Amicus Curiae Brief — Gun Owners of America, Inc., et al., Petitioners v. Merrick B. Garland, Attorney General, et al.

No. 21-1215

In the

Supreme Court of the United States

__________________

GUN OWNERS OF AMERICA, INC., ET AL.,

Petitioners,

v.

MERRICK GARLAND, ATTORNEY GENERAL , ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

__________________

BRIEF OF AMICI CURIAE DAVID CODREA,

SCOTT HEUMAN AND OWEN MONROE IN

SUPPORT OF PETITIONERS

__________________

ALAN ALEXANDER BECK

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

STEPHEN D. STAMBOULIEH

Counsel of Record

STAMBOULIEH LAW, PLLC

P.O. Box 428

Olive Branch, MS 38654

(601) 852-3440

Stephen@sdslaw.us

Counsel for Amici Curiae

April 6, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

CORPORATE DISCLOSURE STATEMENT

The amici curiae are not corporations and thus they

have no parent corporations, and do not issue stock.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTERESTS OF THE AMICI CURIAE . . . . . . . . . . 1

INTRODUCTION AND BACKGROUND . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Rule of Lenity Applies Instead of Chevron

Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Bumpstocks are not Machineguns . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii

TABLE OF AUTHORITIES

CASES

Abramski v. United States,

573 U.S. 169 (2014). . . . . . . . . . . . . . . . . . . . . . 6, 7

Calder v. Bull,

3 U.S. (3 Dan.) 386, 390 (1798) . . . . . . . . . . . . . 10

Cargill v. Garland,

No. 20-51016, 2021 U.S. App. LEXIS 36905

(5th Cir. Dec. 14, 2021). . . . . . . . . . . . . . . . . . 5, 12

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013). . . . . . . . . . . . . . . 7, 8

Chevron v. Nat. Res. Def. Council,

467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . passim

Dig. Realty Trust, Inc. v. Somers,

138 S. Ct. 767 (2018). . . . . . . . . . . . . . . . . . . . . . . 7

Freedom Ordnance Mfg, Inc., v. Brandon,

No. 16-234, 2018 WL 7142127

(S.D. Indiana 2018). . . . . . . . . . . . . . . . . . . . . . . 11

Grayned v. City of Rockford,

408 U.S. 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . 9

Guedes v. BATFE,

356 F. Supp. 3d 109 (D.D.C. 2019). . . . . . 2, 13, 14

Guedes v. BATFE,

440 U.S. App. D.C. 141, 920 F.3d 1,

762 F. App’x 7 (2019) . . . . . . . . . . . . . . . . . . . 2, 14

iv

Guedes v. BATFE,

140 S. Ct. 789 (2020). . . . . . . . . . . . . . . . . . . . . . . 2

Guedes v. BATFE,

No. 18-cv-2988 (DLF), 2021 U.S. Dist. LEXIS

30926 (D.D.C. Feb. 19, 2021) . . . . . . . . . . . . . . . . 3

Gun Owners of Am., Inc. v. Garland,

992 F.3d 446 (6th Cir. 2021). . . . . . . . . . . . . . 5, 14

Gun Owners of Am., Inc. v. Garland,

No. 19-1298, 2021 U.S. App. LEXIS 19006

(6th Cir. June 25, 2021) . . . . . . . . . . . . . . . . . . . . 5

Gun Owners of Am., Inc. v. Garland,

No. 19-1298, 2021 U.S. App. LEXIS 35812

(6th Cir. Dec. 3, 2021). . . . . . . . . . . . . . . . . 5, 8, 14

HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 141 S. Ct. 2172 (2021) . . . . . . . . . . . 7

Johnson v. United States,

135 S. Ct. 2551 (2015). . . . . . . . . . . . . . . . . . 13, 14

Lamie v. United States Trustee,

540 U.S. 526, 124 S. Ct. 1023,

157 L. Ed. 2d 1024 (2004) . . . . . . . . . . . . . . . . . . . 6

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . 5

McDonnell v. United States,

136 S. Ct. 2355 (2016). . . . . . . . . . . . . . . . . . . . . 10

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021). . . . . . . . . . . . . . . . . . . . . . 6

v

Sessions v. Dimaya,

138 S. Ct. 1204 (2018). . . . . . . . . . . . . . . . 9, 13, 14

United States v. Apel,

571 U.S. 359 (2014). . . . . . . . . . . . . . . . . . . . . . . . 6

Wisconsin Central Ltd. v. United States,

585 U.S. ___, 138 S. Ct. 2067,

201 L. Ed. 2d 490 (2018) . . . . . . . . . . . . . . . 6, 8, 15

STATUTES

18 U.S.C. § 922(o) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

28 U.S.C. § 1295(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 3

REGULATIONS

27 CFR § 478.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

83 Fed. Reg. 13442 (Notice of Proposed

Rulemaking) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

83 Fed. Reg. 66514 (Dec. 26, 2018) . . . . . . . . 9, 11, 12

OTHER AUTHORITIES

George Orwell, 1984. . . . . . . . . . . . . . . . . . . . . . . . . 11

1

INTERESTS OF THE AMICI CURIAE

David Codrea, Scott Heuman and Owen Monroe

lawfully owned bumpstocks.1 They relied on the Bureau

of Alcohol, Tobacco, Firearms and Explosives’ (“ATF”)

repeated express approval of so-called bumpstock-type

devices. Despite the ten-plus years of approval, the

ATF reimagined and redefined terms in an

unambiguous criminal statute to outlaw bumpstocks

under penalty of prison, fines, and loss of Second

Amendment rights.

As such, they have an interest in the outcome of this

case because a positive ruling in the instant matter will

assist them in their efforts to have their lawful

property returned to them in the future and will help

guide other courts in reaching the correct conclusion

which is that bumpstocks are not machineguns.

INTRODUCTION AND BACKGROUND

Mr. Codrea, Mr. Heuman and Mr. Monroe filed

their complaint in the District of Columbia district

court against the ATF and the then-acting Attorney

General. See David Codrea, et al., v. Bureau of Alcohol,

Tobacco, Firearms and Explosives, et al., Civ. No. 1:18cv-3086 (DLF). On January 18, 2019, the Codrea

plaintiffs moved for a preliminary injunction. Amici’s

case was related, but not consolidated, with Guedes v.

1

No counsel for any party authored this brief in whole or in part,

nor did any counsel or party make any monetary contribution

intended to fund the preparation or submission of this brief. All

parties’ counsel of record received timely notice of the intended

filing of this brief and all consented to its filing.

2

BATFE, Civ. No. 1:18-cv-02988 (DLF). Inexplicably, the

district court applied deference found in Chevron v.

Nat. Res. Def. Council, 467 U.S. 837, (1984), despite the

government wholly failing to even mention Chevron in

its briefing.2 Guedes v. BATFE, 356 F. Supp. 3d 109

(D.D.C. 2019).

The Codrea plaintiffs appealed the denial of the

preliminary injunction to the Court of Appeals for the

District of Columbia, and the Guedes plaintiffs

appealed as well. The Circuit Court then consolidated

the appeals and granted the parties’ request for

expedited treatment. After an expedited hearing, the

Circuit Court affirmed the district court, and applied

Chevron deference as well. Guedes v. BATFE, 440 U.S.

App. D.C. 141 (2019).

This Court denied the parties’ petition for writ of

certiorari, but Justice Gorsuch wrote separately

cautioning that, “[c]ontrary to the court of appeals’s

decision in this case, [Chevron] has nothing to say

about the proper interpretation of the law before us. “

Guedes v. BATFE, 140 S. Ct. 789, 789 (2020) (Gorsuch,

J., Statement of Justice Gorsuch).

Back in the district court, the Codrea plaintiffs and

government defendants cross-moved for summary

judgment. The government took the position that there

was no ambiguity in the statute (Docket No. 42, p. 18),

and therefore, no need to apply Chevron. But the

district court applied Chevron deference again because

the D.C. Circuit Court blessed its application. See

2

See Government’s Opposition, 1:18-cv-03086 (DLF) Docket No.

16.

3

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, No. 18-cv-2988 (DLF), 2021 U.S. Dist.

LEXIS 30926, at *11-12 (D.D.C. Feb. 19, 2021) (D.C.

Circuit addressed Chevron “in Guedes II, which held

that the application of Chevron deference in this case

was proper”). Applying Chevron, the court found

“automatically” and “single function of the trigger”

ambiguous, and the government’s interpretation

“reasonable.” Id. at *15-16. Notably, neither the

district court nor the circuit court held that the

government had the “best reading” of the statute at

issue.

Guedes was appealed to the D.C. Circuit Court (see

Damien Guedes, et al v. ATF, et al; 21-5045) and

Codrea, because it contained a Takings Clause claim,

was appealed to the Federal Circuit (see David Codrea,

et al., v. Merrick B. Garland, et al.; 21-1707) because

the Federal Circuit has exclusive appellate jurisdiction

over Little Tucker Act claims under 28 U.S.C.

§ 1295(a)(2). Both are currently pending before the

aforementioned circuit courts with Guedes having

already been argued on March 8, 2022 and Codrea

stayed pending the grant or denial of certiorari in this

matter and W. Clark Aposhian, Petitioner v. Merrick B.

Garland, Attorney General, et al. (21-159).

Amici request that this Court grant certiorari in

this case as there is no need to allow further

percolation in the Courts of Appeals and because the

Sixth Circuit was hopelessly deadlocked. Such a grant

would stop the waste of party and judicial resources

and would have this Court announce a bright line rule

on the application of Chevron to a criminal statute.

4

SUMMARY OF THE ARGUMENT

18 U.S.C. § 922(o) is undeniably a criminal statute,

with real criminal penalties associated with its

enforcement, and thus, deference granted to an agency

under Chevron v. Nat. Res. Def. Council, 467 U.S. 837,

(1984) is improper. Instead, the rule of lenity should

apply. But taking away the application of Chevron that

the D.C. and Tenth Circuit, foisted upon the parties,

neither found that the agency has the best reading of

the statute. The Sixth Circuit, before vacating its

opinion and going en banc, found that Chevron did not

apply and ruled in favor of those plaintiffs, but then

hopelessly deadlocked en banc, affirming the lower

court. But then the Fifth Circuit weighed in and said

yes, the ATF has the best reading and didn’t apply

Chevron.

In any event, the Circuits are confused about what

rule of law to apply to determine whether the Final

Rule stands. It seems clear that bumpstocks are not

machineguns, despite the agency trying to define them

as such, because the National Firearms Act specifically

defines what a machinegun is, and a bumpstock doesn’t

qualify. Because the Circuits do not know how to deal

with this Rule and have said both that the government

has the best reading of the statute, and that the

government receives Chevron deference for an

obviously criminal statute, this Court should grant the

petition for certiorari and clarify this law for the lower

courts.

5

ARGUMENT

A. The Rule of Lenity Applies Instead of Chevron

Deference

These bumpstock cases have taken a bizarre turn.

These cases present what should be a straightforward

analysis by each of the courts, exercising its Article III

power (and duty) “to say what the law is” (Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)) and decide

if the government’s rule is the best reading of the

statute. Instead, the circuit courts (except for the panel

in the Sixth Circuit Court of Appeals in Gun Owners of

Am., Inc. v. Garland, 992 F.3d 446 (6th Cir. 2021) and

a panel in the Fifth Circuit, Cargill v. Garland, No. 2051016, 2021 U.S. App. LEXIS 36905 (5th Cir. Dec. 14,

2021)) have applied Chevron deference, allowing the

government to “say what the law is”, and have

essentially abdicated their Article III duty. The Sixth

Circuit came to the rescue and correctly freed the

parties from the albatross that neither wanted hanging

around their necks, analyzed the Final Rule, and found

that the government did not have the best reading.

Unfortunately, the Sixth Circuit then granted the

government’s petition for rehearing en banc, vacated

the panel’s opinion (Gun Owners of Am., Inc. v.

Garland, No. 19-1298, 2021 U.S. App. LEXIS 19006

(6th Cir. June 25, 2021)) and then hopelessly

deadlocked as to what to do next (Gun Owners of Am.,

Inc. v. Garland, No. 19-1298, 2021 U.S. App. LEXIS

35812 (6th Cir. Dec. 3, 2021) which, as a result,

affirmed the decision of the district court upholding the

rule.

6

As this Court recently stated, in resolving “a dispute

over a statute’s meaning, this Court normally seeks to

afford the law’s terms their ordinary meaning at the

time Congress adopted them. See, e.g., Wisconsin

Central Ltd. v. United States, 585 U.S. ___, ___, 138

S. Ct. 2067, 201 L. Ed. 2d 490, 495 (2018). The people

who come before us are entitled, as well, to have

independent judges exhaust ‘all the textual and

structural clues’ bearing on that meaning. Id., at ___,

138 S. Ct. 2067, 201 L. Ed. 2d 490, 499. When

exhausting those clues enables us to resolve the

interpretive question put to us, our ‘sole function’ is to

apply the law as we find it, Lamie v. United States

Trustee, 540 U.S. 526, 534, 124 S. Ct. 1023, 157 L. Ed.

2d 1024 (2004) (internal quotation marks omitted), not

defer to some conflicting reading the government might

advance.” Niz-Chavez v. Garland, 141 S. Ct. 1474,

1480 (2021). And yet, the courts are ignoring the plain

meaning of the statute at issue and applying Chevron

despite neither party wanting it and the government

explicitly stating it does not apply, and deferring to a

“conflicting reading the government” advanced. This

should not be allowed to stand.

The definition of a machinegun is a matter of

criminal law. This Court has made clear, “[t]he critical

point is that criminal laws are for courts, not for the

Government, to construe.” Abramski v. United States,

573 U.S. 169, 191 (2014). See also United States v.

Apel, 571 U.S. 359, 571 U.S. 359, 369 (2014) (‘[W]e

have never held that the Government’s reading of a

criminal statute is entitled to any deference’). Under

this principle, the “ATF’s old position no more relevant

than its current one — which is to say, not relevant at

7

all.” Abramski, 573 U.S. at 191. In 2018, this Court

held “[t]he statute’s unambiguous ... definition, in

short, precludes the [agency] from more expansively

interpreting that term.” Dig. Realty Trust, Inc. v.

Somers, 138 S. Ct. 767, 782 (2018) (emphasis added).

To put it bluntly, Chevron is thus utterly irrelevant to

this case.

This position is supported by this Court’s recent

decision in HollyFrontier Cheyenne Ref., LLC v.

Renewable Fuels Ass’n, 141 S. Ct. 2172 (2021). That

case dealt with smaller fuel refiners’ eligibility for

hardship extensions under the federal renewable fuels

program. The EPA granted such an exemption and

some program participants objected. In that case, the

federal government did not ask for such deference and,

rightfully so, Chevron was not considered: “the

government is not invoking Chevron. … We therefore

decline to consider whether any deference might be due

its regulation.” HollyFrontier Cheyenne Ref., LLC v.

Renewable Fuels Ass’n, 141 S. Ct. 2172 (2021).

In Judge Sutton’s well-reasoned concurrence in

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 73031 (6th Cir. 2013), discussing the differing applications

of lenity and Chevron, he stated:

the rule of lenity forbids deference to the

executive branch’s interpretation of a crimecreating law. If an ordinary criminal law

contains an uncertainty, every court would agree

that it must resolve the uncertainty in the

defendant’s favor. No judge would think of

deferring to the Department of Justice. Allowing

prosecutors to fill gaps in criminal laws would

8

“turn the normal construction of criminal

statutes upside down, replacing the doctrine of

lenity with a doctrine of severity.”

And this is precisely the situation the government

created with the Final Rule. The government created

a new crime out of thin air regarding what is now

considered a machinegun, despite telling everyone for

over a decade that a bumpstock was in fact not a

machinegun.3 “The rule of lenity carries into effect the

principle that only the legislature, the most democratic

and accountable branch of government, should decide

what conduct triggers these consequences.” Id. at 731

(Sutton, J., concurring). This is supported by the

holding in Wis. Cent., Ltd. v. United States, 138 S. Ct.

2067, 2074 (2018) that “Congress alone has the

institutional competence, democratic legitimacy, and

(most importantly) constitutional authority to revise

statutes in light of new social problems and

preferences.”

3

Circuit Judge Murphy, dissenting about why the Final Rule is not

sustainable, astutely summarized the problem with what the

federal government is doing: “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 bumpstock owners. [] Whether one favors or disfavors a policy

banning bump stocks, we should all be concerned with the

way in which the federal government has enacted that

policy into law.” Gun Owners of Am., Inc. v. Garland, No. 191298, 2021 U.S. App. LEXIS 35812, at *35 (6th Cir. Dec. 3, 2021)

(Murphy, J., dissenting) (citation omitted and emphasis added).

9

And we know that the Final Rule was a crimecreating statute because prior to the Final Rule,

bumpstocks were not machineguns, and thus legal.

But after the Final Rule went into effect, hundreds of

thousands of law-abiding owners were required to

destroy or surrender them or become instant criminals.

As the ATF stated, “[t]he rule clarifies the

regulatory definition of ‘machinegun’ to include bumpstock-type devices, and, therefore, subjects them to the

restrictions imposed by the NFA and GCA.” 83 Fed.

Reg. at 66520. Under ATF’s reasoning, any bumpstock

made after 1986 has always been a machinegun and

thus has always been banned. The retroactive reach of

the rule to illegalize the very same devices made and

sold during the 2008 to 2017 time period pursuant to

the ATF’s “ten letter rulings” is undeniable. In

response, the ATF dodges the question from

retroactivity to one of enforcement discretion.

A violation of 18 U.S.C. § 922(o) is not dependent on

an agency promise to withhold enforcement until a date

certain in the future. Congress, not the agency,

establishes the bounds of criminal law and Congress

has not made these devices illegal, prospectively or

otherwise. As this Court recently explained, the voidfor-vagueness doctrine “is a corollary of the separation

of powers—requiring that Congress, rather than the

executive or judicial branch, define what conduct is

sanctionable and what is not.” Dimaya, 138 S. Ct. at

1212. This doctrine ensures that the legislature, not

prosecutors or courts, determine the scope of the

criminal law. See Grayned v. City of Rockford, 408 U.S.

104, 108-09 (1972).

10

Here, in applying its rule retroactively to existing

devices that it indisputably previously allowed, the

ATF “makes an action, done before the passing of the

law, and which was innocent when done, criminal.”

Calder v. Bull, 3 U.S. (3 Dan.) 386, 390 (1798). It is

now construing the statute to include conduct that it

had previously viewed as innocent. By any measure,

applying the statute in this way is retroactive and thus

unauthorized by the enabling statutory authority that

governs ATF rulemaking. The retroactive reach of the

rule cannot be avoided by an agency promise to forego

enforcement in the exercise of prosecutorial discretion.

While a prosecutor has undeniable discretion, that

discretion cannot be used to change the meaning of

criminal law. See McDonnell v. United States, 136

S. Ct. 2355, 2373–74 (2016).

B. Bumpstocks are not Machineguns

A mere four days before the Notice of Proposed

Rulemaking4 (“NPRM”) was issued, the ATF was

involved in litigating a bumpstock-type case in the

Southern District of Indiana in July 2017. In Freedom

Ordnance Mfg., Inc. v. Thomas E. Brandon, Director of

the Bureau of Alcohol, Tobacco, Firearms and

Explosives, Civil Action No. 3:16-cv-243-RLY-MPB, the

ATF argued that bump stocks (of the type at issue

here) were not machineguns because bump firing:

requires the shooter to manually pull and push

the firearm in order for it to continue firing.

Generally, the shooter must use both hands –

4

83 Fed. Reg. 13442 (Notice of Proposed Rulemaking)

11

one to push forward and the other to pull

rearward – to fire in rapid succession. While the

shooter receives an assist from the natural recoil

of the weapon to accelerate subsequent

discharge, the rapid fire sequence in bump firing

is contingent on shooter input in pushing the

weapon forward, rather than mechanical input,

and is thus not an automatic function of the

weapon.

That argument was sustained. See ATF motion for

summary judgment, Dkt. entry 28 at page 22, filed in

Freedom Ordnance Mfg, Inc., v. Brandon, No. 16-234

2018 WL 7142127 (S.D. Indiana 2018).

However, this plain understanding of how a bump

stock type device works and why it is not a machinegun

evaporated after the Las Vegas incident and the ATF

was instructed to find a way to ban the devices.5 On

December 26, 2018, the government published the

Final Rule banning bump stocks as machineguns in the

Federal Register. See 83 Fed. Reg. 66514 (Dec. 26,

2018). Under the ATF’s new revised rule, 27 CFR

§ 478.11, it stated the term “machine gun” includes a

bump-stock-type device. But, if this new rule is so clear,

why must the agency include the sentence that the rule

specifically applies to bumpstocks? It is because even

5

The government’s position is reminiscent of George Orwell’s

classic novel 1984. Basically, the government announces to the

court what it is to believe and then demands the court march in

lock-step along with it - “In the end the Party would announce

that two and two made five, and you would have to believe it. It

was inevitable that they should make that claim sooner or later:

the logic of their position demanded it.” George Orwell, 1984.

12

under the Final Rule, bumpstocks still do not fit the

definition and are not machineguns and in fact, can

only be classified as machineguns because the ATF put

this one sentence in the Rule. It is the equivalent of

allowing an agency to declare a Honda Accord to be a

Lamborghini simply because it passed a rule declaring

it as such. Or maybe it would declare that the Accord,

with an internal combustion engine, is actually an

electric vehicle because it contains a battery.

In the Final Rule, the government took the position

that the terms “automatically” and “single function of

the trigger” are not ambiguous. In the Final Rule, the

government stated that “even if those terms are

ambiguous, this rule rests on a reasonable construction

of them.” See 83 FR 66527. This is a concession that

the government does not believe and does not consider

the terms ambiguous, and in fact, it has taken this

position in litigation. But, unable to square the new

definitions with the plain text of an almost century-old

statute, in order to uphold the Final Rule, all circuit

courts, except for the now-vacated Sixth Circuit panel

and an outlier Fifth Circuit decision6, were forced to

find that the term “automatically” and the phrase

“single function of the trigger” were ambiguous.

6

The Fifth Circuit’s decision came out a mere 11 days after the

Sixth Circuit’s deadlock. What appears to be an attempt to

insulate its ruling from a troublesome Chevron analysis (and this

Court’s cases holding that Chevron has no application to criminal

statutes), the Fifth Circuit held that the “Bump Stock Rule’s

interpretation of the NFA’s definition of ‘machinegun’ is the best

interpretation of the statute.” Cargill v. Garland, No. 20-51016,

2021 U.S. App. LEXIS 36905, at *21 (5th Cir. Dec. 14, 2021).

13

Indeed, if the terms are ambiguous, then that

ambiguity opens these provisions to serious attack for

vagueness under the Due Process Clause of the Fifth

Amendment. See Sessions v. Dimaya, 138 S. Ct. 1204,

1212 (2018) (“‘the prohibition of vagueness in criminal

statutes…is ‘essential’ of due process, required by both

‘ordinary notions of fair play and the settled rules of

law.’”) quoting Johnson v. United States, 135 S. Ct.

2551, 2557 (2015). This is, no doubt, the reason that

the government has never claimed that the provisions

are ambiguous.

In Codrea, first, the district court analyzed whether

“as the plaintiffs argue, ‘single function of the trigger’

means a mechanical act of the trigger, or whether, as

ATF argued in the rule, a ‘single function of the trigger’

means a single pull of the trigger from the perspective

of the shooter.” Guedes v. BATFE, 356 F. Supp. 3d 109,

130 (D.D.C. 2019). Because the district court adopted

the government’s version, the statute has now been

completely rewritten to focus on the trigger’s function

“from the perspective of the shooter.” This new

perspective upends what Congress intended in 1934

when it drafted the NFA and defined machinegun from

the perspective of the firearm itself. We know this

because the statute itself declares a “single function of

the trigger”, not a “single function of the trigger and

the intent of the person manipulating the trigger while

also applying forward pressure on the handguard.”7

7

Circuit Judge Henderson, of the D.C. Circuit Court of Appeals,

explains this additional operation as something more than what

the statute requires: “But that added physical pressure is

inconsistent with the statutory definition of a ‘machinegun,’ which

14

Then, the district court found that ATF “acted

reasonably in defining the phrase ‘single function of the

trigger’ to mean a ‘single pull of the trigger and

analogous motions.” Id. at 131. But “analogous

motions” is not in the statutory language which focuses

on “automatic” fire from “single function of the trigger.”

In fact, the ATF made the statute ambiguous now by

including “analogous motions” in its new definition

which is itself not further defined and instead left to

the reader’s (and a future ATF’s) imagination. It is

unnecessary surplusage which arguably makes the

statute unconstitutionally vague under Dimaya and

Johnson. The Sixth Circuit panel opinion correctly

determined that the language is focused on the trigger

of the firearm and not the shooter. See Gun Owners of

Am., Inc. v. Garland, 992 F.3d 446, 471 (6th Cir. 2021)

reh’g en banc granted, panel vacated, superseded by

Gun Owners of Am., Inc. v. Garland, 2021 U.S. App.

LEXIS 35812 (6th Cir.) (6th Cir. Mich., Dec. 3, 2021)

(“Indeed, the entire definition focuses exclusively on

the firearm’s design and capability. At no point does

the definition mention the shooter or the shooter’s

actions”).

The best interpretation of the statute as to why a

bumpstock is not a machinegun, as consistently held by

the government for over ten years, is what it refered to

in the classification letters: “The stock has no

fires multiple rounds with a self-acting mechanism effected

through a single pull of the trigger simpliciter. In short, the statute

uses ‘pull’ and the Rule—invalidly—uses ‘pull plus.’” Guedes v.

BATFE, 440 U.S. App. D.C. 141, 186, 920 F.3d 1, 46, 762 F. App’x

7, 9 (2019) (Henderson, J., dissenting in part).

15

automatically functioning mechanical parts or springs

and performs no automatic mechanical functions when

installed. In order to use the installed device, the

shooter must apply constant forward pressure with the

non-shooting hands and constant rearward pressure

with the shooting hand…” This is a far cry from their

current 180-degree conclusion that yes, in fact a

bumpstock allows a shooter to automatically fire a

weapon because everything the agency said years ago

is now wrong in light of the new political pressure the

agency faced.

CONCLUSION

The government has no authority to rewrite a

criminal statute to fit its current agenda. Despite the

ATF’s attempt to the contrary, “Congress alone has the

institutional competence, democratic legitimacy, and

(most importantly) constitutional authority to revise

statutes in light of new social problems and

preferences. Until it exercises that power, the people

may rely on the original meaning of the written law.”

Wis. Cent., Ltd. v. United States, 138 S. Ct. 2067, 2074

(2018). While individuals may or may not like bump

stocks, that “new social problem [or] preference[]” is

properly left to Congress to declare such and not an

unelected agency which has stated over and over in the

past that is has no authority to regulate bump stocks.

This Court should grant Petitioners’ writ of

certiorari.

16

Respectfully submitted,

ALAN ALEXANDER BECK

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck@gmail.com

STEPHEN D. STAMBOULIEH

Counsel of Record

STAMBOULIEH LAW, PLLC

P.O. Box 428

Olive Branch, MS 38654

(601) 852-3440

Stephen@sdslaw.us

Counsel for Amici Curiae

April 6, 2022