construction.11 Chevron, 467 U.S. at 843 n.9. Beginning

with the statutes themselves, neither the National

Firearms Act nor the Gun Control Act defines

“automatically” or “single function of the trigger.”

When considering the statutory context, dictionary

definitions, and everyday situations, however, both

terms admit of more than one interpretation—that is,

they are ambiguous. See All. for Cmty. Media v. F.C.C.,

529 F.3d 763, 777 (6th Cir. 2008).

The phrase “single function of the trigger” is

capable of two readings: one favoring the government

11

The rule of lenity is a canon of construction. However, as

discussed, it does not foreclose Chevron deference in the context

of legislative rules interpreting statutes with criminal

applications. Additionally, it “only serves as an aid for resolving

an ambiguity,” meaning that it “comes into operation at the end

of the process of construing what Congress has expressed” and

only “when the ordinary canons of statutory construction have

revealed no satisfactory construction.” Lockhart v. United States,

577 U.S. 347, 361 (2016); Callanan v. United States, 364 U.S. 587,

596 (1961). As such, perhaps the rule of lenity would have a role

to play if a permissible construction of Congress’s intent could not

be found by the end of the Chevron analysis. See Maracich v.

Spears, 570 U.S. 48, 76 (2013). But this is not the case here.

My colleagues in favor of reversal suggest that Solid

Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs stands for

the proposition that the rule of lenity must be applied at the

outset to determine if the statute is unambiguous. Solid Waste

says no such thing. In fact, its only reference to the rule of lenity

comes when the Supreme Court expressly declines to consider the

argument that the rule of lenity displaces Chevron. See 531 U.S.

159, 174 n.8 (2001). It is true that the Court declined to apply

Chevron, but this was because the agency’s interpretation of its

own jurisdiction would have potentially extended beyond the outer

bounds of Congress’s Commerce Clause authority and created

federalism—not fair notice—concerns. Id. at 173-74.

23a

(the “shooter-focused” reading), the other favoring Gun

Owners (the “mechanical” reading). The shooterfocused reading corresponds to a single “pull” of the

trigger—i.e., a single human action upon the trigger

that initiates a rapid-fire sequence. Under this

reading, a bump-stock-equipped rifle constitutes a

machinegun because a single human action—the

initial “pull” of the trigger—initiates a rapid firing

sequence. The mechanical reading takes the phrase

“single function of the trigger” to mean “single

depression of the trigger.” Under this view, a bumpstock-equipped rifle is not a machinegun because each

bullet fired is initiated by a separate depression of the

trigger, albeit one generated by the weapon’s recoil.

Accord Guedes, 920 F.3d at 29.

Both readings are plausible. “The word ‘function’

focuses on the ‘mode of action’ . . . by which the trigger

operates. But that definition begs the question []

whether ‘function’ requires our focus upon the

movement of the trigger, or the movement of the

trigger finger. The statute is silent in this regard.”

Aposhian, 958 F.3d at 986 (quoting 4 OXFORD

ENGLISH DICTIONARY 602 (1933));12 see also

12

Accord Guedes, 920 F.3d at 29 (“A mechanical perspective, for

instance, might focus on the trigger’s release of the hammer,

which causes the release of a round. From that perspective, a

‘single function of the trigger’ yields a single round of fire when a

bump-stock device moves the trigger back and forth. By contrast,

from the perspective of the shooter’s action, the function of pulling

the trigger a single time . . . yields multiple rounds of fire. . . .

Neither of those interpretations is compelled (or foreclosed) by the

term ‘function’ in ‘single function of the trigger.’ The word

‘function’ focuses our attention on the ‘mode of action’ . . . by which

24a

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 920-21 (1967) (defining “function” as an

“action”). Because neither reading is “unambiguously

‘compel[led]’ by the statute, to the exclusion of the

other one,” the statute “contains a ‘gap for the agency

to fill.’” Guedes, 920 F.3d at 29–30 (quoting Chevron,

467 U.S. at 843, 860)).

The word “automatically” is also ambiguous. The

statute provides that a machinegun is a “weapon

which shoots . . . automatically more than one shot,

without manual reloading, by a single function of the

trigger.” 26 U.S.C. § 5845(b) (emphasis added). Here,

too, there are competing interpretations, and the text

does not unambiguously foreclose either of them.

Gun Owners argues that the phrase “automatically”

must mean by itself with little or no direct human

control and, because a shooter must exert constant

pressure to cause a bump-stock-equipped rifle to

continue firing, these devices do not create weapons

that shoot automatically. The government argues that

“automatically” means self-acting or self-regulating. In

the government’s view, a bump-stock-equipped rifle is

“self-acting” in the sense that once the shooter

establishes the conditions necessary to begin the firing

process—pulling the trigger, placing a finger on the

extension ledge, and applying pressure on the barrelshroud or fore-stock with the other hand—the bump

stock “eliminate[s] the need for the shooter to

manually capture, harness, or otherwise utilize [the

the trigger operates. But the text is silent on the crucial question

of which perspective is relevant.” (citations omitted)).

25a

recoil] energy to fire additional rounds.” Final Rule, 83

Fed. Reg. at 66,532.

According to dictionary definitions at the time the

National Firearms Act was enacted, the word

“automatically”—the adverbial form of the word

“automatic”—means “[h]aving a self-acting or selfregulating mechanism that performs a required act at

a predetermined point in an operation[.]” WEBSTER’S

NEW INTERNATIONAL DICTIONARY 187 (2d ed.

1934); see also 1 OXFORD ENGLISH DICTIONARY

574 (1933) (defining “Automatic” as “[s]elf-acting

under conditions fixed for it, going of itself”). The focus

on a “self-regulating mechanism” cuts against the

suggestion that the word “automatically” requires

complete, as opposed to partial, automation, and lends

support to ATF’s classification. Further, the argument

that bump-stock-equipped weapons do not fire

“automatically” because they require constant forward

pressure is belied by common usage of the word

“automatic.” For example, “an ‘automatic’ sewing

machine still ‘requires the user to press a pedal and

direct the fabric.’” Guedes, 920 F.3d at 30 (citation

omitted)). And an “automatic” car shifts gears on its

own, but only if the driver maintains enough constant

pressure on the gas pedal to reach a speed that

triggers a gear shift.

As other courts have recognized, the ultimate

question is how much human input is contemplated by

the word “automatically.” That is a question of degree

that the statute’s text does not definitively answer.

The D.C. Circuit’s explanation captures this point well:

26a

The term “automatically” does not require that

there be no human involvement to give rise to

“more than one shot.” Rather, the term can be

read to require only that there be limited human

involvement to bring about more than one shot.

See, e.g., Webster’s New International

Dictionary 157 (defining “automatically” as the

adverbial form of “automatic”); id. at 156

(defining “automatic” as “self-acting or selfregulating,” especially applied to “machinery or

devices which perform parts of the work

formerly or usually done by hand” (emphasis

added)). But how much human input in the

“self-acting or self-regulating” mechanism is too

much?

. . . . [T]he phrase “by a single function of the

trigger” . . . can naturally be read to establish

only the preconditions for setting off the

“automatic” mechanism, without foreclosing

some further degree of manual input such as the

constant forward pressure needed to engage the

bump stock in the first instance. And if so, then

the identified ambiguity endures. How much

further input is permitted in the mechanism set

in motion by the trigger? The statute does not

say.

Guedes, 920 F.3d at 30-31. Thus, “automatically” is

also ambiguous.

In sum, because neither party’s interpretation of

either term is unambiguously compelled by the

statute, the statutory definition of “machinegun”

contains two central ambiguities, which ATF has

27a

attempted to resolve. This leads to step two of the

analysis under Chevron.

B. Step Two

When employing the Chevron framework, we do not

ask if the agency’s construction is the best reading of

the statute. Id. at 843 n.11. The question is whether

ATF’s interpretations of “single function of the trigger”

and “automatically” are permissible. Mead, 533 U.S. at

229.

Since 2006, ATF has interpreted “single function of

the trigger” to mean “single pull of the trigger,” a

reading that is “consonant with the statute and its

legislative history.” Akins, 312 F. App’x at 198. When

the National Firearms Act was enacted in 1934, the

president of the National Rifle Association testified in

a congressional hearing that any gun capable of firing

more than one shot by a single pull of the trigger was

a machinegun, and the House Report accompanying

the bill that became the National Firearms Act said

the same. See H.R. Rep. No. 73-1780, at 2 (1934); Final

Rule, 83 Fed. Reg. at 66,518. Thus, ATF’s

interpretation of “single function of the trigger” is a

permissible construction. Accord Aposhian, 958 F.3d at

988; Guedes, 920 F.3d at 31. Further, ATF’s focus on

the single human action upon the trigger is

reasonable. The practical effect of the bump-stock

device is to turn a semiautomatic firearm into a rapidfire firearm that only requires the person firing the

gun to pull the trigger once.

28a

ATF’s interpretation of “automatically” as “selfacting or self-regulating” is permissible as well.

Although this interpretation allows for some measure

of human involvement, it accords with the everyday

understanding of the term and relevant dictionary

definitions from when “machinegun” was first defined

in 1934 by the National Firearms Act and later

slightly altered in 1968 by the Gun Control Act. For

example, understanding “automatic” to allow for some

human involvement, not complete autonomy, is

commonplace. Guedes, 920 F.3d at 31; Aposhian, 958

F.3d at 989 (“The bump stock performs part of the

work usually done by hand at a predetermined point in

the operation, under conditions fixed for it by the

shooter.”). Additionally, Webster’s New International

Dictionary defined “automatic” as “[h]aving a selfacting or self-regulating mechanism,” and dictionaries

from 1965 and 1967 do the same. WEBSTER’S NEW

INTERNATIONAL DICTIONARY 187 (2d ed. 1934);

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 148 (1965); WEBSTER’S SEVENTH

NEW COLLEGIATE DICTIONARY 60 (1967). ATF’s

interpretation of “automatically” is therefore a

permissible construction. Accord Aposhian, 958 F.3d at

988–89; Guedes, 920 F.3d at 31–32. It is also

reasonable to read “automatically” to require only

partial self-regulation—i.e., a mechanism that allows

for an integral part of a process to be performed

autonomously. Because bump-stock-type devices

harness the recoil energy from each shot so that the

trigger resets and continues firing without additional

physical manipulation of the trigger by the shooter,

they can reasonably be understood to produce more

than one shot, automatically.

29a

In sum, § 5845(b) is ambiguous and ATF’s

construction of it is permissible and reasonable. The

court must therefore defer to ATF’s interpretation.

III. Assuming Chevron Does Not Apply

Assuming arguendo that Chevron does not apply,

the district-court judgment should still be affirmed.

Because ATF has been entrusted to administer both

the National Firearms Act and the Gun Control Act,

and its views “constitute a body of experience and

informed judgment to which courts . . . may properly

resort for guidance,” its construction of § 5845(b) is not

“outside the pale of any deference whatever.” Mead,

533 U.S. at 227–28, 234 (quoting Skidmore v. Swift

Co., 323 U.S. 134, 140 (1944)). The Final Rule may

warrant Skidmore deference, depending “upon the

thoroughness evident in its consideration, the validity

of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it

power to persuade, if lacking power to control.” Id. at

228 (quoting Skidmore, 323 U.S. at 139–40); see also

id. (“[C]ourts have looked to the degree of the agency’s

care, its consistency, formality, and relative

expertness[.]” (footnotes omitted)).

In ten letter rulings issued between 2008 and 2017,

ATF applied its “single pull of the trigger”

interpretation to other bump-stock-type devices but

ultimately concluded that the devices were not

machineguns because they did not “automatically”

shoot more than one shot with a single pull. Final

Rule, 83 Fed. Reg. at 66,517. None of them, however,

extensively examined the meaning of “automatically.”

30a

Id. Moreover, this position was inconsistent with the

position taken by ATF in 2006, when it concluded that

one such bump-stock-type device—the Akins

Accelerator, which allowed the shooter to initiate an

automatic firing cycle by pulling the trigger once,

thereby harnessing the recoil energy of the rifle to fire

more than one shot without further human input by

means of internal springs within the device—was a

machinegun. Id. After the 2017 mass shooting in Las

Vegas, Nevada, ATF recognized that its earlier letter

rulings failed to provide substantial or consistent legal

analysis regarding the meaning of the term

“automatically” and deviated from its 2006 position

defining a bump-stock-type device as a machinegun,13

which the Final Rule sets out to correct. Id. at

66,517–18.

ATF unquestionably has abundant experience and

expertise in determining which devices constitute

machineguns. Additionally, the Final Rule went

13

Although the bump-stock-type devices described in the Final

Rule harness the recoil energy of a rifle differently than the Akins

Accelerator—by means of a sliding stock that allows the weapon

to slide back into the shooter’s shoulder after the discharge of a

round and then forward into the stationary trigger finger by

maintaining pressure on the barrel-shroud or fore-grip of the rifle,

rather than internal springs—both are designed to the same end.

They each harness a rifle’s recoil energy to produce an automatic

firing cycle beginning with a single pull of the trigger and

continuing without additional manipulation of the trigger or

significant manipulation of the firearm by the shooter until the

trigger finger is withdrawn, the weapon malfunctions, or the

ammunition supply is exhausted. 83 Fed. Reg. at 66,517–18. The

absence of significant manipulation of the firearm distinguishes

the bump stock from the pump-action shotgun.

31a

through the highly formal process of notice and

comment. And, in promulgating the Final Rule, ATF

responded to over 186,000 comments—including one

by Plaintiff Gun Owners on behalf of more than 1.5

million gun owners—and provided expansive

reasoning for why bump stocks are machineguns,

demonstrating a great degree of care in considering

the issue. These factors—together with the validity of

ATF’s reasoning—entitle ATF’s interpretation to at

least Skidmore deference.

Finally, ignoring all deference, ATF’s interpretation

of the statute is the best one. According to Gun

Owners and my colleagues favoring reversal, Congress

meant only to prohibit weapons capable of firing more

than one shot with a single mechanical depression of

the trigger. This interpretation would exclude

semiautomatic rifles with bump stocks attached

because they fire only a single shot each time the

trigger is depressed—notwithstanding that the trigger

is depressed by the operation of the bump stock and

the bump stock allows the shooter to fire

semiautomatic rifles at the rapid rates of automatic

weapons with one activation of the trigger. However,

this reading neglects to account for how

“automatically” and “single function of the trigger”

work together as a practical matter, and therefore fails

to give full meaning to the statutory definition.

When reading the key statutory terms of

“machinegun” in conjunction with each other—“any

weapon which shoots,” “automatically more than one

shot,” “by a single function of the trigger”—the

definition refers to any weapon that is capable of

32a

discharging multiple rounds by means of a mechanism

set in motion by a single function of the trigger. Courts

have recognized “single function” to mean “single pull,”

as this is “consonant with the statute and its

legislative history,” Akins, 312 F. App’x at 200; and

“automatically” to refer to a self-acting mechanism set

in motion by a single pull of the trigger to discharge

multiple rounds, United States v. Olofson, 563 F.3d

652, 658 (7th Cir. 2009). Moreover, as mentioned

above, understanding “automatically” and “single

function” to refer to, respectively, a self-regulating

mechanism and a single human action is consistent

with dictionary definitions from the relevant

timeframe.

Thus, the best interpretation of § 5845(b) is that

Congress, in defining “machinegun” as it did, intended

to prohibit weapons capable of discharging multiple

rounds continuously by means of a self-regulating

mechanism initiated by a single human input on the

trigger. This is precisely the interpretation the Final

Rule provides. And, as the Final Rule thoroughly

explains, this is exactly how a bump stock operates:

after a shooter gets into position, a single pull of the

trigger by the shooter initiates a sequence in which the

bump stock harnesses and directs the firearms’ recoil

energy so that the firearm fires continuously without

additional physical manipulation of the trigger by the

shooter or any manual reloading. 83 Fed. Reg. at

66,516.

Thus, not only does ATF’s interpretation warrant

Skidmore deference, but, in the absence of all

deference, and simply as a matter of statutory

33a

interpretation, it also embodies the best reading of the

statute.

***

In sum, the rule of lenity is inapplicable. The

Chevron framework applies to ATF’s legislative

regulation—the Final Rule; and because the statute is

ambiguous and ATF’s construction is permissible and

reasonable, it warrants deference. Alternatively, ATF’s

interpretation of the statute is entitled to Skidmore

deference. Finally, simply as a matter of statutory

interpretation, the Final Rule embodies the best

interpretation of the statute and operates to provide

fair notice of that interpretation. The district court’s

judgment should be affirmed.

_________________________________________________

OPINION IN SUPPORT OF AFFIRMING THE

DISTRICT COURT’S JUDGMENT

_________________________________________________

GIBBONS, Circuit Judge, writing in support of

affirming the district court judgment. I agree with

Judge White’s assertion that Chevron applies to

statutes with criminal penalties and her conclusion of

the outcome under Chevron. I write separately, as

Judge White ultimately concludes in the alternative,

because Chevron application is unnecessary here. The

ATF’s interpretation of “single function of the trigger”

and “automatically” is unambiguously the best

interpretation of the Gun Control Act using ordinary

tools of statutory construction. Congress specifically

prohibited “any part designed and intended solely and

34a

exclusively . . . for use in converting a weapon into a

machinegun.” 26 U.S.C. § 5845(b). As a part designed

to convert a semiautomatic gun into a gun with

machinegun functionality that “automatically” allows

for multiple shots with a “single function of the

trigger,” a bump stock is unambiguously a

machinegun. When a shooter pulls the trigger of a

firearm fitted with a bump stock, the gun, through “a

self-acting or self-regulating mechanism,” 83 Fed. Reg.

246, 66514, 66519 (Dec. 26, 2018), fires “more than one

shot, without manual reloading, by a single function of

the trigger.” 26 U.S.C. § 5845(b). Indeed, that is

precisely what a bump stock is designed to allow a gun

to do, and that is why people purchase bump stocks.

Holding otherwise would allow gun manufacturers to

circumvent Congress’s longtime ban on machineguns

by designing parts specifically intended to achieve

machinegun functionality with a single pull of the

trigger so long as the part also requires some minutia

of human involvement.

35a

_________________

DISSENT

_________________

MURPHY, Circuit Judge, dissenting. Since the

early days of our Republic, it has been a bedrock legal

principle that our government cannot criminalize

conduct and send people to prison except through

democratically passed laws that have made it through

both Houses of Congress and been signed by the

President. See United States v. Hudson, 11 U.S. 32, 34

(1812). Yet the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF) has sought to ban “bump stocks”

in a far different way: through a regulation adopted by

a federal agency alone. Bump-Stock-Type Devices, 83

Fed. Reg. 66,514 (Dec. 26, 2018) (“Bump-Stock Rule”).

By an equally divided vote, our court affirms a decision

rejecting a legal challenge to the ATF’s Bump-Stock

Rule. I must respectfully dissent from this judgment.

Nothing in Congress’s two relevant statutes delegates

to the ATF such broad power to expand a crime’s scope

through this sort of regulatory lawmaking.

In 1986, Congress amended the Gun Control Act of

1968 to make it a crime to possess a “machinegun,” 18

U.S.C. § 922(o)(1), a term defined in the National

Firearms Act of 1934, 26 U.S.C. § 5845(b). Gun Owners

of Am., Inc. v. Garland, 992 F.3d 446, 450–51 (6th Cir.

2021). For years, the ATF asserted that private parties

could lawfully possess the bump stocks at issue in this

case because these devices did not fall within

Congress’s “machinegun” definition. Bump-Stock Rule,

83 Fed. Reg. at 66,516. So Americans bought millions

36a

of dollars’ worth of bump stocks. Id. at 66,547. Then

the ATF changed its position. In the Bump-Stock Rule,

the ATF agreed that the possession of bump stocks had

been lawful in the past but asserted that the devices

would become illegal “machineguns” on the rule’s

effective date. Id. at 66,525. There thus can be no

doubt that the Bump-Stock Rule creates a new crime.

Judge Batchelder’s panel opinion persuasively

explained that neither the Gun Control Act nor the

National Firearms Act gives the ATF the power to

expand the law banning machine guns through this

legislative shortcut. Gun Owners, 992 F.3d at 454–74.

I write to add a few more thoughts on why bump

stocks are not “machineguns” under these laws and

why we cannot fall back on “Chevron deference” to

save the ATF’s rule. See Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837 (1984). Many

people, I suspect, would not understand why anyone

would want to own a bump stock, a device that helps

a person shoot semiautomatic rifles at rapid rates

approaching those of automatic weapons. But this case

has nothing to do with the policy debate over whether

Congress should have banned bump stocks after the

tragic Las Vegas shooting in 2017. Despite the

introduction of multiple bills, Congress opted not to

pass such legislation. And while the burdensome

legislative process may seem “unworkable” in today’s

polarized age, it is a core component of our separation

of powers designed to protect the liberty of all

Americans—not just bump-stock owners. INS v.

Chadha, 462 U.S. 919, 959 (1983). Whether one favors

or disfavors a policy banning bump stocks, we should

37a

all be concerned with the way in which the federal

government has enacted that policy into law.

I

This case implicates administrative-law questions

with significance for many statutes. At bottom,

though, it raises a pure question of statutory

interpretation: Are rifles fitted with bump stocks

“machineguns” under the definition in 26 U.S.C.

§ 5845(b)? We have long described this type of question

as “the bread and butter of the work of federal courts.”

Dolfi v. Pontesso, 156 F.3d 696, 700 (6th Cir. 1998). I

do not find it particularly difficult to answer.

The parties largely agree on the “basic” facts. U.S.

Bank Nat’l Ass’n v. Vill. at Lakeridge, LLC, 138 S. Ct.

960, 966 (2018). Many rifles are either “automatic” or

“semiautomatic.” An “automatic” rifle continuously

fires shots with one activation of the trigger, so a

shooter must release the trigger to stop firing. See

Webster’s Ninth New Collegiate Dictionary 118 (1984);

Webster’s New International Dictionary of the English

Language 187 (2d ed. 1934) (“Webster’s Second”). A

“semiautomatic” rifle fires only one shot with one

activation of the trigger, so a shooter must release and

reengage the trigger for each shot. See Webster’s

Second, supra, at 2274.

Automatic weapons usually fire at greater speeds

than semiautomatic weapons because the shooter can

hold down the trigger to keep firing and need not

repeatedly release and reengage it. See Bump-Stock

Rule, 83 Fed. Reg. at 66,516. But experts can “bump

38a

fire” semiautomatic rifles at rates approaching those

of some automatic firearms. An ATF official described

bump firing as “rapid manual trigger manipulation to

simulate automatic fire,” Letter, R.1-4, PageID 34; the

Bump-Stock Rule describes it as a “technique that any

shooter can perform with training or with everyday

items such as a rubber band or belt loop,” 83 Fed. Reg.

at 66,532. A shooter who bump fires relies on the recoil

energy from the rifle’s discharge to push the gun

slightly backward away from the trigger finger, which

remains stationary. The rifle’s trigger resets as it

separates from the trigger finger. The shooter then

uses the non-trigger hand placed on the rifle’s fore-end

to push the gun (and thus the trigger) slightly forward.

The trigger “bumps” into the still-stationary trigger

finger, discharging a second shot. The recoil energy

from each additional shot combined with the shooter’s

forward pressure with the non-trigger hand allows the

rifle’s backward-forward cycle to repeat itself rapidly.

A shooter may also use a belt loop to bump fire by

sticking the trigger finger inside the loop and shooting

from waist level to keep the rifle more stable. See id. at

66,533.

A bump stock also helps a shooter engage in rapid

bump firing. It replaces a semiautomatic rifle’s

standard stock with one that allows the rifle to slide

back and forth within the stock by about 1.5 inches. Id.

at 66,516, 66,518. This bump stock channels the recoil

energy from the rifle’s discharge in “constrained linear

rearward and forward paths” and relieves the shooter

of the need to “manually capture and direct” the recoil

energy. Id. at 66,532. Yet a shooter still must use the

non-trigger hand to put forward pressure on the

39a

fore-end so that the rifle and trigger move forward

after the recoil. Id. at 66,518. When the shooter’s

manual pressure pushes the trigger forward, it bumps

into the trigger finger and discharges a second shot.

The process repeats itself rapidly in the same general

manner that it would were the shooter to bump fire

without a bump stock. Id.

Given these facts, a bump stock does not qualify as

a “machinegun.” 26 U.S.C. § 5845(b); 18 U.S.C.

§ 921(23). Congress defined the word to cover both a

weapon that “shoots” “automatically more than one

shot” “by a single function of the trigger” and a “part”

that is “designed” “exclusively” “for use in converting

a weapon into a machinegun”:

The term “machinegun” means any weapon

which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more

than one shot, without manual reloading, by a

single function of the trigger. The term shall

also include the frame or receiver of any such

weapon, any part designed and intended solely

and exclusively, or combination of parts

designed and intended, for use in converting a

weapon into a machinegun, and any

combination of parts from which a machinegun

can be assembled if such parts are in the

possession or under the control of a person.

26 U.S.C. § 5845(b). For a bump stock to be a

“machinegun” under this definition, a rifle fitted with

that device must qualify as one. Yet such a

“bump-stock rifle” does not qualify.

40a

To begin with, a bump-stock rifle does not shoot

“more than one shot” “by a single function of the

trigger.” A “function” of a tangible thing is the “natural

and proper action” that it performs. Webster’s Second,

supra, at 876; American Heritage Dictionary of the

English Language 533 (1969). Put another way, a

thing’s “function” is “the action for which [the] . . .

thing is specially fitted or used or for which [the] thing

exists[.]” Webster’s Ninth, supra, at 498. And putting

a bump stock on a semiautomatic rifle does not change

the “function” of its “trigger”: to discharge one round

per depression. All agree that a bump-stock rifle’s

trigger must be released and “re-engage[d]” between

shots—just as occurs with ordinary bump firing. 83

Fed. Reg. at 66,516; United States v. Alkazahg, __ M.J.

__, 2021 WL 4058360, at *5 (N-M Ct. Crim. App. Sept.

7, 2021). The firearm thus shoots one shot per trigger

function. If this trigger fired more than one shot per

activation, a person would more naturally refer to that

result as a “malfunction” of the trigger than a

“function” of it. Cf. United States v. Olofson, 563 F.3d

652, 658–59 (7th Cir. 2009).

Further, the discharge of more than one shot “by a

single function of the trigger” does not alone make a

firearm a “machinegun.” The firearm must also do so

“automatically.” That is, it must operate “in a manner

essentially independent of external influence or

control,” American Heritage, supra, at 90, or in a

“self-acting or self-regulating” manner, Webster’s

Ninth, supra, at 118. What type of weapon might shoot

multiple shots “by a single function of the trigger” but

not do so “automatically”? The Bump-Stock Rule gave

an example. A certain pump-action shotgun fires

41a

multiple shots with one trigger depression if the

shooter pumps the shotgun with the non-trigger hand

to load and shoot additional shells. 83 Fed. Reg. at

66,534. Although this shotgun shoots more than one

shot per trigger function, it does not do so

“automatically” because the shooter must manually

pump it. Id. This logic also disqualifies rifles equipped

with bump stocks. They will fire only one shot if a

shooter presses the trigger and uses no “external

influence” with the non-trigger hand. American

Heritage, supra, at 90; Aposhian v. Wilkinson, 989

F.3d 890, 896 (10th Cir. 2021) (en banc) (Tymkovich,

C.J., dissenting). To fire additional shots, a shooter

must exert manual force so that the trigger repeatedly

pushes into the trigger finger. Vasquez Decl., R.7,

PageID 146.

Lastly, this interpretation fits the context. The

statutory text defines the word “machinegun.” See

Johnson v. United States, 559 U.S. 133, 140 (2010);

Solid Waste Agency of N. Cook Cnty. v. Army Corps of

Eng’rs (SWANCC), 531 U.S. 159, 171–72 (2001). And

this interpretation matches how an “appropriately

informed” user of the English language would

distinguish a “machinegun” from an ordinary rifle. See

Van Buren v. United States, 141 S. Ct. 1648, 1657

(2021) (citation omitted). A “machine gun” is typically

viewed as “an automatic gun[.]” Webster’s Ninth,

supra, at 713; Webster’s Second, supra, at 1474. And

the difference between an “automatic” and a

“semiautomatic” weapon has long turned on a

mechanical feature of its trigger. If the gun

automatically reloads and refires with one trigger

activation, it is a machine gun. If it automatically

42a

reloads the next cartridge but requires “another

pressure of the trigger for each successive shot,” it is a

semiautomatic gun. Webster’s Ninth, supra, at 1069;

see also id. at 118; Webster’s Second, supra, at 187,

2274. Because a bump-stock rifle’s trigger must be

reengaged for each shot, it is not a machine gun under

the ordinary understanding of that term. See Guedes

v. Bureau of Alcohol, Tobacco, Firearms and

Explosives, 920 F.3d 1, 44–45 (D.C. Cir. 2019) (per

curiam) (Henderson, J., concurring in part and

dissenting in part).

*

The ATF’s contrary view commits two errors. It

rewrites the phrase “by a single function of the

trigger.” And it interprets the adverb “automatically”

out of context.

By a Single Function of the Trigger. Although the

ATF does not dispute that a bump-stock rifle’s trigger

must be released and reengaged for each shot, it says

that the rifle shoots multiple shots “by a single

function of the trigger.” Its logic for this headscratching result starts by rewriting “single function of

the trigger” to mean “single pull of the trigger.” BumpStock Rule, 83 Fed. Reg. at 66,518. From there, it says

that a shooter need only “pull” the trigger once because

additional shots result from the trigger pushing

against the stationary trigger finger. Id. at 66,519.

This reading conflicts with basic interpretive

principles. To rewrite “function” to mean “pull,” the

ATF cites a Supreme Court footnote and a snippet of

43a

legislative history. See id. at 66,518. It should have

started with the word’s ordinary meaning. See Encino

Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1140

(2018). Nobody would define “function” as “pull.” A

thing’s “function” is the “action” it “is specially fitted”

to perform. Webster’s Ninth, supra, at 498. The ATF’s

use of the word “pull” wrongly changes the focus from

the firearm’s mechanical perspective (how does the

firearm work?) to the shooter’s operational perspective

(how does a shooter shoot the gun?). Gun Owners, 992

F.3d at 470–71. Although a shooter may “pull” a

trigger, it is unnatural to say that the shooter

“functions” the trigger. But it is perfectly natural to

say that the semiautomatic trigger properly

“functions” if it shoots one shot per activation.

The ATF’s sources do not help it. In Staples v.

United States, 511 U.S. 600 (1994), the Court

distinguished automatic and semiautomatic weapons

in a footnote discussing background facts. Id. at 602

n.1. The decision otherwise addressed an issue not

relevant here: whether the crime of possessing an

unregistered machine gun has a mens rea element. Id.

at 604–20. This footnote described an automatic

weapon as one that “fires repeatedly with a single pull

of the trigger,” noting that “once its trigger is

depressed, the weapon will automatically continue to

fire until its trigger is released or the ammunition is

exhausted.” Id. at 602 n.1. Yet Staples did not offer a

conclusive reading of the “machinegun” definition; it

“merely ‘offer[ed] commonsense explanations’” to

distinguish the weapons. Olofson, 563 F.3d at 658

(citation omitted). In Olofson, the government itself

took this view of Staples. There, the defendant read

44a

Staples as if it were a statute. He argued that his rifle

shot only three rounds per trigger pull and so was not

a machine gun because it did not keep shooting until

the trigger was released or the ammunition exhausted.

Id. at 658–59. When rejecting this argument, the

Seventh Circuit refused to replace the statute with the

footnote. Id. at 659. I would do the same.

The ATF next turns to legislative history. The

President of the National Rifle Association noted that

a firearm “which is capable of firing more than one

shot by a single pull of the trigger, a single function of

the trigger, is properly regarded, in my opinion, as a

machine gun.” National Firearms Act: Hearings on

H.R. 9066 Before the H. Comm. on Ways & Means,

H.R. 9066, 73rd Cong. 40 (1934). “But legislative

history is not the law.” Epic Sys. Corp. v. Lewis, 138 S.

Ct. 1612, 1631 (2018). And the law uses the word

“function.”

Congress had good reason for this word choice.

Even the ATF cannot stick with its own “pull” test. It

recognizes that this word might exclude from the

“machinegun” definition weapons that repeatedly

shoot with one push of a button. Bump-Stock Rule, 83

Fed. Reg. at 66,534. So the ATF expands its

interpretation of “function of the trigger” to cover not

just a “pull” but also “analogous motions.” Id. This

change should disqualify rifles fitted with bump

stocks. The shooter’s act of pushing the trigger into the

trigger finger is an “analogous motion” for each shot of

such a rifle. The rifle thus does not shoot multiple

shots by a shooter’s single “pull” of or other “motion”

on the trigger.

45a

Automatically. The ATF agrees that “automatically”

means operating “as the result of a self-acting or selfregulating mechanism[.]” 83 Fed. Reg. at 66,519. And,

as the ATF recognized for a decade, shooters must use

manual force with the non-trigger hand to reengage

the trigger between each shot of a bump-stock rifle.

See id. at 66,532. But the ATF now says that this rifle

acts “automatically” because its bump stock

mechanically channels the recoil energy, so shooters

need not “manually capture and direct recoil energy”

themselves. Id.

This view reads the word “automatically” in

isolation, not in context. See Johnson, 559 U.S. at

139–40. “Automatically” does not modify the phrase

“capture the recoil energy”; it modifies the phrase

“shoots” “by a single function of the trigger.” Just

because one part of a rifle’s operation is “automatic”

does not mean that it automatically shoots by a single

function of its trigger. Even semiautomatic rifles have

some “automatic” features (hence their name). They

use the “force of recoil and mechanical spring action to

eject the empty cartridge case after the first shot and

load the next cartridge” without human action.

Webster’s Ninth, supra, at 1069. But they do not shoot

multiple shots “automatically” “by a single function of

the trigger” because a shooter must use manual force

to reengage the trigger for each shot. The same is true

of bump-stock rifles.

The ATF’s reading also leaves the statute entirely

unclear concerning the amount of human involvement

necessary to distinguish a “machinegun” from an

ordinary firearm. I would read the statute to set a rule:

46a

a gun shoots automatically by a single function of the

trigger as long as the shooter need only manually

cause the trigger to engage in a “single” function in

order to fire multiple shots. See Guedes, 920 F.3d at

46–47 (Henderson, J., concurring in part and

dissenting in part); Aposhian, 989 F.3d at 896

(Tymkovich, C.J., dissenting). So a typical machine

gun qualifies even though the shooter pulls the trigger

and keeps it pressed down because that combined

external influence still does no more than result in one

action of the trigger. I am, by contrast, at a loss over

the amount of human influence that disqualifies a

weapon as a machine gun under the ATF’s view that

“function” really means “pull.” All agree that the

shooter must exert “external influence” in addition to

a single pull of the trigger. American Heritage, supra,

at 90. So why does the bump-stock rifle shoot more

automatically than the pump-action shotgun that also

requires further human input? And why does the

manual capturing of recoil energy render ordinary

bump firing nonautomatic? The answers to these

questions cannot be found in the amorphous law that

the ATF has attempted to draft.

The ATF lastly claims that my reading conflicts

with caselaw addressing a redesigned semiautomatic

rifle that allows a shooter to press a switch to keep the

rifle firing until the release of the switch. ATF Supp.

Br. 11–12 (citing United States v. Camp, 343 F.3d 743

(5th Cir. 2003)). But this caselaw holds only that a

traditional rifle trigger need not be the “trigger” under

§ 5845(b) and that the switch can qualify as this rifle’s

trigger. Camp, 343 F.3d at 745. Here, the ATF agrees

there is just one trigger—the traditional one. A

47a

conclusion that bump stocks do not turn ordinary

semiautomatic rifles into machine guns says nothing

about whether these other devices qualify.

In sum, a shooter manually reengages the trigger of

a bump-stock rifle after each shot, so the rifle does not

“automatically” shoot more than one shot “by a single

function of the trigger.”

II

The circuit courts that have upheld the Bump-Stock

Rule have not suggested that the ATF’s contrary view

“is the better reading of the statute.” Guedes, 920 F.3d

at 30. Indeed, they have not even felt the need to ask

which is the better reading. Id. They have instead held

that they must review the ATF’s reading under

Chevron’s “two-step” approach. Id. at 17–28; Aposhian

v. Barr, 958 F.3d 969, 979–84 (10th Cir. 2020). At step

one, these courts find that “automatically” and “single

function of the trigger” are sufficiently ambiguous to

require courts to defer to the ATF’s reading. Aposhian,

958 F.3d at 988–89; Guedes, 920 F.3d at 29–31. At step

two, they hold that the ATF’s reading is “permissible.”

Aposhian, 958 F.3d at 984–88; Guedes, 920 F.3d at

31–32.

I find three problems with this approach. First, the

courts justify their use of Chevron with irrelevant

cases that interpret statutes expressly delegating

power to an agency to enact criminal regulations.

Second, the courts wrongly expand Chevron’s domain

by holding that Congress impliedly delegated to the

Attorney General the power to interpret a criminal law

48a

merely because it gave him a general authority to

enact regulations. Third, even under Chevron’s regime,

the courts improperly find ambiguity without

attempting to figure out the statute’s meaning.

A. The circuit courts wrongly allow a federal

agency to create a regulatory crime without an

express delegation of criminal policymaking

power from Congress.

The circuit courts that uphold the Bump-Stock Rule

justify their reliance on “Chevron deference” by citing

cases that permit Congress to expressly delegate to an

agency the power to create a regulatory standard

backed by criminal penalties. Guedes, 920 F.3d at 24,

28 (citing United States v. O’Hagan, 521 U.S. 642

(1997); Touby v. United States, 500 U.S. 160 (1991)).

Yet the deference that I view as “Chevron deference”

traditionally arises when an agency claims that

Congress has impliedly delegated to the agency the

power to interpret the law. The use of this expressdelegation caselaw in this case’s implied-delegation

context sets a hazardous precedent.

When Congress regulates private parties, it

sometimes expressly gives a federal agency a

policymaking power to adopt the governing standard

of conduct. As one example, Congress told the Attorney

General that he may add to the list of “controlled

substances” that cannot be sold. 21 U.S.C. § 811;

Touby, 500 U.S. at 162–64. As another, Congress told

the SEC to define the “acts” that are “fraudulent”

during a tender offer. 15 U.S.C. § 78n(e); O’Hagan, 521

U.S. at 667.

49a

A party can challenge these express delegations in

various ways. See United States v. Mead Corp., 533

U.S. 218, 227 & n.6 (2001). Most notably, Congress

may not give away its legislative power, so these

policy-laden regulations raise separation-of-powers

concerns. Touby, 500 U.S. at 165. For better or worse,

however, the Supreme Court has rebuffed challenges

to these rules under the nondelegation doctrine, even

when Congress has made it a crime to violate them.

See id. at 165–68; United States v. Grimaud, 220 U.S.

506, 518–22 (1911); cf. Gundy v. United States, 139 S.

Ct. 2116, 2133–48 (2019) (Gorsuch, J., dissenting).

Apart from a nondelegation challenge, a party might

also argue that the agency’s policy choice violates the

Administrative Procedure Act because it is

procedurally arbitrary or substantively contrary to

Congress’s instructions about the policies that the

agency should adopt. See O’Hagan, 521 U.S. at 673; 5

U.S.C. § 706(2).

Critically, though, a party may not challenge this

type of regulation on the ground that Congress did not

give the agency the power to adopt it in the first place.

Of course it did. Its express delegation leaves this

statutory-interpretation question with an

unambiguous answer. But that express delegation does

not trigger “Chevron deference.” Cf. Cuozzo Speed

Techs., LLC v. Lee, 136 S. Ct. 2131, 2148 (2016)

(Thomas, J., concurring). Well before Chevron, the

Supreme Court noted that it should defer to a

regulation with “legislative effect” when Congress

expressly delegated policymaking authority to the

agency. Batterton v. Francis, 432 U.S. 416, 425 (1977);

Thomas W. Merrill & Kristin E. Hickman, Chevron’s

50a

Domain, 89 Geo. L.J. 833, 833 n.2 (2001) (collecting

cases). “Chevron deference” instead comes into play

when a statute lacks an express delegation. Chevron

held that a statutory ambiguity can represent

Congress’s “implicit” delegation to an agency to resolve

the ambiguity. 467 U.S. at 844; King v. Burwell, 576

U.S. 473, 485 (2015). And it distinguished laws with

these implicit delegations from those that “explicitly

left a gap for the agency to fill[.]” 467 U.S. at 843–44 &

844 n.12; see Mead, 533 U.S. at 229.

These express-delegation cases thus are irrelevant

to whether the Gun Control Act and the National

Firearms Act contain implied delegations to the

Attorney General. (The Acts identify the Attorney

General as the enforcing official, and he has

designated the ATF to act on his behalf. 28 C.F.R.

§ 0.130(a)(1)–(2).) Unlike in O’Hagan (in which

Congress gave the SEC the power to define

“fraudulent” acts), these Acts do not expressly give the

Attorney General the power to define “machinegun.”

And unlike in Touby (in which Congress gave the

Attorney General the ability to add to the list of

“controlled substances”), the Acts do not expressly give

the Attorney General the ability to add to a list of

“machineguns.” Congress instead defined

“machinegun” itself.

*

If anything, the use of this express-delegation

precedent in Chevron’s implied-delegation context

marks a sharp break from past practice. The cases

allowing agencies to create criminal regulations come

with an important safeguard: Congress itself must

51a

“make[] the violation of regulations a criminal offense

and fix[] the punishment[.]” Loving v. United States,

517 U.S. 748, 768 (1996). So when a statute left

unclear whether Congress gave an agency the power to

create regulatory crimes, the Supreme Court refused

to interpret the statute as granting this power. See

United States v. Eaton, 144 U.S. 677, 687–88 (1892).

Congress must act “distinctly”—i.e., clearly—if it

wants to allow agencies to enact criminal rules with

the force of law. Id. at 688; Grimaud, 220 U.S. at 519.

This clear-statement rule established a presumption

against “which Congress legislates” well before

Chevron. Singer v. United States, 323 U.S. 338, 350–51

(1945) (Frankfurter, J., dissenting); Thomas W. Merrill

& Kathryn Tongue Watts, Agency Rules with the Force

of Law: The Original Convention, 116 Harv. L. Rev.

467, 499–502 (2002). The statute in O’Hagan, for

example, expressly made it a crime to violate “any

provision of this chapter” or “any rule or regulation

thereunder the violation of which is made unlawful or

the observance of which is required under the terms of

this chapter[.]” 15 U.S.C. § 78ff(a); O’Hagan, 521 U.S.

at 677 n.23.

The clear-statement rule is “not a judicial sport.”

Singer, 323 U.S. at 350 (Frankfurter, J., dissenting). It

reinforces a fundamental separation-of-powers

principle. Carter v. Welles-Bowen Realty, Inc., 736 F.3d

722, 733 (6th Cir. 2013) (Sutton, J., concurring). The

Constitution allows only Congress to create crimes. See

United States v. George, 228 U.S. 14, 22 (1913). The

Supreme Court cannot create common-law crimes,

Hudson, 11 U.S. at 34, and the President cannot create

administrative crimes, George, 228 U.S. at 22. This

52a

principle promotes liberty by barring the government

from forcing Americans to change their behavior on

threat of imprisonment unless their representatives

pass a bill that survives the arduous journey through

both Houses of Congress and their President signs this

bill into law. See Bond v. United States, 564 U.S. 211,

222 (2011).

The circuit courts that use the express-delegation

precedent to invoke Chevron flout this clear-statement

rule and the separation-of-powers principle that it

protects. The Bump-Stock Rule creates a new

regulatory crime that bars the possession of bump

stocks. Yet it does so allegedly pursuant to only an

implied (not a distinct) congressional delegation of

power.

The courts all agree that the Bump-Stock Rule

purports to be a legislative rule that creates a new

crime with the “force and effect of law”; it does not

claim to be an interpretive rule that merely construes

the “machinegun” ban in 18 U.S.C. § 922(o)(1). See,

e.g., Guedes, 920 F.3d at 18 (citation omitted). The

crime’s effective date shows as much. For a decade

before the Bump-Stock Rule, the ATF issued advisory

letters indicating that the bump stocks at issue here

are not machine guns. Bump-Stock Rule, 83 Fed. Reg.

at 66,516. Its position nurtured the creation of an

entire bump-stock industry, complete with

manufacturers, retailers, and consumers. Id. at

66,545–48. By the time of the Bump-Stock Rule,

consumers had bought some $100 million worth of

bump stocks. Id. at 66,515. If this rule merely

interpreted § 922(o)(1)’s “machinegun” ban, the people

53a

who owned bump stocks during this time would all

along have been committing felonies (on the ATF’s

advice). See 18 U.S.C. § 924(a)(2). Yet the ATF did not

seek to throw these bump-stock owners into prison.

The Bump-Stock Rule instead purports to criminalize

behavior that was previously lawful: “Anyone currently

in possession of a bump-stock-type device is not acting

unlawfully unless they fail to relinquish or destroy

their device after the effective date of this regulation.”

83 Fed. Reg. at 66,523; see also id. at 66,525, 66,530.

To enact this new regulatory crime, the ATF (the

Attorney General’s designee) must identify a statutory

provision “distinctly” empowering the Attorney

General to do so. Eaton, 144 U.S. at 688. But the ATF

points to no such provision. That is why the circuit

courts must rely on Chevron. Chevron deference

applies when Congress “implicitly” delegates to an

agency the power to interpret a statute. 467 U.S. at

843–44. But an implicit delegation is not a distinct

one. Carter, 736 F.3d at 733 (Sutton, J., concurring).

Under traditional principles, then, the ATF lacks the

power to make criminal what was lawful. And reliance

on Chevron throws overboard what has long been a

critical check on an agency’s ability to enact criminal

rules: Such rules “must have clear legislative basis.”

George, 228 U.S. at 22; cf. Whitman v. United States,

574 U.S. 1003, 1004 (2014) (Scalia, J., respecting the

denial of certiorari). The Bump-Stock Rule does not.

To be sure, Congress gave the Attorney General the

general power to issue “such rules and regulations as

are necessary to carry out the provisions” of the Gun

Control Act. 18 U.S.C. § 926(a). And it gave the

54a

Attorney General the general power to “prescribe all

needful rules and regulations for the enforcement of”

the National Firearms Act. 26 U.S.C. §§ 7805(a),

7801(a)(2)(A)(i). But these grants of general

rulemaking power (which exist in most statutes) are

not express delegations of power to adopt substantive

criminal rules like those in O’Hagan and Touby. To the

contrary, a grant of general rulemaking authority can

show only Congress’s implied delegation to an agency

to resolve ambiguities under Chevron. See Mayo

Found. for Med. Educ. & Rsch. v. United States, 562

U.S. 44, 57 (2011). The law in Chevron itself allowed

the EPA administrator to “prescribe such regulations

as are necessary to carry out his functions under this

chapter.” 42 U.S.C. § 7601(a)(1). An assertion that the

Attorney General’s general rulemaking power also

qualified as an express delegation to establish

regulatory crimes with the force of law would swallow

Chevron’s distinction between express and implied

delegations. See 467 U.S. at 843–44. Because these

grants of rulemaking power do not “distinctly” show

Congress’s intent to allow the Attorney General to

create a new crime (as the Bump-Stock Rule purports

to do), they do not satisfy the clear-statement rule.

Eaton, 144 U.S. at 688; cf. George, 228 U.S. at 20–21,

20 n.†.

Further, no other provision gives the Attorney

General the power to issue a criminal rule

implementing the Gun Control Act’s “machinegun”

ban, 18 U.S.C. § 922(o)(1), or the “machinegun”

definition that it incorporates from the National

Firearms Act, id. § 921(a)(23); 26 U.S.C. § 5845(b).

This omission is telling. When the Gun Control Act

55a

permits the Attorney General to enact rules backed by

criminal sanctions, it says so expressly. Section 923,

for example, requires licensed firearms distributors to

keep such records “as the Attorney General may by

regulations prescribe” and makes it a misdemeanor for

licensees to violate its recordkeeping provisions “or the

regulations promulgated thereunder.” 18 U.S.C.

§§ 922(m), 924(a)(3)(B). Yet the Act otherwise

“contains no power authorizing [the Attorney General]

to promulgate criminal regulations,” such as

regulations implementing § 922(o)(1)’s “machinegun”

ban. Stephen P. Halbrook, Firearms Law Deskbook

§ 4:6, Westlaw (database updated Oct. 2021). Likewise,

the National Firearms Act authorizes the Attorney

General to issue regulations about, for example,

licensing or registration requirements. 26 U.S.C.

§§ 5812(a), 5822, 5841(c), 5842–44; see also id.

§§ 5851(b), 5852(f), 5853(c), 5854. The Act also makes

a violation of its own “provisions” a crime. Id. §§ 5861,

5871. But nothing in it allows the Attorney General to

issue a legislative rule that changes the scope of its

“machinegun” definition. Under normal interpretive

principles, we should view the express inclusions and

omissions of regulatory authority as intentional

legislative choices. See Gonzales v. Oregon, 546 U.S.

243, 262–63 (2006); Russello v. United States, 464 U.S.

16, 23 (1983); Merrill & Watts, supra, at 471–72, 487.

One last point. For those persuaded by such things,

the Gun Control Act’s original drafters discarded a

provision that would have given the Attorney General

the power to adopt legislative rules backed by criminal

sanctions. One version of the Act would have broadly

attached criminal penalties to a violation of any rule or

56a

regulation promulgated under the Act. See S. 917, 90th

Cong. § 924(a) (as reported by Senator McClellan, Apr.

29, 1968). But Senator Griffin of Michigan led the

charge in opposition to this language, explaining that

“if there is one area in which we should not delegate

our legislative power, it is in the area of criminal law.”

114 Cong. Rec. 14,792 (1968). Senator Baker of

Tennessee also explained how problematic it would be

to allow a future administration to “change or alter a

rule or a regulation” that is criminal “and thus place in

the hands of an executive branch administrative

official the authority to fashion and shape a criminal

offense to his own personal liking[.]” Id. These

senators successfully persuaded Congress to omit this

“rules or regulations” catchall from what is today the

penalty section in 18 U.S.C. § 924(a). See id. at 14,793.

We disrespect its choice if we uphold a regulation like

the Bump-Stock Rule that purports to create a new

regulatory felony that did not exist before.

B. The circuit courts wrongly find in a generic

grant of rulemaking authority an implied

delegation permitting an agency to

authoritatively interpret criminal laws.

Apart from their disregard of the clear-statement

rule that predates Chevron, the circuit courts that

uphold the Bump-Stock Rule wrongly rely on

Chevron’s implied-delegation presumption even on

that case’s own terms. They apply its presumption

solely because (1) the Attorney General has general

rulemaking power under the Gun Control Act and the

National Firearms Act, 18 U.S.C. § 926(a); 26 U.S.C. §

7805(a), and (2) the ATF (the Attorney General’s

57a

designee) issued the Bump-Stock Rule under that

power. See Aposhian, 958 F.3d at 979–81. I disagree.

While a generic rulemaking provision might

sometimes show an implied delegation that allows an

agency to resolve a statutory ambiguity through a

regulation, Mayo, 562 U.S. at 57, such a provision does

not always do so. And it falls well short of showing an

implied delegation here.

Start with some background. Before Chevron, the

Supreme Court applied a totality-of-the-circumstances

test “on a statute-by-statute basis” to decide whether

a statute impliedly delegated power to an agency to

interpret an ambiguous provision. Antonin Scalia,

Judicial Deference to Administrative Interpretations of

Law, 1989 Duke L.J. 511, 516; Stephen Breyer,

Judicial Review of Questions of Law and Policy, 38

Admin. L. Rev. 363, 365–72 (1986). Chevron might

have been read to dramatically depart from this

approach. Some viewed it as creating a broad rule that

Congress impliedly delegated to agencies the power to

resolve all ambiguous provisions across all statutes.

Scalia, supra, at 516; cf. City of Arlington v. FCC, 569

U.S. 290, 296 (2013).

Yet the Court has not adopted that absolutist view.

Rather, before proceeding through Chevron’s two-step

test, it has repeatedly conducted a threshold inquiry

(what some have labeled Chevron “step zero”) that

requires us to ask whether the specific statute at issue

leaves the specific interpretive question for the agency

or the courts to resolve. Merrill & Hickman, supra, at

836, 873–89. As the Court has noted, “different

statutes present different reasons for considering

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respect for the exercise of administrative authority or

deference to it.” Mead, 533 U.S. at 238. The Court thus

will reject Chevron deference when a law is best read

not to give the agency the power to resolve a particular

question of statutory interpretation. That is true even

if (as in this case) the agency issued a regulation

answering that question pursuant to its general

rulemaking authority.

Two examples prove my point. The Court has

rejected Chevron’s implied-delegation presumption for

“major questions” about a statute. See King, 576 U.S.

at 485–86; FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 159–60 (2000). “In extraordinary cases”

involving important questions, it has noted, “there

may be reason to hesitate before concluding that

Congress has intended such an implicit delegation.”

Brown & Williamson, 529 U.S. at 159 (citing Breyer,

supra, at 370). Take King. It addressed whether the

Affordable Care Act allowed individuals who bought

health insurance on federal exchanges to obtain tax

subsidies. 576 U.S. at 479. The agency issued a

regulation answering this question under a grant of

rulemaking authority. Id. at 483. Yet the Court

refused to give Chevron deference to this regulation.

Id. at 485–86. The Court reasoned that the question

was of “deep ‘economic and political significance,’” so it

presumed that Congress would not have impliedly

given the agency the power to resolve it. Id. at 486

(citation omitted).

The Court has also rejected Chevron deference for

statutory issues that have traditionally fallen within

the courts’ interpretive domain. See Adams Fruit Co.

59a

v. Barrett, 494 U.S. 638, 649 (1990); see also Smith v.

Berryhill, 139 S. Ct. 1765, 1778–79 (2019); Epic, 138 S.

Ct. at 1629. Take Adams Fruit. There, the agency

issued a regulation under its rulemaking authority

that narrowly interpreted a cause of action allowing

private parties to sue. 494 U.S. at 649. The Court held

that Chevron deference did not apply to this

interpretation because “the scope of the judicial power

vested by the statute” was for the courts, not the

agency, to decide. Id. at 650.

Identical logic extends to the criminal laws, so

these decisions make this case easy at Chevron’s

threshold step. The Gun Control Act bans

“machineguns” and imposes a potential 10-year prison

sentence for violations. 18 U.S.C. §§ 922(o)(1),

924(a)(2). I would not interpret Congress’s grant of

rulemaking authority in the Gun Control Act (18

U.S.C. § 926(a)) or the National Firearms Act (26

U.S.C. § 7805(a)) as impliedly delegating to the

Attorney General the “extraordinary authority” to

invent new gun crimes. Gonzales, 546 U.S. at 262.

Even more so than the cause of action in Adams Fruit,

“criminal laws are for courts, not for the Government,

to construe.” Abramski v. United States, 573 U.S. 169,

191 (2014). Whatever the merits of Chevron’s implieddelegation presumption in the civil context, even a

Chevron proponent calls it “preposterous” “to say that

when criminal statutes are ambiguous, the

Department of Justice is permitted to construe them

as it sees fit[.]” Cass R. Sunstein, Chevron Step Zero,

92 Va. L. Rev. 187, 210 (2006). Two of our foundational

principles—the separation of powers and due

process—should lead us to adopt the opposite

60a

presumption. Congress does not impliedly delegate to

the Attorney General our duty to interpret the

criminal laws. See Gun Owners, 992 F.3d at 464–68.

As an initial matter, a presumption that Congress

impliedly gave the Attorney General the power to

interpret the criminal laws would further undercut our

separation of powers. The Constitution ensures that

the government cannot imprison a person without a

consensus from all three branches. See Gun Owners,

992 F.3d at 464; Caleb Nelson, Adjudication in the

Political Branches, 107 Colum. L. Rev. 559, 561 (2007).

Congress must enact a criminal law, the Attorney

General must initiate a prosecution, and a court must

adjudicate the case. The clear-statement rule that I

have already discussed ensures that the Attorney

General does not usurp Congress’s role in this

process—to enact criminal bans. George, 228 U.S. at

22. We should likewise adhere to canons of

interpretation that ensure that the Attorney General

does not usurp the judiciary’s role—to say what the

criminal laws mean. Marbury v. Madison, 5 U.S. 137,

177 (1803). Yet Chevron’s presumption that agencies

get to construe ambiguous laws would allow the

Attorney General to do just that by combining the

prosecutorial and adjudicative powers. See Sunstein,

supra, at 210.

Admittedly, it is our duty to say what civil laws

mean too. But there would be nothing unusual about

refusing to extend Chevron’s civil presumption to this

criminal setting. Criminal laws have the most serious

repercussions for individuals, potentially depriving

them of their liberty or lives. See United States v. Bass,

61a

404 U.S. 336, 348 (1971). So our legal traditions

include many safeguards unique to that context. To

name two, prosecutors must prove their case beyond a

reasonable doubt (rather than by a preponderance of

the evidence), see In re Winship, 397 U.S. 358, 361–64

(1970), and they cannot force defendants to testify

when their testimony might subject them to criminal

(as opposed to civil) liability, see United States v.

Balsys, 524 U.S. 666, 671–72 (1998). Notably,

therefore, the Supreme Court has not incorporated

other civil principles that are in tension with the

separation of powers into the criminal domain.

Although agencies may engage in fact-finding in some

civil proceedings subject to deferential judicial review,

Atlas Roofing Co. v. Occupational Safety & Health Rev.

Comm’n, 430 U.S. 442, 455 & n.13 (1977), this agency

fact-finding power falls away in “criminal matters,” N.

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458

U.S. 50, 70 n.24 (1982) (plurality opinion); Nelson,

supra, at 610. The same logic should apply here.

Chevron sometimes allows agencies to interpret

ambiguities in civil statutes subject to deferential

judicial review. See City of Arlington, 569 U.S. at 296.

Yet an agency’s law-interpreting power should

likewise fall away in criminal matters. See EsquivelQuintana v. Lynch, 810 F.3d 1019, 1030 (6th Cir. 2016)

(Sutton, J., concurring in part and dissenting in part),

rev’d sub nom. Esquivel-Quintana v. Sessions, 137 S.

Ct. 1562 (2017).

In addition, Chevron’s presumption that Congress

impliedly gave the Attorney General the power to

interpret the criminal laws conflicts with a preexisting

due-process presumption that has long affected the

62a

courts’ interpretation of those laws. See United States

v. Davis, 139 S. Ct. 2319, 2325 (2019). Courts presume

that Congress means for criminal laws to give ordinary

people “fair warning” of the conduct that the laws

proscribe. McBoyle v. United States, 283 U.S. 25, 27

(1931). When faced with the task of choosing between

two plausible “readings of what conduct Congress has

made a crime,” then, a court will reject the “harsher

alternative” in favor of the more lenient one. Jones v.

United States, 529 U.S. 848, 858 (2000) (quoting

United States v. Universal C.I.T. Credit Corp., 344

U.S. 218, 221–22 (1952)). Unlike Chevron, this rule of

lenity “is perhaps not much less old than construction

itself.” United States v. Wiltberger, 18 U.S. 76, 95

(1820). The rule allows parties to organize their affairs

confident that they can rely on the existing law until

their elected representatives change it through the

legislative process. See Bass, 404 U.S. at 348.

Chevron’s implied-delegation presumption (which

dates to 1984) conflicts with this fair-notice

presumption (which dates to the Founding). For one

thing, it would require us to presume that Congress

meant to give the Attorney General the power to

expand the scope of an ambiguous criminal law by

adopting the “harsher alternative” without the “clear

and definite” statement that we usually expect. Jones,

529 U.S. at 858 (citation omitted). It thus “would turn

the normal construction of criminal statutes upsidedown, replacing the doctrine of lenity with a doctrine

of severity.” Crandon v. United States, 494 U.S. 152,

178 (1990) (Scalia, J., concurring in the judgment). For

another, it would allow an agency to depart from its

longstanding interpretation of a criminal law merely

63a

for policy reasons associated with a change in

presidential administrations and merely by going

through the notice-and-comment process. See Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 981–82 (2005). Such a policy-laden

expansion of the scope of prohibited conduct has no

place in this criminal sphere. “[A] criminal conviction

ought not to rest upon an interpretation reached by

the use of policy judgments rather than by the

inexorable command of relevant language.” M. Kraus

& Bros., Inc. v. United States, 327 U.S. 614, 626

(1946).

Lastly, imagine what it would mean if, as the D.C.

Circuit found, the Attorney General’s general

rulemaking authority in 18 U.S.C. § 926(a) allows him

to issue authoritative interpretations of the many

crimes in § 922. See Guedes, 920 F.3d at 26. The

Supreme Court recently interpreted the statute

banning the possession of firearms by felons to require

defendants to know that they are, in fact, felons. See

Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019);

18 U.S.C. §§ 922(g), 924(a)(2). Suppose that the

Attorney General later issues a regulation readopting

the view long held by all of the circuit courts that the

statute lacked this intent element. Rehaif, 139 S. Ct.

at 2201 (Alito, J., dissenting). If Rehaif is best read as

endorsing one side of a debate about an ambiguous

statute, would the Court have to defer to the Attorney

General’s regulation and return the criminal law back

to a world without this mens rea? See Brand X, 545

U.S. at 982–83; cf. United States v. Home Concrete &

Supply, LLC, 566 U.S. 478, 487–90 (2012) (plurality

opinion).

64a

Courts have also struggled to interpret the Armed

Career Criminal Act, which imposes an enhanced

sentence on those who illegally possess firearms and

have three prior “violent felony” convictions. 18 U.S.C.

§ 924(e); see, e.g., Borden v. United States, 141 S. Ct.

1817, 1821 (2021) (plurality opinion). Perhaps this was

all just wasted effort. If § 926(a) gives the Attorney

General the power to issue a binding regulation listing

every offense that qualifies as a “violent felony,” must

courts defer to the Attorney General’s view? I doubt

any judge would take these claims seriously. But they

are no different from the claim that Chevron applies in

this case simply because § 926(a) gives the Attorney

General general rulemaking authority.

In sum, the generic grants of rulemaking power on

which other circuit courts have relied do not provide

the “clear indication” that courts should demand before

construing a criminal law to delegate our interpretive

authority to the Attorney General. SWANCC, 531 U.S.

at 172.

*

The circuit courts that take the opposite view

suggest that Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687 (1995),

supports their conclusion that a grant of general

rulemaking authority can trigger Chevron deference

for criminal laws. See Aposhian, 958 F.3d at 982–83;

Guedes, 920 F.3d at 24. Babbitt addressed provisions

of the Endangered Species Act that made it unlawful

for a party to “take” an endangered species and

imposed criminal and civil penalties for violations of

65a

this ban. 515 U.S. at 690–91, 696 n.9 (quoting 16

U.S.C. §§ 1538(a)(1)(B), 1540(a)(1), 1540(b)(1)). The

statute itself defined the word “take” to include

“harm,” and the Secretary of the Interior issued a

regulation broadly interpreting the word “harm.” Id. at

691. When rejecting the claim that this regulation

misread the statute, the Court gave deference to the

Secretary’s reading despite its criminal applications.

Id. at 703–04, 704 n.18.

Yet Babbitt confirms that Chevron’s implieddelegation presumption does not apply here. While

Babbitt cited Chevron in passing, it did not “rest on

Chevron’s fiction that ambiguity in a statutory term is

best construed as an implicit delegation of power to an

administrative agency to determine the bounds of the

law.” Cuozzo, 136 S. Ct. at 2148 (Thomas, J.,

concurring). Rather, Babbitt is better read as an

express-delegation case. The Court noted that the

Secretary’s regulation was entitled to “some degree of

deference” not because the “take” definition was

ambiguous (and so subject to Chevron’s presumption),

but because of the “latitude” that the Act gave “the

Secretary in enforcing the statute[.]” Babbitt, 515 U.S.

at 703–04. As its support for this sentence, Babbitt

even cited an article by Justice Breyer criticizing an

implied-delegation presumption as “seriously

overbroad, counterproductive and sometimes

senseless.” Breyer, supra, at 373; Sunstein, supra, at

239–40. Notably, moreover, Secretary Babbitt’s

enforcement “latitude” consisted of far more authority

than the generic power to issue regulations. Most

relevantly, the Act authorized civil and criminal

penalties against those who violated “any regulation

66a

issued in order to implement” the “take” prohibition.

Compare 16 U.S.C. § 1540(f), with id. § 1540(a)(1) and

(b)(1). Congress thus expressly gave the Secretary the

power to issue regulations to “implement” that specific

ban and expressly made a violation of those

regulations a crime. Id. § 1540(b)(1). This

unambiguous delegation to enact criminal legislative

rules that implement the “take” provision cannot be

described as an “implicit” delegation. It would meet

even Eaton’s clear-statement rule.

In this case, by contrast, the Bump-Stock Rule

attempts to “rest on Chevron’s fiction” by suggesting

that Congress “implicitly left” to the Attorney General

the power to interpret the “machinegun” definition.

Cuozzo, 136 S. Ct. at 2148 (Thomas, J., concurring);

Bump-Stock Rule, 83 Fed. Reg. at 66,527. Unlike the

Endangered Species Act in Babbitt, however, the Gun

Control Act and the National Firearms Act do not

delegate to the Attorney General the specific power to

issue regulations to “implement” the “machinegun”

ban in 18 U.S.C. § 922(o)(1) or expressly make a

violation of those implementing regulations a crime.

That is why the courts that have upheld the BumpStock Rule rely only on the grants of general

rulemaking authority in those Acts. See Guedes, 920

F.3d at 20–21. But those grants are not express

delegations to pass criminal rules, and the

enforcement “latitude” that Babbitt found important is

absent here. 515 U.S. at 703–04.

I disagree with the other circuit courts’ competing

interpretation of Babbitt. These courts have read that

decision as instead holding that—while Chevron’s

67a

implied-delegation presumption does not apply for

pure criminal laws—it can apply when a law has “both

civil and criminal implications.” Aposhian, 958 F.3d at

982–83. This case shows that any distinction between

“pure” criminal laws and “hybrid” criminal-civil laws

is a mirage. If the Court reads Babbitt as triggering

Chevron’s presumption, it will reach nearly all

criminal laws.

To begin with, although the “take” regulation in the

Endangered Species Act has many civil applications,

see, e.g., 16 U.S.C. § 1540(g), the Bump-Stock Rule has

“predominately criminal” ones, Aposhian, 989 F.3d at

905 (Eid, J., dissenting). The Gun Control Act makes

it a crime to possess machine guns except those

transferred or possessed under the authority of a

government or those possessed before 1986. 18 U.S.C.

§ 922(o). No bump stocks existed in 1986, so the

grandfather provision does not apply. Bump-Stock

Rule, 83 Fed. Reg. at 66,535. And I doubt many

governments supply their agents with bump-stock

rifles. So if the Bump-Stock Rule’s potentially small

number of civil applications triggers Chevron’s

implied-delegation presumption, most criminal laws

will trigger it too. After all, “[s]ince the earliest years

of this Nation, Congress has authorized the

Government to seek parallel in rem civil forfeiture

actions and criminal prosecutions based upon the same

underlying events.” United States v. Ursery, 518 U.S.

267, 274 (1996). Today, many laws include civilforfeiture provisions that accompany their criminal

bans. The Gun Control Act, for example, authorizes

the Attorney General to seek forfeiture of weapons for

most violations of its prohibitions. See 18 U.S.C.

68a

§ 924(d)(1). Would this forfeiture provision trigger

Chevron’s presumption for, say, a regulation issued by

the Attorney General interpreting the prohibition on

possessing a firearm in furtherance of a “crime of

violence”? Id. § 924(c)(1)(A).

In addition, Babbitt emphasized that the “take”

regulation had “existed for two decades” largely

unchanged from near the time of the Act’s passage and

so had provided “a fair warning of its consequences.”

515 U.S. at 690, 691 n.2, 704 n.18. Giving some

deference to this regulation, id. at 703, comports with

the respect that courts have shown “longstanding and

contemporaneous executive interpretations of law[.]”

Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L.J. 908, 916 (2017)

(emphasis omitted). The same cannot be said for a

decision to apply Chevron’s presumption here because

the Bump-Stock Rule departed from the ATF’s decadelong view. 83 Fed. Reg. at 66,516. The Americans who

invested in the bump-stock industry in reliance on that

prior position might be skeptical of the claim that the

ATF offered them a “fair” warning. Babbitt, 515 U.S.

at 704 n.18; cf. EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 257–58 (1991). This case thus shows that if

Chevron extends to the criminal context, it would

extend in full. The Attorney General could change the

criminal laws for pure policy reasons. See Brand X,

545 U.S. at 981–82. Babbitt should not be read to

require these results.

C. The circuit courts do not attempt to construe

the statutory “machinegun” definition using

69a

traditional canons of construction

deferring to the ATF’s view.

before

Even if Chevron’s two-step test applied, the circuit

courts that have upheld the Bump-Stock Rule wrongly

find ambiguity in the “machinegun” definition at step

one without even attempting to interpret the statute

themselves. See Aposhian, 958 F.3d at 979–81; Guedes,

920 F.3d at 20–21. Chevron does not require such

judicial obsequiousness to a federal agency.

At Chevron step one, a court must ask whether the

relevant statutory text is “ambiguous with respect to

the specific issue” before the court. 467 U.S. at 843. If

the text conveys an “unambiguously expressed”

meaning, the court must apply it as written. Id.; see,

e.g., MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512

U.S. 218, 225–29 (1994). If the text conveys no

unambiguous answer, the court must proceed to

Chevron’s second step by asking whether the agency’s

reading reasonably resolves the ambiguity. 467 U.S. at

843; see, e.g., Brand X, 545 U.S. at 989–97. Like the

rule of lenity, however, Chevron “leaves open the

crucial question—almost invariably present—of how

much ambiguousness constitutes an ambiguity.”

United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir.

1985) (Scalia, J.).

Both the Supreme Court and our court have

explained how to answer this crucial ambiguity

question. A finding of ambiguity can occur only at the

end of our usual interpretive process. In other words,

a court must do its “best to determine the statute’s

meaning before giving up, finding ambiguity, and

70a

deferring to the agency.” Arangure v. Whitaker, 911

F.3d 333, 338 (6th Cir. 2018). When engaging in this

ordinary interpretive process, the court should employ

the “traditional tools of statutory construction” that it

would otherwise rely on when reviewing a statutory

provision without agency input. Epic, 138 S. Ct. at

1630 (quoting Chevron, 467 U.S. at 843 n.9); see Kisor

v. Wilkie, 139 S. Ct. 2400, 2415 (2019). So a court must

give the relevant words their ordinary meaning. See

MCI Telecomms., 512 U.S. at 225–28. If a word is

susceptible to more than one meaning, the court must

place it in its context and consider it within the

statutory structure as a whole. See Pereira v. Sessions,

138 S. Ct. 2105, 2113, 2114–15, 2117 (2018); EsquivelQuintana, 137 S. Ct. at 1570, 1572. Similarly, the

court must account for the many canons of

construction that routinely offer clues on the meaning

of an ambiguous text. Arangure, 911 F.3d at 339–40

(collecting cases). The Supreme Court, for instance,

has held that the canon of constitutional avoidance can

render an otherwise ambiguous statute unambiguous

for Chevron purposes. See SWANCC, 531 U.S. at

172–74; Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575–76

(1988).

After employing all of the traditional tools of

construction in this case, I would find that the

statutory “machinegun” definition unambiguously

excludes bump stocks for the reasons I identified at the

outset. The circuit courts that find this statutory

definition ambiguous, by contrast, violate two of the

Supreme Court’s interpretive principles at this stage

of Chevron.

71a

First, these circuit courts give the type of “reflexive

deference” to the ATF that the Supreme Court has

rejected when deciding whether a statute is

unambiguous under Chevron. Pereira, 138 S. Ct. at

2120 (Kennedy, J., concurring); cf. Kisor, 139 S. Ct. at

2415. These courts identify an ambiguity and defer to

the ATF based on an “interpretive puzzle” that they

identify but do not even attempt to solve. Epic, 138 S.

Ct. at 1630. Consider, for example, the reasons why

the D.C. Circuit found the phrase “single function of

the trigger” ambiguous. Guedes, 920 F.3d at 29–31.

The court suggested that this phrase “admits of more

than one interpretation” because it could refer to the

mechanical actions of the trigger or the human actions

of the shooter. Id. at 29. From there, however, the

court made little effort to discern which of the two

meanings best fits the context using any, much less

all, of our traditional tools of interpretation. Id. at

29–31; see Pereira, 138 S. Ct. at 2116–18. The court

thus did not ask whether one of the two possible

perspectives better comports with the way in which

the word “function” is normally used or with the

statutory definition as a whole (both of which point to

the trigger’s mechanical perspective as the proper

reading). See Gun Owners, 992 F.3d at 471; cf. Kisor,

139 S. Ct. at 2415.

A comparison of this “cursory analysis” to recent

Supreme Court decisions shows the stark conflict in

approaches. Pereira, 138 S. Ct. at 2120 (Kennedy, J.,

concurring); see, e.g., SAS Inst. Inc. v. Iancu, 138 S. Ct.

1348, 1354–58 (2018); Esquivel-Quintana, 137 S. Ct. at

1568–72. In Pereira, for example, the relevant statute’s

meaning turned in part on the preposition “under.” See

72a

138 S. Ct. at 2117. Like the D.C. Circuit, the Court

readily admitted that this “chameleon” word could

convey many distinct meanings, some of which favored

the government and some of which favored the private

party. Id. (citation omitted). Unlike the D.C. Circuit in

Guedes, however, the Court did not call it a day at that

point. Rather, it recognized that a careful textual

parsing of the statute as a whole pointed to one

unambiguous meaning. Id.; see id. at 2114–16. The

circuit courts that found the Bump-Stock Rule

ambiguous should have done the same.

Second, these circuit courts wrongly throw out the

rule of lenity when interpreting the statutory

“machinegun” definition at Chevron step one. See

Aposhian, 958 F.3d at 982–84; Guedes, 920 F.3d at

27–28. The Supreme Court has told us that we must

use the standard canons of construction to decide

whether a statute is unambiguous at this stage. See

Epic, 138 S. Ct. at 1630; SWANCC, 531 U.S. at

173–74. And the rule of lenity is one of the most

traditional tools in our interpretive “toolkit.” Kisor,

139 S. Ct. at 2415; see Wiltberger, 18 U.S. at 95. Well

before Chevron, for example, the Supreme Court

refused to follow a regulatory interpretation of a law

with civil and criminal applications because the

agency’s reading would have done “violence to the wellestablished principle that penal statutes are to be

construed strictly.” FCC v. Am. Broad. Co., 347 U.S.

284, 296 (1954). Within the Chevron framework,

moreover, if a canon of construction such as the rule of

lenity “resolves a statutory doubt in one direction, an

agency may not reasonably resolve it in the opposite

direction.” Carter, 736 F.3d at 731 (Sutton, J.,

73a

concurring). Ambiguity “in this situation is a

congressional choice” in favor of a narrow

interpretation of the criminal law, “not a delegation to

the agency.” Arangure, 911 F.3d at 342. So even

assuming that any ambiguity remained in the

statutory “machinegun” definition, the rule of lenity

would resolve that ambiguity against the Bump-Stock

Rule’s broad reading.

The courts that take the opposite view rely on a

footnote from Babbitt that rejected the use of the rule

of lenity when deferring to the Secretary’s regulation

implementing the “take” prohibition in the

Endangered Species Act. 515 U.S. at 704 n.18; see

Guedes, 920 F.3d at 27. Recall, however, that this Act

includes an express delegation of criminal rulemaking

authority to the Secretary to implement this

prohibition. 16 U.S.C. § 1540(a)(1), (b)(1). Thus,

Babbitt is best read as an express-delegation case, not

as one that “rest[ed] on Chevron’s fiction” that

Congress intends to give agencies interpretive

authority over ambiguous texts. Cuozzo, 136 S. Ct. at

2148 (Thomas, J., concurring). For that type of express

delegation, perhaps the rule of lenity should kick in

later to govern the interpretation of the agency’s

implementing regulation (as Babbitt seemed to

suggest). See 515 U.S. at 704 n.18; see also M. Kraus &

Bros., 327 U.S. at 622. But we need not decide how the

rule of lenity interacts with such express delegations.

This case involves Chevron’s fiction, not an express

delegation. And the logic of the Supreme Court’s

precedent leaves no doubt that traditional canons of

construction like the rule of lenity apply at Chevron’s

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first step. SWANCC, 531 U.S. at 173–74; Arangure,

911 F.3d at 343–44.

***

By continuously firing at rapid speeds with one

activation of the trigger, machine guns can inflict great

harm in short periods. And no doubt many people

believe that rifles equipped with bump stocks share

the same dangerous traits that led Congress to ban

machine guns. Bump-Stock Rule, 83 Fed. Reg. at

66,520. So even though these newer devices might not

fall “within the letter” of the statutory “machinegun”

ban, courts may be tempted to treat them as covered

anyway because they fall within its underlying “spirit.”

Holy Trinity Church v. United States, 143 U.S. 457,

459 (1892). In a country with a fluid separation of

powers between the branches of government, this

judicial approach of enlarging a statute through

“equitable” interpretation rather than legislation

might not be problematic. See John F. Manning,

Textualism and the Equity of the Statute, 101 Colum.

L. Rev. 1, 8 (2001). In our country, however, the

judiciary has long had a narrower duty: “to apply, not

amend, the work of the People’s representatives.”

Henson v. Santander Consumer USA Inc., 137 S. Ct.

1718, 1726 (2017). This duty leaves the policy debate

over whether to ban bump stocks where it

belongs—with the legislative branch accountable to

the people. And since that branch has not seen fit to

ban bump stocks or give a federal agency the power to

do so, I must respectfully dissent from our judgment

affirming the district court’s decision in this case.

75a

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

___________________________________

Deborah S. Hunt, Clerk

76a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GUN OWNERS OF AMERICA, INC.; GUN OWNERS

FOUNDATION; VIRGINIA CITIZENS DEFENSE LEAGUE;

MATT WATKINS; TIM HARMSEN; RACHEL MALONE,

Plaintiffs-Appellants,

GUN OWNERS OF CALIFORNIA, INC.,

Movant,

v.

MERRICK B. GARLAND, in his official capacity as

Attorney General of the United States; UNITED

STATES DEPARTMENT OF JUSTICE; BUREAU OF

ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES;

REGINA LOMBARDO, in her official capacity as Acting

Director, Bureau of Alcohol, Tobacco, Firearms, and

Explosives,

Defendants-Appellees.

No. 19-1298

Appeal from the United States District Court for the

Western District of Michigan at Grand Rapids.

No. 1:18-cv-01429—Paul Lewis Maloney, District

Judge.

Argued: December 11, 2019

Decided and Filed: March 25, 2021

Before: BATCHELDER, WHITE, and MURPHY,

Circuit Judges.

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________________

COUNSEL

ARGUED: Robert J. Olson, WILLIAM J. OLSON,

P.C., Vienna, Virginia, for Appellants. Brad

Hinshelwood, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellees. ON

BRIEF: Robert J. Olson, WILLIAM J. OLSON, P.C.,

Vienna, Virginia, Kerry L. Morgan, PENTIUK,

COUVREUR & KOBILJAK, P.C., Wyandotte,

Michigan, for Appellants. Brad Hinshelwood, Abby C.

Wright, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellees. Ilya

Shapiro, CATO INSTITUTE, Washington, D.C., James

Bardwell, NATIONAL ASSOCIATION FOR GUN

RIGHTS, Loveland, Colorado, for Amici Curiae.

BATCHELDER, J., delivered the opinion of the

court in which MURPHY, J., joined. WHITE, J. (pp.

38-60), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge. The

question before us is whether a bump stock may be

properly classified as a machine gun as defined by 26

U.S.C. § 5845(b).1 But this case rests as much on who

determines the statute's meaning as it does on what

the statute means.

1

We will use the modern spelling of “machine gun” as two words

unless quoting 26 U.S.C. § 5845(b), which spells “machinegun” as

one word.

78a

On December 26, 2018, the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF” or “Agency”)

promulgated a rule that classified bump stocks as

machine guns, reversing its previous position. See

Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec.

26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479)

(“Final Rule”). Plaintiffs-Appellants—three gun-rights

organizations, two individuals who own bump stocks,

and one individual who would purchase a bump stock

if not for the Final Rule—filed a motion for a

preliminary injunction to prevent the Final Rule from

taking effect. After finding that the ATF's

interpretation was entitled to Chevron deference, the

district court held that the Final Rule’s classification

of bump stocks as machine guns was “a permissible

interpretation” of § 5845(b). Accordingly, the court

concluded that Plaintiffs-Appellants were unlikely to

succeed on the merits and denied the preliminary

injunction.

Because an agency’s interpretation of a criminal

statute is not entitled to Chevron deference and

because the ATF’s Final Rule is not the best

interpretation of § 5845(b), we REVERSE the district

court’s judgment and REMAND for proceedings

consistent with this opinion.

I. Background

A. Statutory History of the Machine Gun

For as long as there have been firearms, there have

been efforts to make them shoot faster. See JOHN

ELLIS, THE SOCIAL HISTORY OF THE MACHINE GUN 9-14

79a

(1986). The modern-day machine gun dates back to the

nineteenth century with Richard Gatling’s 1861

invention of the hand-cranked Gatling gun and Hiram

Maxim’s 1884 invention of the fully automatic Maxim

gun. At first, these technological advances changed

only the nature of warfare. But their impact soon

reached the civilian world with the submachine gun

becoming the weapon of choice of organized crime

during the Prohibition Era. See David T. Hardy, The

Firearms Owners’ Protection Act: A Historical and

Legal Perspective, 17 CUMB. L. REV. 585, 589-90 (1987).

Seeking to crack down on the criminal use of

concealable, high-powered firearms, Congress passed

the National Firearms Act of 1934, Pub. L. No. 73-474,

48 Stat. 1236 (codified as amended in I.R.C. ch. 53).

See S. REP. NO. 73-1444, at 1-2 (1934) (“The gangster

as a law violator must be deprived of his most

dangerous weapon, the machine gun. Your committee

is of the opinion that limiting the bill to the taxing of

sawed-off guns and machine guns is sufficient at this

time.”). “Representing the first major federal attempt

to regulate firearms,” that 1934 Act levied a then-steep

$200 tax (estimated at over $3,800 in today’s dollars)

on the purchase of a machine gun. Lomont v. O'Neill,

285 F.3d 9, 11-12 (D.C. Cir. 2002); Ch. 757, 48 Stat. at

1237; see also National Firearms Act: Hearings on H.R.

9066 Before the H. Comm. on Ways and Means, 73d

Cong. 22-24 (1934) (Attorney General Homer

Cummings explaining to the House Ways and Means

Committee that the tax provision would permit the

federal government to successfully prosecute gangsters

with tax evasion, as it had done with Al Capone). That

1934 Act defined “machine gun”:

80a

The term “machine gun” means any weapon

which shoots, or is designed to shoot,

automatically or semiautomatically, more than

one shot, without manual reloading, by a single

function of the trigger.

Ch. 757, 48 Stat. at 1236.

Thirty years later, in response to several

high-profile assassinations, including those of

President John F. Kennedy, Senator Robert F.

Kennedy, and Dr. Martin Luther King, Jr., Congress

passed the Gun Control Act of 1968, which, among

other restrictions, prohibited felons, drug users, and

the mentally ill from purchasing firearms. Pub. L. No.

90-618, 82 Stat. 1213 (amending 18 U.S.C. §§ 921-28

and I.R.C. ch. 53). The 1968 Act’s definition of a

machine gun largely adopted the 1934 Act’s definition

but also expanded its scope to include other parts or

devices that could convert a weapon into a machine

gun:

The term “machinegun” means any weapon

which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more

than one shot, without manual reloading, by a

single function of the trigger. The term shall

also include the frame or receiver of any such

weapon, any combination of parts designed and

intended for use in converting a weapon into a

machinegun, and any combination of parts from

which a machinegun can be assembled if such

parts are in the possession or under the control

of a person.

81a

§ 5845(b), 82 Stat. at 1231.

Finally, in 1986, Congress passed the Firearm

Owners’ Protection Act, which banned civilian

ownership of machine guns manufactured after May

1986, as well as any parts used to convert an otherwise

legal semiautomatic firearm into an illegal machine

gun. Pub. L. No. 99-308, 100 Stat. 449 (1986)

(amending 18 U.S.C. §§ 921-29). The 1986 Act

amended only the second part of § 5845(b):

Section 5845(b) of the National Firearms Act (26

U.S.C. 5845(b)) is amended by striking out “any

combination of parts designed and intended for

use in converting a weapon into a machinegun,”

and inserting in lieu thereof “any part designed

and intended solely and exclusively, or

combination of parts designed and intended, for

use in converting a weapon into a machinegun.”

§ 109(a), 100 Stat. at 460.

Thus, as currently codified, the statutory definition

of a machine gun reads:

The term “machinegun” means any weapon

which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more

than one shot, without manual reloading, by a

single function of the trigger. The term shall

also include the frame or receiver of any such

weapon, any part designed and intended solely

and exclusively, or combination of parts

designed and intended, for use in converting a

82a

weapon into a machinegun, and any

combination of parts from which a machinegun

can be assembled if such parts are in the

possession or under the control of a person.

26 U.S.C. § 5845(b) (2019).

While Congress has enacted other legislation

during the past 30 years, both expanding and reducing

gun-control measures, no law has amended the

definition of a machine gun since 1986.

B. Regulatory History of the Bump Stock

Though there are different versions, all bump

stocks are devices designed to assist the shooter in

“bump firing,” a technique that increases a

semiautomatic firearm’s rate of fire. The bump stock

replaces the standard stock of a semiautomatic rifle,

i.e., the end of the rifle that rests against the shooter’s

shoulder. In contrast to the standard stock, which is

stationary, the bump stock is a sliding stock that

enables the firearm to move backwards and forwards

in a “constrained linear”—i.e., straight—fashion. Final

Rule, 83 Fed. Reg. at 66,518. To initiate bump firing,

the shooter pulls the trigger once, firing one shot,

while maintaining “constant forward pressure with the

non-trigger hand on the barrel-shroud or fore-grip of

the rifle.” Id. at 66,516. At the same time, the shooter

also maintains constant rearward pressure with his

trigger hand, while keeping his trigger finger

stationary. The recoil energy from the fired shot causes

the firearm to slide backward approximately 1.5

inches. Id. at 66,518. The forward pressure applied by

83a

the shooter’s non-trigger hand, along with the recoil

energy channeled by the bump stock, causes the

firearm to then slide forward. As the firearm slides

forward, the trigger “bumps” against the shooter’s

stationary trigger finger, causing the trigger to depress

and the firearm to shoot again. This second fired shot

creates recoil energy once again, which again causes

the bump-stock-attached firearm to slide back. The

trigger is released and reset, and the process repeats.

This cycle will continue until the shooter moves his

or her trigger finger, fails to maintain constant

forward pressure with the non-trigger hand, the

firearm malfunctions, or the firearm runs out of

ammunition. As with any semiautomatic weapon, the

trigger must be completely depressed, released, and

then reset before it is capable of firing another shot.

Only one shot is fired each time the trigger is

depressed. The bump stock enables a shooter to

complete this depress-release-reset cycle of the trigger

faster than would otherwise be possible without the

bump stock.

Though the bump-firing technique has been around

for as long as there have been semiautomatic

firearms,2 the first patented bump-stock device was

invented only 20 years ago. In 1998, William Akins

applied for a patent for an “apparatus for accelerating

the cyclic firing rate of a semi-automatic firearm.”

2

A bump stock device is not needed to facilitate bump firing.

Final Rule, 83 Fed. Reg. at 66,532-33. Rubber bands, belt loops,

and even shoestrings can all facilitate bump firing and create the

same continuous firing cycle that a bump-stock device creates. Id.

84a

Akins v. United States, No. 8:08-cv-988, 2008 WL

11455059, at *2 (M.D. Fla. Sept. 23, 2008). Akins

received Patent No. 6,101,918 on August 15, 2000, and

named his new device the “Akins Accelerator.” Id. In

March 2002, Akins asked the ATF whether it would

classify the Akins Accelerator as a machine gun. Id.

After some initial confusion, the ATF confirmed that

the Akins Accelerator “[did] not constitute a

machinegun . . . [nor] a part or parts designed and

intended for use in converting a weapon into a

machinegun,” and Akins began to mass produce and

distribute his new device. Id.

In 2006, the ATF opened an investigation and, by

its own admission, “overruled” its previous decision

that the Akins Accelerator was not a machine gun.

Final Rule, 83 Fed. Reg. at 66,517. The Agency

concluded that the Accelerator’s internal spring made

the device a machine gun, but stated that if

Accelerator owners removed the internal spring from

the device, then it “would render the device a

non-machinegun under the statutory definition.” Id.

Akins sued, arguing that the Agency’s reversal was

unreasonable, that the reversal violated due process,

and that the statutory definition of machine gun was

unconstitutionally vague. See Akins v. United States,

312 F. App’x 197, 198 (11th Cir. 2009) (per curiam).

But his suit failed. Id.

Meanwhile, “[b]etween 2008 and 2017, [the] ATF []

issued classification decisions concluding that other

bump-stock-type devices were not machineguns,

primarily because the devices did not rely on internal

springs or similar mechanical parts to channel recoil

85a

energy.” Final Rule, 83 Fed. Reg. at 66,514 (emphasis

added). But, as with the Akins Accelerator, the ATF

later reversed course on these nonmechanical bump

stocks too.

On October 1, 2017, in Las Vegas, Nevada, a

gunman from his 32nd-floor hotel room fired down on

a crowd of people at a nearby concert for nearly fifteen

minutes, killing 58 and wounding over 500. The

gunman used bump-stock devices attached to his

semiautomatic rifles to increase his rate of firing,

allowing him to inflict heavy casualties in a short

period of time. In response to the shooting, President

Trump “direct[ed] the Department of Justice to

dedicate all available resources . . . as expeditiously as

possible, to propose for notice and comment a rule

banning all devices that turn legal weapons into

machineguns.” Application of the Definition of

Machinegun to “Bump Fire” Stocks and Other Similar

Devices, 83 Fed. Reg. 7949 (Feb. 23, 2018).

On March 29, 2018, the Department of Justice

(“DOJ”) published a notice of proposed rulemaking

that reinterpreted the terms “single function of the

trigger” and “automatically,” as used in 26 U.S.C.

§ 5845(b), in order to classify bump stocks as machine

guns. Bump-Stock-Type Devices, 83 Fed. Reg. 13,442

(proposed Mar. 29, 2018) (to be codified at 27 C.F.R.

pts. 447, 478, 479). Over 186,000 comments were

submitted in response to the notice. Final Rule, 83

Fed. Reg. at 66,519. On December 26, 2018, the ATF

published the Final Rule, classifying bump stocks as

machine guns. Id. at 66,514. The Final Rule rescinded

the ATF’s prior classification letters permitting

86a

nonmechanical bump stocks and held that all bump

stocks must either be surrendered to the government

or destroyed by March 26, 2019, in order for

bump-stock owners to avoid criminal liability. Id.

C. Procedural History

Plaintiffs-Appellants filed suit on December 26,

2018, the same day that the Final Rule was published

in the Federal Register. Plaintiffs-Appellants claimed

that the Final Rule violated the Administrative

Procedure Act (“APA”), the Fifth Amendment’s

Takings Clause, and the Fourteenth Amendment’s

Due Process Clause. Plaintiffs-Appellants also sought

a preliminary injunction to stop the Final Rule from

taking effect. The district court denied the preliminary

injunction. Gun Owners of Am. v. Barr, 363 F. Supp.

3d 823, 834 (W.D. Mich. 2019). The court found that

the ATF’s interpretation was entitled to Chevron

deference and that the Final Rule’s classification of

bump stocks as machine guns was “a permissible

interpretation” of § 5845(b). Id. at 830-32.

While appealing the denial of their preliminary

injunction, Plaintiffs-Appellants moved to stay the

effective date of the Final Rule. We denied the

requested stay, Gun Owners of Am., Inc. v. Barr, No.

19-1298, 2019 WL 1395502, at *1-2 (6th Cir. Mar. 25,

2019), as did the Supreme Court, Gun Owners of Am.,

Inc. v. Barr, No. 18A963, 139 S. Ct. 1406 (2019). The

Final Rule took effect on March 26, 2019.

87a

Before us now is Plaintiffs-Appellants’ appeal of the

district court’s denial of their request for a preliminary

injunction.

II. Standard of Review

“When deciding whether to issue a preliminary

injunction, the district court considers the following

four factors: (1) whether the movant has a ‘strong’

likelihood of success on the merits; (2) whether the

movant would otherwise suffer irreparable injury; (3)

whether issuance of a preliminary injunction would

cause substantial harm to others; and (4) whether the

public interest would be served by issuance of a

preliminary injunction.” Leary v. Daeschner, 228 F.3d

729, 736 (6th Cir. 2000) (citation omitted). The final

two factors—assessing the harm to others and

weighing the public interest—“merge when the

Government is the opposing party.” Wilson v.

Williams, 961 F.3d 829, 844 (6th Cir. 2020) (quoting

Nken v. Holder, 556 U.S. 418, 435, 129 S. Ct. 1749, 173

L. Ed. 2d 550 (2009)).

“When a party appeals the denial of a preliminary

injunction, we ask whether the district court abused

its discretion—by, for example, applying an incorrect

legal standard, misapplying the correct one, or relying

on clearly erroneous facts.” Pulte Homes, Inc. v.

Laborers’ Int’l Union of N. Am., 648 F.3d 295, 305 (6th

Cir. 2011). This means that we “review the district

court’s legal conclusions de novo and its factual

determinations for clear error.” Id. “The district court’s

determination of whether the movant is likely to

succeed on the merits is a question of law and is

88a

accordingly reviewed de novo.” Certified Restoration

Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d

535, 541 (6th Cir. 2007).

III. Analysis: Chevron Deference

Before determining whether the ATF’s

interpretation of § 5845(b) prevails, we must

determine what deference, if any, we must give to its

interpretation. Plaintiffs-Appellants argue that an

agency’s construction is not, or should not be, entitled

to deference when construing a criminal statute.3 We

agree and conclude that Chevron deference

categorically does not apply to the judicial

interpretation of statutes that criminalize conduct, i.e.,

that impose criminal penalties. Because the definition

of machine gun in § 5845(b) applies to a machine-gun

ban carrying criminal culpability and penalties, we

cannot grant Chevron deference to the ATF’s

interpretation.

3

Plaintiffs-Appellants also argue that the ATF waived reliance

on Chevron deference. See Martin v. Soc. Sec. Admin. Comm’r, 903

F.3d 1154, 1161 nn. 48-49 (11th Cir. 2018) (collecting cases from

the circuit split as to whether Chevron deference is waivable); see

also Guedes v. ATF, 140 S. Ct. 789, 790 (2020) (Gorsuch, J.,

concurring in the denial of cert.) (explaining that the Supreme

Court “has often declined to apply Chevron deference when the

government fails to invoke it”). And the ATF agrees, taking the

position that, because its interpretation of § 5845(b) is the best

interpretation, deference to its interpretation is “unnecessary,” so

it “does not rely on Chevron deference” in this case. Because we

find, and hold, that Chevron deference does not apply in this case

anyway (because it does not apply to criminal statutes such as we

have here), we need not consider or decide the issue of waiver.

89a

A. Chevron Deference

In what turned out to be a landmark decision,

Chevron USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 865 (1984), introduced the

concept of “Chevron deference”: an administering

agency’s interpretation of a statute “is entitled to

deference” from the courts. “Chevron is rooted in a

background presumption of congressional intent,” that

Congress intentionally delegated interpretive

authority to the agency by enacting a statute with

“capacious terms” rather than “plain terms.” City of

Arlington v. FCC, 569 U.S. 290, 296 (2013).

Despite becoming “the most-cited administrative

law case of all time,” Jonathan R. Siegel, The

Constitutional Case for Chevron Deference, 71 VAND. L.

REV. 937, 938 (2018), “Chevron did not appear at first

to be a major decision in administrative law,” Paul J.

Larkin, Jr., Chevron and Federal Criminal Law, 32 J.

L. & POL. 211, 215 n.25 (2017). “That a third of its

members were sidelined”—due to the recusals of

Justices Marshall, Rehnquist, and O’Connor—“reduces

the likelihood that the Court intended to make a

tectonic shift in administrative law.” Id. Regardless of

its perceived intent—or lack thereof—Chevron did just

that. Under its two-step process:

First, applying the ordinary tools of statutory

construction, the court must determine whether

Congress has directly spoken to the precise

question at issue. If the intent of Congress is

clear, that is the end of the matter; for the court

. . . must give effect to the unambiguously

90a

expressed intent of Congress. But 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.

City of Arlington, 569 U.S. at 296 (quotation marks

omitted) (relying on Chevron, 467 U.S. at 842-43).

Restated a bit more succinctly: (1) is the statutory

provision ambiguous and, if so, (2) is the agency’s

interpretation “permissible” within that ambiguity. If

both steps are satisfied, the court must defer to the

agency’s interpretation regardless of the court’s own

views of the correct or better interpretation of the

provision. See Chevron, 467 U.S. at 843-44. Later, in

National Cable & Telecommunications Association v.

Brand X Internet Services, 545 U.S. 967, 982 (2005),

the Court explained that Chevron deference means

that an agency’s construction is paramount to even a

prior judicial construction, thus an agency may

effectively overrule court precedent.

B. Supreme Court Precedent

The Chevron Court was clear and unequivocal:

“When a court reviews an agency’s construction of the

statute which it administers . . . [and] th[at] statute is

silent or ambiguous with respect to the specific issue[,]

. . . [the] court may not substitute its own construction

of [that] statutory provision for a reasonable

interpretation made by the . . . agency.” Chevron, 467

U.S. at 842-44 (footnote omitted). Chevron did not

draw any distinctions or identify any exceptions.

91a

But in 2014, the Court said, “we have 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, 134 S. Ct. 1144, 188 L. Ed. 2d 75 (2014)

(emphasis added) (citing Crandon v. United States, 494

U.S. 152, 177, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990)

(Scalia, J., concurring in the judgment)). “Never” and

“any” are absolutes, and the Court did not draw any

distinctions, add any qualifiers, or identify any

exceptions. A few months later, in Abramski v. United

States, 573 U.S. 169, 191, 134 S. Ct. 2259, 189 L. Ed.

2d 262 (2014), the Court quoted that same statement

when rejecting a petitioner’s argument that the ATF’s

former construction of a criminal statute should inform

the Court’s decision. The Abramski Court explained:

The critical point is that criminal laws are for

courts, not for the Government, to construe. We

think ATF’s old position no more relevant than

its current one—which is to say, not relevant at

all. Whether the Government interprets a

criminal statute too broadly (as it sometimes

does) or too narrowly (as the ATF used to

[regarding this provision]), a court has an

obligation to correct its error. Here, nothing

suggests that Congress—the entity whose voice

does matter—limited [the provision’s]

prohibition . . . in the way [the petitioner]

proposes.

Id. (citation omitted). Thus, the Court was clear,

unequivocal, and absolute in saying that it has “never

held that the Government’s reading of a criminal

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statute is entitled to any deference.” Apel, 571 U.S. at

369; Abramski, 573 U.S. at 191.

Unless the Court was mistaken in those two cases

or exaggerating for effect, that bold, absolute

statement means that none of the Court’s prior cases

applied Chevron deference (or any deference) to an

agency’s interpretation of a criminal statute. That

merits some discussion.

Start with Chevron, which was not a criminal

prosecution. The Environmental Protection Agency

(EPA) was the defendant; Chevron was just an

intervenor. Chevron, 467 U.S. at 841 n.4. In

implementing the Clean Air Act, which had created a

permitting program for “stationary sources” of air

pollution and delegated that program to the States, the

EPA promulgated regulations “allow[ing] [the] State[s]

to adopt a plantwide definition of the term ‘stationary

source,’” a term the Act had used, but not defined. Id.

at 840 (footnote omitted). The NRDC sued and “[t]he

question presented . . . [was] whether EPA’s decision

to allow States to treat all of the pollution-emitting

devices within the same industrial grouping as though

they were encased within a single ‘bubble’ [wa]s based

on a reasonable construction of the statutory term

‘stationary source.’” Id. After creating the

aforementioned “Chevron deference,” id. at 842-45, the

Court determined that the EPA’s definition was

permissible within the Act’s ambiguity, describing it as

“an effective reconciliation of the[] twofold ends” of

“reducing air pollution [and protecting] economic

growth,” id. at 866 (quotation marks, editorial marks,

and citation omitted).

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To be sure, the Clean Air Act contains criminal

penalties for—among other things such as false

reporting and tampering with monitoring devices—a

permitted facility’s knowing violation of its permit

requirements, but the Chevron opinion contains no

reference to the Act’s criminal provisions nor did the

case concern the possibility of any criminal sanction.

No reasonable reading of Chevron could stand for the

proposition that the government’s interpretation of a

criminal statute is entitled to Chevron deference.

Whether the Court intended to (silently) exclude the

criminal-provision issue or merely did not consider the

criminal-provision issue that was not before it,

Chevron easily falls within the Court’s proclamations

in Apel and Abramski that it has never held that the

government’s reading of a criminal statute is entitled

to deference.

The Court’s traditional approach, under the modern

nondelegation doctrine, has been to allow Congress to

delegate to the executive branch the responsibility for

defining crimes, but only so long as it speaks

“distinctly.” United States v. Grimaud, 220 U.S. 506,

519 (1911); United States v. Eaton, 144 U.S. 677, 688

(1892). “This clear-statement rule reinforces horizontal

separation of powers . . . [and] compels Congress to

legislate deliberately and explicitly before departing

from the Constitution’s traditional distribution of

authority. Carter v. Welles-Bowen Realty, Inc., 736

F.3d 722, 733 (6th Cir. 2013) (Sutton, J., concurring).

Obviously, Chevron—which applies only where there

is statutory ambiguity—is the opposite of a “clear

statement.”

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In Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687, 690 (1995), the

Endangered Species Act made it a crime to “take” an

endangered species and the Department of the

Interior’s (DOI’s) regulation said that such “taking”

included the modification or degradation of the species’

habitat. Sweet Home sought a declaratory judgment

that the statute did not support that regulation,

making the regulation facially invalid. Id. at 692. The

Court did not employ a full Chevron analysis, though

it cited Chevron “generally” in announcing that it did

“owe some degree of deference to the [DOI]’s

reasonable interpretation,” due, in part, to the

“latitude the [Act] gives to the [DOI] in enforcing the

statute.” Id. at 703-04; see also id. at 708 (“When it

enacted the ESA, Congress delegated broad

administrative and interpretive power to the [DOI].”).

Thus, the Court appears to have been relying on the

clear-statement rule’s delegation of authority to the

DOI as if the DOI were Congress itself. The Court also

included a footnote addressing the “rule of lenity,” in

which it emphasized that it was not reviewing a

criminal prosecution but rather a facial challenge to an

administrative regulation, which did not necessarily

invoke the “rule of lenity” just because “the governing

statute authorize[d] criminal enforcement.” Id. at 704

n.18 (distinguishing United States v.

Thompson/Center Arms Co., 504 U.S. 505, 517-18 &

n.9 (1992)). While Babbitt certainly cited Chevron and

used the word deference with regard to the DOI’s

interpretation, Babbitt did not discuss or decide

whether Chevron applied nor did it analyze the

challenge using Chevron, just as it did not decide

whether the rule of lenity applied or analyze the

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challenge using the rule of lenity. “The best that one

can say . . . is that in Babbitt [] [the Court] deferred,

with scarcely any explanation, to an agency’s

interpretation of a law that carried criminal penalties.

. . . Babbitt’s drive-by ruling, in short, deserves little

weight.” Whitman v. United States, 574 U.S. 1003, 135

S. Ct. 352, 190 L. Ed. 2d 381 (2014) (Scalia, J., joined

by Thomas, J., respecting the denial of cert.). While

Babbitt certainly mentioned deference, it did not hold

that an agency’s interpretation of a criminal statute is

entitled to Chevron deference, and thus falls within

the Court’s proclamations in Apel and Abramski that

it had never so held.

In United States v. O’Hagan, 521 U.S. 642, 669

(1997), the Securities Exchange Act had criminalized

“fraudulent trading,” which included the use of

“material nonpublic information concerning a pending

tender offer,” and the Securities and Exchange

Commission’s (SEC’s) rule said that such trading was

illegal even if the trader owed no duty to keep that

information secret. When the government convicted

O’Hagan of this, he argued that the conviction was

invalid because the rule was invalid, because the SEC

had exceeded its rulemaking authority. Id. at 666-67.

The Court rejected that argument, finding that the

statute expressly “delegates definitional and

prophylactic rulemaking authority to the [SEC],” id. at

667, and explained: “Because Congress has authorized

the [SEC] to prescribe legislative rules, we owe the

[SEC]’s judgment more than mere deference or

weight.” Id. at 673 (quotation marks and citation

omitted). Although the Court quoted Chevron for the

proposition that it “must accord the [SEC]’s

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assessment controlling weight unless it is arbitrary,

capricious, or manifestly contrary to the statute,” id.

(editorial and quotation marks omitted), it did not

conduct a Chevron analysis or present this as “Chevron

deference.” The Court’s analysis relied on the statutory

delegation of authority to the SEC under the

clear-statement rule. See id. at n.19; see also id. at 679

(Scalia, J., concurring in part) (drawing a distinction

for situations “where (as here) no Chevron deference is

being given to the agency’s interpretation”). While

O’Hagan used the word “deference,” it cannot be read

to support the proposition that the agency’s

interpretation of a criminal statute receives Chevron

deference. O’Hagan falls within the Court’s

proclamations in Apel and Abramski that it had never

so held.

We are not aware of any other Supreme Court

opinion that would question the proclamation in Apel

and Abramski, but there are opinions that are

consistent with it. In at least three cases, the Court

has indicated that the rule of lenity—the practical

opposite of Chevron deference—applies to ambiguous

statutory provisions that have both civil and criminal

applications, thus resolving statutory ambiguities in

favor of the criminal defendant rather than the

government. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11

n.8 (2004); Thompson/Center Arms Co., 504 U.S. at

517-18, 518 nn.9-10 (plurality); id. at 519 (Scalia, J.,

concurring in the judgment); SWANCC v. U.S. Army

Corps of Eng’rs, 531 U.S. 159, 173-74, 174 n.8 (2001).

Considered altogether, if we take the Court at its

word, it has never held that a court must necessarily

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grant Chevron deference to the government’s

interpretation of an ambiguous criminal statute. More

to the point for present purposes, we are aware of no

Supreme Court opinion that compels us to apply

Chevron deference to the ATF’s interpretation of

§ 5845(b) here.

C. Circuit Court Precedent

Our review of Sixth Circuit precedent reveals that

we generally do not apply Chevron deference to an

administering agency’s interpretation of a criminal

statute, as we have explained:

The special deference required by Chevron is

based on the expertise of an administrative

agency in a complex field of regulation with

nuances perhaps unfamiliar to the federal

courts. Unlike environmental regulation or

occupational safety, criminal law and the

interpretation of criminal statutes is the bread

and butter of the work of federal courts.

Dolfi v. Pontesso, 156 F.3d 696, 700 (6th Cir. 1998).

But, considered as a whole, Sixth Circuit precedent

appears to provide us with no controlling authority as

to whether we must or must not apply Chevron

deference to the definition of machine gun in § 5845(b).

To be sure, in Esquivel-Quintana v. Lynch, 810 F.3d

1019, 1023-24 (6th Cir. 2016), we relied on Babbitt,

515 U.S. at 704 n.18, to apply Chevron deference to the

Board of Immigration Appeals’ interpretation of an

immigration statute with both criminal and civil

98a

penalties. But the Supreme Court reversed that

decision based on an alternative analysis and, in so

doing, expressly refused to decide the applicability of

Chevron deference. Esquivel-Quintana v. Sessions, 137

S. Ct. 1562, 1572-73 (2017). Thus, our opinion in

Esquivel is at most persuasive authority. See CIC

Servs., LLC v. IRS, 925 F.3d 247, 257 (6th Cir. 2019),

cert. granted 140 S. Ct. 2737, 206 L. Ed. 2d 916 (2020)

(declining to follow earlier Sixth Circuit precedent that

had been reversed on other grounds).

Our reasoning in Esquivel was that “[t]he Supreme

Court has said that we must follow Chevron in cases

involving the Board’s interpretations of immigration

laws.” Esquivel, 810 F.3d at 1024 (citations omitted).

But the Supreme Court has not issued similarly

on-point opinions involving the definition of

“machinegun” in § 5845(b). The most analogous

precedent is Thompson/Center Arms Company, 504

U.S. at 517-18 (plurality opinion), in which the Court

applied the rule of lenity (not Chevron deference) to

statutory definitions in the National Firearms Act, 26

U.S.C. § 5845. See also id. at 519 (Scalia, J., concurring

in the judgment).

And we have never held that Chevron deference

applies to an agency’s interpretation of a purely

criminal statute, such as the ban on possessing a

machine gun in 18 U.S.C. § 922(o). See Esquivel, 810

F.3d at 1027 (Sutton, J., concurring in part and

dissenting in part) (“But all can agree that . . . Chevron

has no role to play in the interpretation of criminal

statutes.”); United States v. One TRW, Model M14,

7.62 Caliber Rifle, 441 F.3d 416, 420 & n.3 (6th Cir.

99a

2006) (considering an ATF ruling interpreting

§ 5845(b), finding the deference question unsettled,

and leaving it undecided, but noting that “[t]his matter

is further complicated by the fact that [] we are

interpreting a criminal statute, and under the rule of

lenity ambiguities are generally resolved in favor of

the party accused of violating the law, even in a civil

proceeding”). Instead, we have found that a court’s

deferring to an agency’s interpretation of a criminal

statute would be problematic, if not prohibited. See

United States v. Dodson, 519 F. App’x 344, 349 (6th

Cir. 2013) (“The ATF does not have the ability to

redefine or create exceptions to Congressional

statutes.”); Boettger v. Bowen, 923 F.2d 1183, 1186

(6th Cir. 1991) (“There is no intermediary to provide

further clarification between Congress and the persons

who are subject to penalty.”); see also, e.g., United

States v. Havis, 907 F.3d 439, 451 (6th Cir. 2018)

(Thapar, J., concurring), rev’d en banc, 927 F.3d 382

(6th Cir. 2019) (“How is it fair in a court of justice for

judges to defer to one of the litigants? . . . Such

deference is found nowhere in the Constitution—the

document to which judges take an oath.”); Carter, 736

F.3d at 732 (Sutton, J., concurring) (“Chevron

describes how judges and administrators divide power.

But power to define crimes is not theirs to divide.”).

Since Apel and Abramski, other federal courts have

split as to whether those opinions mandate that a

court may not, or merely permit that it need not, defer

to an agency’s interpretation of a criminal statute.

Compare United States v. Kuzma, 967 F.3d 959, 971

(9th Cir. 2020), cert. denied, 2020 WL 7132664 (2020)

(“Because criminal laws are for courts, not for the

100a

Government, to construe, the Supreme Court has

repeatedly rejected the view that the Government’s

reading of a criminal statute is entitled to any

deference.” (quotation marks and citations omitted)),

United States v. Balde, 943 F.3d 73, 83 (2d Cir. 2019)

(“[T]he Supreme Court has clarified that law

enforcement agency interpretations of criminal

statutes are not entitled to deference[.]”), United

States v. Garcia, 707 F. App’x 231, 234 (5th Cir. 2017)

(“The Supreme Court has now resolved this

uncertainty, instructing that no deference is owed to

agency interpretations of criminal statutes.”), and

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155 (10th

Cir. 2016) (Gorsuch, J., concurring) (“The Supreme

Court has expressly instructed us not to apply Chevron

deference when an agency seeks to interpret a criminal

statute.”), with Aposhian v. Barr, 958 F.3d 969, 982

(10th Cir. 2020), and Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 920 F.3d 1, 25 (D.C.

Cir. 2019), cert. denied, 140 S. Ct. 789 (2020)

(acknowledging that “the Supreme Court has signaled

some wariness about deferring to the government’s

interpretations of criminal statutes,” but

distinguishing Apel and Abramski and holding that

Babbitt still “govern[s] us here”).

We are not the first circuit court to review the

ATF’s Final Rule on bump stocks. The Tenth and D.C.

Circuits have each concluded that an administering

agency’s interpretation of a criminal statute is entitled

to Chevron deference, and, under that deferential

standard of review, found the ATF’s Final Rule a

permissible interpretation of § 5845(b). Both of those

courts found themselves bound by circuit precedent

101a

that an agency’s interpretation of a criminal statute is

entitled to Chevron deference. See Aposhian, 958 F.3d

at 982 (rejecting “a general rule against applying

Chevron to agency interpretations of statutes with

criminal law implications” because “controlling [Tenth

Circuit] precedent points in the other direction”). The

D.C. Circuit found that, in the securities context, it

had frequently granted Chevron deference to the SEC

notwithstanding the fact that violation of securities

laws “often triggers criminal liability.” Guedes, 920

F.3d at 24 (citations omitted). However, as discussed

above, we have no comparable precedent and, in fact,

our precedent suggests the opposite.4 And, as

mentioned, there is already a split among the Circuits

on the meaning of Apel and Abramski and whether the

Supreme Court now requires courts not to give any

deference to agency interpretations of criminal

statutes. With this decision we are joining one side of

a circuit split, not creating a circuit split.

D. Whether an Agency’s Interpretation of a

Criminal Statute is Entitled to Chevron

Deference

Having found that Supreme Court and Sixth

Circuit precedent neither require nor foreclose a

specific holding, we turn to the merits of the question.

Chevron deference is typically justified on two

4

We do not hear securities cases as frequently as the D.C. and

Second Circuits, and we have never reached the issue of Chevron

deference to the SEC’s interpretation of a criminal statute. See,

e.g., SEC v. Mohn, 465 F.3d 647, 650 n.2 (6th Cir. 2006) (noting

that the SEC conceded that “de novo review is appropriate” in that

case).

102a

rationales: (1) an administering agency is more likely

than a generalist court to determine the best

interpretation of a statute because of the agency’s

specialized “expertise” in the statute’s subject matter;

and (2) by employing ambiguous terms rather than

clear, specific language when drafting a statute,

Congress ostensibly was deliberately delegating its

lawmaking responsibilities to the agency. Arangure v.

Whitaker, 911 F.3d 333, 341-42 (6th Cir. 2018).

Whatever the merits of either rationale with respect to

civil statutes, see Michigan v. EPA, 576 U.S. 743,

760-64, 135

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