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, ET AL, PETITIONERS,

v.

MERRICK B. 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 STATES OF

MONTANA, WEST VIRGINIA, AND 20 OTHER

STATES IN SUPPORT OF PETITIONERS

_____________

AUSTIN KNUDSEN

Attorney General

KRISTIN HANSEN

Lieutenant General

DAVID M.S. DEWHIRST

Solicitor General

*Counsel of Record

CHRISTIAN B. CORRIGAN

Assistant Solicitor

General

MONTANA DEPARTMENT

OF JUSTICE

215 N Sanders

Helena, MT 59601

David.Dewhirst@mt.gov

(406) 444-2026

Counsel for Amicus Curiae State of Montana

(Additional Counsel listed on signature page)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION AND INTEREST OF AMICI

CURIAE ................................................................... 1

SUMMARY OF ARGUMENT ..................................... 3

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

I.

The Court should clarify the interplay between Chevron and the rule of lenity ................... 6

A. Babbitt doesn’t mandate Chevron deference for criminal statutes ............................... 6

B. The rule of lenity supersedes Chevron

analysis ......................................................... 11

II. Applying Chevron to a criminal statute implicates

serious

separation-of-powers

concerns ............................................................... 15

III. An agency’s interpretation of a statute

should receive no deference when it further

diminishes fundamental rights .......................... 18

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Abramski v. United States,

573 U.S. 169 (2014) ....................................... passim

Aposhian v. Barr,

958 F.3d 969 (10th Cir. 2020) ................................. 7

Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021) ............................... 16

Babbitt v. Sweet Home Chapter of Communities

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

Barnhart v. Walton,

535 U.S. 212 (2002) ............................................... 18

Caetano v. Massachusetts,

577 U.S. 411 (2016) ............................................... 23

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ..................... 13, 16, 18

Chevron USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)................. passim

Crandon v. United States,

494 U.S. 152 (1990) ......................................... 12, 17

Crowell v. Benson,

285 U.S. 22 (1932) ................................................. 19

iii

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................... 23

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ..................................... 12, 13

Ezell v. City of Chi.,

651 F.3d 684 (7th Cir. 2011) ........................... 18, 19

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................... 22

Glob. Tel*Link v. FCC,

866 F.3d 397 (D.C. Cir. 2017) ............................... 21

Guedes v. ATF,

920 F.3d 1 (D.C. Cir. 2019) ..................................... 7

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

19 F.4th 890 (6th Cir. 2021) .......................... passim

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

2021 U.S. App. LEXIS 35812

(6th Cir. Dec. 3, 2021) ........................................... 12

Gun Owners of America, Inc. v. Garland,

992 F.3d 446 (6th Cir. 2021) ................... 2, 3, 16, 22

Jackson v. City & Cnty. of S.F.,

746 F.3d 953 (9th Cir. 2014) ................................. 19

King v. Burwell,

135 S. Ct. 2480 (2015) ........................................... 19

iv

Lockhart v. United States,

577 U.S. 347 (2016) ............................................... 12

Mayo Found. for Med. Educ. & Research v. United

States, 562 U.S. 44 (2011) ..................................... 20

McDonald v. City of Chi.,

561 U.S. 742 (2010) ........................................... 5, 23

Michigan v. EPA,

576 U.S. 743 (2015) ............................................... 21

Miller v. Bonta,

No. 19-cv-1537 BEN (JLB),

2021 U.S. Dist. LEXIS 105640

(S.D. Cal. June 4, 2021)............................. 23, 24, 25

Muscarello v. United States,

524 U.S. 125 (1998) ............................................... 11

Negusie v. Holder,

555 U.S. 511 (2009) ......................................... 11, 21

Reno v. Koray,

515 U.S. 50 (1995) ................................................. 11

Silva v. Garland,

27 F.4th 95 (1st Cir. 2022) ...................................... 7

Smith v. United States,

508 U.S. 223 (1993) ............................................... 11

v

United States v. Apel,

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

United States v. Bass,

404 U.S. 336 (1971) ......................................... 16, 19

United States v. Cong. of Indus. Orgs.,

335 U.S. 106 (1948) ................................................. 3

United States v. Grimaud,

220 U.S. 506 (1911) ............................................... 10

United States v. Henry,

688 F.3d 637 (9th Cir. 2012) ................................. 25

United States v. Hudson,

11 U.S. 32 (1812) ..................................................... 4

United States v. Miller,

307 U.S. 174 (1939) ............................................... 24

United States v. O'Hagan,

521 U.S. 642 (1997) ................................................. 4

United States v. Pennsylvania Indus. Chem. Corp.,

411 U.S. 655 (1973) ............................................... 14

United States v. Thompson/Center Arms Co.,

504 U.S. 505 (1992) ............................................... 15

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ........................... 16, 17

vi

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302, 134 S. Ct. 2427 (2014) .............. 21, 22

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................... 23

Whitman v. Am. Trucking Ass'ns,

531 U.S. 457 (2001) ..................................... 5, 19, 25

Whitman v. United States,

574 U.S. 1003 (2014) ................................. 10, 16, 17

Wooden v. United States,

No. 20-5279 (Mar. 7, 2022) ............................ passim

Statutes

18 U.S.C. § 922(o)(1) ................................................ 8, 9

26 U.S.C. § 5821 ........................................................ 15

Firearm Owners Protection Act of 1986, Pub. L.

No. 99-308, 100 Stat. 449 (1986) (amending

18 U.S.C. §§ 921-29) ................................................ 2

Gun Control Act of 1968 (GCA) Pub. L. No. 90618, 82 Stat. 1213 (amending 18 U.S.C.

§§ 921-28) ................................................................. 2

National Firearms Act of 1934 (NFA) Pub. L.

No. 73-474, 48 Stat. 1236 (codified at 26

U.S.C. § 5845(b)) ...................................................... 2

vii

Regulations

Bump-Stock-Type Devices, 83 Fed. Reg. 66,514

(Dec. 26, 2018) ................................................... 2, 23

Other Authorities

1 William Blackstone, Commentaries on the

Laws of England (4th Ed. 1770) ........................... 11

2 Blackstone's Commentaries (St. George Tucker

ed., 1803) ................................................................ 23

Kent Barnett & Christopher J. Walker, Chevron

Step Two’s Domain, 93 NOTRE DAME L. REV.

1441 (2018) ............................................................ 17

Blackstone 4 Commentaries on the Laws of

England (1769) ...................................................... 23

Paul J. Larkin, Jr., Chevron and Federal

Criminal Law, 32 J. L. & POL. 211 (2017) ............ 17

Antonin Scalia, Foreword: The Importance of

Structure in Constitutional Interpretation, 83

NOTRE DAME L. REV. 1417 (2008) ........................... 6

ANTONIN SCALIA, SCALIA SPEAKS (Christopher

Scalia, et al. eds., 2017) .......................................... 1

Antonin Scalia & Brian A. Garner, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS

(2012) ............................................. 11, 12, 13, 18, 20

viii

Cass Sunstein, Chevron Step Zero, 92 VA. L.

REV. 187 (2006) ...................................................... 18

The Adventure, 1 F. Cas. 202, F. Cas. No. 93

(No. 93) (CC Va. 1812) (Marshall, C. J.) ............... 11

THE FEDERALIST NO. 51 (J. Madison) ..................... 1, 6

THE FEDERALIST NO. 84 (C. Rossiter ed. 1961)

(A. Hamilton) ........................................................... 4

The Legal Framework of the Endangered

Species Act (ESA), Congressional Research

Service

June

5,

2019,

https://fas.org/sgp/crs/misc/IF11241.pdf ................. 7

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

Amici Curiae States of Montana, West Virginia,

Alabama, Alaska, Arizona, Arkansas, Idaho, Indiana,

Kansas, Kentucky, Louisiana, Mississippi, Nebraska,

New Hampshire, North Dakota, Ohio, Oklahoma,

South Carolina, South Dakota, Texas, Utah, and Wyoming (“the States”), represented by their respective

Attorneys General, seek to preserve the fundamental

and inalienable rights of their citizens to keep and

bear arms. This right is essential to the maintenance

of a free republic. See ANTONIN SCALIA, SCALIA

SPEAKS 32 (Christopher Scalia, et al. eds., 2017)

(“Our Founders, having witnessed firsthand the indignities and abuses that overeager governments can

impose on their own citizens, believed in a citizen’s

right to bear arms for protection against, among other things, the state itself.”). Yet here, the Bureau of

Alcohol, Tobacco, and Firearms’ (ATF) erroneous

rulemaking would abridge that right by immediately

transforming hundreds of thousands of law-abiding

gun owners in the States into criminals. See Wooden

v. United States, No. 20-5279, slip op. at 49 (Mar. 7,

2022) (Gorsuch, J., concurring) (“Any new national

laws restricting liberty require the assent of the people’s representatives and thus input from the

country’s “many parts, interests and classes.” (quoting THE FEDERALIST NO. 51, at 324 (J. Madison)).

Actions like the ATF’s do not just violate important

principles of administrative law. They also illustrate

how the government can endanger fundamental

Amici timely notified counsel for all parties of their intention

to file this brief.

1

2

rights through creeping, incremental, and seemingly

benign regulatory depredations.

In Gun Owners of America, Inc. v. Garland, 992

F.3d 446 (6th Cir. 2021), a panel of the Sixth Circuit

correctly concluded that bump stock accessories do

not transform commonly-used semi-automatic firearms into “machineguns” that are banned by the

National Firearms Act of 1934 (NFA) Pub. L. No. 73474, 48 Stat. 1236 (codified at 26 U.S.C. § 5845(b)),

Gun Control Act of 1968 (GCA) Pub. L. No. 90-618,

82 Stat. 1213 (amending 18 U.S.C. §§ 921-28), and

the Firearm Owners Protection Act of 1986, Pub. L.

No. 99-308, 100 Stat. 449 (1986) (amending 18 U.S.C.

§§ 921-29). The ATF’s Final Rule on Bump-StockType Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018)

(“Final Rule”) thus contravened federal law—as well

as longstanding ATF policy—by classifying bump

stocks as machine guns and informing owners of

bump stocks that they must surrender or destroy

their bump stocks to avoid criminal liability.

But the Sixth Circuit vacated the panel’s opinion

when the full court granted the government’s Petition for Rehearing En Banc. The en banc court,

however, split evenly, so it could only issue an order

affirming the district court. Gun Owners of Am., Inc.

v. Garland, 19 F.4th 890, 896 (6th Cir. 2021). A

strong, eight-judge dissent accompanied the court’s

order. Id. at 910–28 (Murphy, J., dissenting) Among

other things, the dissent explained why a bump stock

would not qualify as a “machinegun” under the plain

text of the statute—and why Chevron deference

3

would not apply. Id. In particular, Congress had not

given the ATF the power to define a regulatory crime,

and the statute was unambiguous after applying ordinary canons of construction (including the rule of

lenity). Id. Judge White, the panel’s lone dissenter,

penned an en banc concurrence joined by four judges.

Id. at 896. (White, J., concurring); Garland, 992 F.3d

at 475 (White, J. dissenting).

SUMMARY OF ARGUMENT

Semiautomatic rifles are some of America’s most

popular firearms. Millions of law-abiding gun owners depend on these rifles for security, safety, and

sporting purposes. Bump stocks replace the standard stock of these firearms and assist the shooter in

“bump firing,” which increases the rate of fire. They

do not transform semi-automatic rifles into automatic machineguns.

This Court should not defer to the ATF’s interpretation of “machinegun” to include bump stocks.

Deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865

(1984), should not apply to agency interpretations of

criminal statutes. See United States v. Cong. of Indus. Orgs., 335 U.S. 106, 142 (1948) (“Blurred

signposts to criminality will not suffice to create it.”)

(Rutledge, J., concurring). Instead, under the rule of

lenity, the Court should interpret any ambiguity in

the statute in favor of liberty. The en banc dissent

aptly noted that, “[s]ince the early days of our Republic, it has been a bedrock legal principle that our

government cannot criminalize conduct and send

4

people to prison except through democratically

passed laws that have made it through both Houses

of Congress and been signed by the President.” Garland, 19 F.4th at 910 (Murphy, J., dissenting) (citing

United States v. Hudson, 11 U.S. 32, 34 (1812)). “As

the framers understood, “subjecting … men to punishment for things which, when they were done, were

breaches of no law … ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.”

Wooden, slip. op. at 48 (Gorsuch, J., concurring)

(quoting THE FEDERALIST NO. 84, at 511–512 (C. Rossiter ed. 1961) (A. Hamilton)). Nor does Babbitt v.

Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), compel deference to the

ATF. See Garland, 19 F.4th at 900–02 (White, J.,

concurring). Babbitt didn’t deal with a criminal statute; nor did it apply a traditional Chevron analysis.

To be sure, the Court’s messaging on these complicated issues has not always been crystal clear.

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

(The Court “ha[s] never held that the Government’s

reading of a criminal statute is entitled to any deference.”), with United States v. O'Hagan, 521 U.S. 642,

673 (1997) (applying Chevron to a legislative rule

with criminal applications and penalties). The Court

should thus take this opportunity to remove all doubt

that “criminal laws are for courts, not for the Government, to construe.” Abramski v. United States,

573 U.S. 169, 191 (2014).

The Court also not defer to the ATF’s interpretation because it implicates the fundamental right to

5

keep and bear arms. The Final Rule effectively

transforms commonly owned firearms into banned

machineguns simply because of the use of nonmechanical bump stock accessories. This interpretation categorically expands the text of the criminal

statute in a way that Congress couldn’t possibly have

intended. See Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 468 (2001). And it expands criminal liability at the expense of Second Amendment rights,

diminishing the latter absent a sufficient and compelling justification. When the ATF—or any agency—

invades protected rights by interpreting statutes too

broadly, this Court should step in. See Abramski,

573 U.S. at 191.

An inherent tension exists between affording

Chevron deference to an agency’s interpretation of

criminal statutes and the rule of lenity. See Garland,

19 F.4th at 900 n.6 (White, J., concurring). The

Court should grant the petition and clarify that federal agencies may not expand the scope of a

Congressionally-enacted criminal statute through

regulatory lawmaking.

ARGUMENT

Many things make the United States exceptional.

But only a few things operate to preserve it. “[T]he

right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered

liberty.” McDonald v. City of Chi., 561 U.S. 742, 778

(2010) (emphasis added). But as the late Justice

Scalia was fond of pointing out, a Bill of Rights isn’t

worth the paper it’s printed on without a mechanism

6

for enforcing it. See Antonin Scalia, Foreword: The

Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1418 (2008)

(“Structure is everything.”). One such mechanism is

the separation of powers. See THE FEDERALIST NO.

51, at 349. (J. Cooke ed. 1961) (J. Madison) (“[T]he

great security against a gradual concentration of the

several powers in the same department consists in

giving to those who administer each department the

necessary constitutional means and personal motives

to resist encroachments of the others.”). Executive

agencies enforce laws passed by Congress. Although

Congress sometimes delegates authority to the agencies to fill in gaps or lend expertise in complicated

matters, these agencies are not permitted to use their

limited policymaking authority to invent new law—

particularly when their decisions impose criminal

penalties and implicate fundamental constitutional

rights.

I. The Court should clarify the interplay between Chevron and the rule of lenity.

A. Babbitt doesn’t mandate Chevron deference for criminal statutes.

This Court has never held that Chevron applies to

criminal statutes. See Abramski, 573 U.S. at 191

(citing United States v. Apel, 571 U.S. 359, 369

(2014)). The en banc concurrence incorrectly relied

on Babbitt to conclude that Chevron applies to nearly

all legislative rules that go through notice-andcomment rulemaking—including those interpreting

criminal statutes. Garland, 19 F.4th at 900–04

7

(White, J., concurring). And the concurrence is hardly the first court to misread Babbitt in that way. See,

e.g., Silva v. Garland, 27 F.4th 95, 112 (1st Cir.

2022); Aposhian v. Barr, 958 F.3d 969, 983 (10th Cir.

2020); Guedes v. ATF, 920 F.3d 1, 25 (D.C. Cir. 2019).

The Court should grant certiorari to clarify Babbitt’s

limited applicability.

To be clear, Babbitt didn’t involve a criminal statute.

Rather, it concerned criminal penalties

attendant to a massive civil enforcement scheme administered, in part, by the Department of Interior—

the Endangered Species Act (ESA). See Babbitt, 515

U.S. at 690; see generally The Legal Framework of

the Endangered Species Act (ESA), Congressional

Research

Service

June

5,

2019,

https://fas.org/sgp/crs/misc/IF11241.pdf. So to the extent it can be called an agency deference case at all,

Babbitt was more about an agency’s traditional authority to interpret ambiguous civil statutes—with a

few ancillary criminal consequences that would necessarily flow from that interpretation.

Although the Babbitt Court agreed with the agency’s statutory interpretation, it didn’t engage in a full

Chevron analysis. Nor did the Court suggest that

Chevron would apply to criminal statutes broadly.

Babbitt, 515 U.S. at 703 (noting only that the Court

“owe[d] some degree of deference to the [agency’s]

reasonable interpretation”). The Court instead found

the agency’s interpretation reasonable under the

plain text, structure, and purpose of the statute. Id.

at 703–05. And because “Congress delegated broad

8

administrative and interpretive power to the [agency],” id. at 708, the Court deferred to the agency’s

reasonable interpretation. Id. at 603. The statutory

text and structure revealed that Congress intended

the agency—which could leverage its “expertise and

attention to detail that exceeds the normal province

of Congress”—to make complex policy choices about

“defining and listing [of] endangered and threatened

species.” Id. at 708. Given that the challenged interpretation was reasonable and that Congress had

“entrusted the [Agency] with broad discretion,” the

Court declined to disturb the agency’s interpretation.

See id. at 708.

Courts may not, however, pay similar courtesies

to agency interpretations of criminal statutory

schemes, and Babbitt recognized as much. See id. at

704 n.18 (confirming that the Court’s analysis was

only aimed at a “facial challenge[] to administrative

regulations” rather than a criminal prosecution). To

be sure, Babbitt cited generally to Chevron. See id. at

703. But it conducted no Chevron analysis, and it independently concluded that the agency’s statutory

interpretation was textually reasonable before remarking that it owed some undefined level of

deference to the agency’s interpretation. See id. at

697–701, 703–04, 708. Babbitt, in other words, is

sharply limited to its specific statutory context. See

Garland, 19 F.4th at 924 (Murhpy, J., dissenting)

(“Unlike the [ESA] in Babbitt, however, the Gun

Control Act and the [NFA] do not delegate to the Attorney General the specific power to issue regulations

to ‘implement’ the ‘machinegun’ ban in 18 U.S.C.

9

§ 922(o)(1) or expressly make a violation of those implementing regulations a crime.”).

It did not

introduce an entirely novel rule that Chevron deference is due whenever courts review criminal statutes

that agencies administer.

The Court’s more recent decisions in Apel and

Abramski also support this narrow reading of Babbitt. In Apel, this Court clarified that it “ha[s] never

held that the Government’s reading of a criminal

statute is entitled to any deference.” 571 U.S. at 369.

It agreed again in Abramski, explaining why agencies’

criminal

statutory

interpretations

are

immaterial:

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 … 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.

573 U.S. at 191. Apel and Abramski leave only a

sharply confined reading of Babbitt. Whatever doubt

Babbitt once cast on the question, subsequent cases

have confirmed that Chevron doesn’t apply to criminal statutes.

Congress delimits the totality of

criminal conduct; executive agencies may go no further.

10

The en banc concurrence banishes discussion of

Apel and Abramski to a footnote. Garland, 19 F.4th

at 900 n.6 (White, J., concurring). It categorizes

them as irrelevant because they did not involve legislative regulations (that is, rules that bind the public

and have the force of law). Id. But the concurrence’s

dichotomy between legislative and interpretive rules

is of no moment, especially given that neither Apel or

Abramski relied on a rule’s interpretive nature in refusing deference. What matters is whether the

statute is criminal in nature. If the answer is yes,

then Chevron doesn’t apply regardless of whether the

agency interpreting the statute has done so through

notice-and-comment rulemaking. Apel and Abramski

make this clear. 2

As Justice Scalia wrote, “[t]he best that one can

say … is that in Babbitt [], [the Court] deferred, with

scarcely an 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, 1005

(2014) (Scalia, J., respecting the denial of cert.). But

Babbitt has nevertheless flummoxed the lower courts

for years now—so the Court should take this opportunity to set things right.

2 This is not to say that executive agencies play no role in defin-

ing and interpreting criminal statutes—when Congress has

“distinctly” delegated authority to do so. See United States v.

Grimaud, 220 U.S. 506, 519 (1911). Agencies interpret and enforce criminal statutes all the time. But that doesn’t mean

courts owe deference to those interpretations.

11

B. The rule of lenity supersedes Chevron

analysis.

“The ‘rule of lenity’ is a new name for an old

idea—the notion that ‘penal laws should be construed

strictly.’” Wooden, slip. op at 45 (Gorsuch, J., concurring) (quoting The Adventure, 1 F. Cas. 202, 204, F.

Cas. No. 93 (No. 93) (CC Va. 1812) (Marshall, C. J.));

see also 1 William Blackstone, Commentaries on the

Laws of England 88 (4th Ed. 1770) (“Penal statutes

must be construed strictly”) Although a longestablished canon of construction, this Court has not

set a uniform method for applying it. See Scalia &

Garner, supra, at 298–99 (citing e,g., Reno v. Koray,

515 U.S. 50, 60 (1995); Smith v. United States, 508

U.S. 223, 239 (1993); Muscarello v. United States, 524

U.S. 125, 139 (1998)); see also Wooden, slip op. at 50

(Gorsuch, J., concurring) (noting that “the most basic

of these controversies” surrounding the rule of lenity

is “the degree of ambiguity required to trigger [it]”).

Nor has this Court been consistent with the interplay

between it and Chevron. That’s why it should now

clarify that courts must apply the rule of lenity before

conducting Chevron analysis. See, e.g., Negusie v.

Holder, 555 U.S. 511, 518 (2009) (“[T]he rule of lenity

… may be persuasive in determining whether a particular agency interpretation is reasonable.”); see also

Wooden, slip op. at 53–54 (Gorsuch, J., concurring)

(“The right path is the more straightforward one.

Where the traditional tools of statutory interpretation yield no clear answer, the judge’s next step isn’t

to legislative history or the law’s unexpressed purposes. The next step is to lenity.”).

12

Like Chevron, the rule of lenity presumes that

two reasonable interpretations of a statute exist. But

the similarity stops there. The rule of lenity gives

the benefit of the doubt to a criminal defendant instead of the government. But Chevron is the mirror

opposite: it gives the benefit of the doubt to the agency, even if an individual might reach a reasonable,

but different, interpretation of a rule. The doctrines

are thus operating at cross-purposes: giving “persuasive effect” to the government’s interpretation of

criminal statutes “would turn the normal construction of criminal statutes upside-down, replacing the

doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 177-78 (1990)

(Scalia, J., concurring in the judgement).

The en banc concurrence would only invoke the

rule of lenity ‘“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.’” Gun Owners

of Am., Inc. v. Garland, 2021 U.S. App. LEXIS 35812,

at *19 n.10 (6th Cir. Dec. 3, 2021) (quoting Lockhart

v. United States, 577 U.S. 347, 361 (2016)). There’s

nothing wrong with this pronouncement as a general

matter. See Scalia & Garner, supra, at 298. But in

this context, it reverses the hierarchy by employing

Chevron step two analysis as part of the initial method of construction—relegating the rule of lenity to

second-class status. Rather, to trigger Chevron analysis, courts must first apply the traditional tools of

statutory construction, Epic Sys. Corp. v. Lewis, 138

13

S. Ct. 1612, 1630 (2018) (citing Chevron 467 U.S. at

843 n.9)—including the rule of lenity.

Babbitt itself implied that the rule of lenity would

have implications in other contexts. See 515 U.S. at

704 n.18. The en banc concurrence recognized that

“the Babbitt Court [] hypothesized that a regulation

may ‘provide such inadequate notice of potential liability so as to offend the rule of lenity.”’ Garland, 19

F.4th at 901 (White, J., concurring) (quoting Babbitt,

515 U.S. at 704 n.18). But it went no further, rationalizing that the language was “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.

First, that’s an incomplete explanation—the rule

of lenity “does not coincide with the constitutional

requirement of fair notice.” Antonin Scalia & Brian

A. Garner, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 296–97 (2012). It’s primarily “a rule of

statutory construction whose purpose is to help give

authoritative meaning to statutory language.” Id. at

297–98. Important concepts like fair notice and separation of powers are implicated when courts don’t

utilize it in the regular course of statutory interpretation.

Second, as mentioned above, Babbitt failed to substantively address the rule of lenity. That failure is

another reason why the Court should give Babbitt a

narrow reading in the criminal context. See Carter v.

Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir.

14

2013) (Sutton, J., concurring) (suggesting that Chevron deference does not defeat the rule of lenity).

Third, even if Judge White correctly read Babbitt’s holding, the regulation at issue in Babbitt is

distinguishable from the Bump-Stock Rule. “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.”’ Garland, 19 F.4th at 925

(Murphy, J., dissenting) (quoting Babbitt, 515 U.S. at

690, 691 n.2, 704 n.18).

In contrast, “the BumpStock Rule departed from the ATF’s decade-long

view.” Id. at 925. Because of that departure, “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.”

Id.; see also Wooden, slip op. at 48 (Gorsuch, J., concurring) (“[L]enity’s emphasis on fair notice … is

about protecting an indispensable part of the rule of

law—the promise that, whether or not individuals

happen to read the law, they can suffer penalties only

for violating standing rules announced in advance.”).

“[T]raditional notions of fairness inherent in our system of criminal justice prevent the Government from

proceeding with [a] prosecution” when the accused

relied on longstanding administrative “guidance”

about the “meaning and requirements of the [criminal] statute” in question.

United States v.

Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674,

(1973).And truth be told, a rule favoring lenity over

Chevron deference shows greater fidelity to the

Court’s precedents than Babbitt did. Three years be-

15

fore Babbitt, in United States v. Thompson/Center

Arms Co., the Court interpreted the phrase “making”

a “firearm” as used in the NFA. 504 U.S. 505 (1992)

(interpreting 26 U.S.C. § 5821). Applying the rule of

lenity, the plurality construed the statute narrowly

under the rule of lenity; the defendant had not

“made” a firearm by packaging an unregulated pistol

with a kit that allowed for conversion into a firearm

that would be regulated under federal law. Id. at

517-18. The plurality did not defer to ATF’s contrary

interpretation of the text. Id.

Even the concurrence below recognized that

“there is an implied tension between the two lines of

cases” of Apel/Abramski and Chevron/Babbitt. 19

F.4th at 900 (White, J., concurring). But it demurred

that it must follow Chevron and Babbitt, reasoning

that it’s “for the Supreme Court to resolve.” Id. This

Court should grant review to take on that task. It

should hold that Chevron does not erase the rule of

lenity’s longstanding protection against surprise

criminal liability.

II. Applying Chevron to a criminal statute

implicates serious separation-of-powers

concerns.

“Closely related to its fair notice function is lenity’s role in vindicating the separation of powers.”

Wooden, slip op. at 48 (Gorsuch, J., concurring). This

Court and others have admonished both the executive and judicial branches not to intrude on

Congress’s power to determine criminal activity. See

16

e.g., id. at 49; United States v. Wiltberger, 18 U.S. (5

Wheat.) 76, 95 (1820); Whitman, 574 U.S. at 1004.

The “ATF has no authority to substitute its moral

judgment concerning what conduct is worthy of punishment for that of Congress.”

Aposhian v.

Wilkinson, 989 F.3d 890, 900 (10th Cir. 2021) (Tymkovich, C.J., dissenting from denial of rehearing en

banc); accord Gun Owners, 992 F.3d at 462 (“Whether ownership of a bump-stock device should be

criminally punished is a question for our society …. It

is not the role of the executive—particularly the unelected administrative state—to dictate to the public

what is right and what is wrong.”). To defer to an

agency’s interpretation of a criminal statute would

threaten the “horizontal separation of powers.”

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

also United States v. Bass, 404 U.S. 336, 348, (1971)

(per Marshall, J.) (“[B]ecause of the seriousness of

criminal penalties, and because criminal punishment

usually represents the moral condemnation of the

community, legislatures and not courts should define

criminal activity”). As Chief Justice Marshall explained:

[The rule of lenity] is founded on the

tenderness of the law for the rights of

individuals; and on the plain principle

that the power of punishment is vested

in the legislative, not in the judicial department. It is the legislature, not the

Court, which is to define a crime, and

ordain its punishment.

17

Wiltberger, 18 U.S. at 95; see also Wooden, slip. op. at

49 (Gorsuch, J., concurring) (lenity helps safeguard

the separation of powers by “preventing judges from

intentionally or inadvertently exploiting ‘doubtful’

statutory ‘expressions’ to enforce their own sensibilities.”).

In practice, this would allow agencies like the Department of Justice—which houses the ATF—to

interpret and enforce criminal statutes more and

more broadly until a court concluded its interpretation was unreasonable. See Whitman, 574 U.S. at

1004 (“With deference to agency interpretations of

statutory provisions to which criminal prohibitions

are attached, federal administrators can in effect

create (and uncreate) new crimes at will, so long as

they do not roam beyond ambiguities that the laws

contain.”); cf. Kent Barnett & Christopher J. Walker,

Chevron Step Two’s Domain, 93 NOTRE DAME L. REV.

1441, 1459 (2018) (finding that agency interpretations prevail under Chevron in over 75% of cases);

Paul J. Larkin, Jr., Chevron and Federal Criminal

Law, 32 J. L. & POL. 211, 212 (2017) (“[S]ometimes

who adopts a rule of law is more important than

what that rule provides.”). In other words, those

charged with prosecuting crimes would become increasingly responsible for defining them. Although

prosecutors bear “a very specific responsibility” to interpret a statute “in order to decide when to

prosecute,” courts “have never thought that the interpretation of those charged with prosecuting

criminal statutes is entitled to deference.” Crandon

v. United States, 494 U.S. 152, 177 (1990) (Scalia, J.,

18

concurring in the judgment, cited with approval in

Apel, 571 U.S. at 369

This muddled system of criminal justice would be

“preposterous,” blending prosecutorial and adjudicatory power in a way that “would violate established

traditions and threaten liberty itself.” Cass Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 210

(2006). “[I]f agencies are free to ignore the rule of

lenity, the state could make an act a crime in a remote statement issued by an administrative agency.

The agency’s pronouncement need not even come in a

notice-and-comment rule. All kinds of administrative

documents, ranging from manuals to opinion letters,

sometimes receive Chevron deference.” Carter v.

Welles-Bowen Realty, Inc., 736 F.3d 722, 731-32 (6th

Cir. 2013) (Sutton, J., concurring) (citing Barnhart v.

Walton, 535 U.S. 212, 221-22 (2002)); see also Scalia

& Garner, supra, at 301 (“[A] fair system of laws requires precision in the definition of offenses and

punishments. The less the courts insist on precision,

the less legislatures will take the trouble to provide

it.”).

III. An agency’s interpretation of a statute

should receive no deference when it further diminishes fundamental rights.

The ATF’s interpretation of § 5845(b) should also

garner no deference because the statute regulates an

area affecting the fundamental right to keep and

bear arms. See Ezell v. City of Chi., 651 F.3d 684,

703 (7th Cir. 2011) (heightened scrutiny applies to

governmental actions alleged to infringe enumerated

19

constitutional rights such as the Second Amendment); cf. Jackson v. City & Cnty. of S.F., 746 F.3d

953, 967 (9th Cir. 2014) (restrictions on ammunition

may burden the core Second Amendment right of

self-defense); Ezell, 651 F.3d at 704 (holding that the

right to possess firearms implied a corresponding

right to access firing ranges for the purpose of maintaining firearm proficiency). As discussed above,

Chevron should not apply to criminal statutes. But

even under the Chevron framework, implication of a

fundamental right should render ATF’s interpretation unreasonable.

Although somewhat novel, several of the Court’s

existing doctrines support this rationale. For example, this Court has long recognized in the

constitutional doubt canon that courts should construe statutes to avoid interpretations—even

reasonable ones—that raise serious constitutional

concerns. See Crowell v. Benson, 285 U.S. 22, 62

(1932). Courts rightly assume that Congress avoids

legislating by inference when an interpretation triggers separation of powers concerns. Cf. United States

v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress

conveys its purpose clearly, it will not be deemed to

have significantly changed the federal-state balance.

Congress has traditionally been reluctant to define as

a federal crime conduct readily denounced as criminal by the States.”). Elsewhere, when deciding

between competing interpretations, the Court has

recognized that “Congress does not … hide elephants

in mouseholes.” Whitman, 531 U.S. at 468; see also

King v. Burwell, 135 S. Ct. 2480, 2491, 2494 (2015)

20

(courts do not apply Chevron deference to statutory

interpretations that implicate “major questions”).

Chevron and the rule of lenity are, likewise, based

on how courts choose between two interpretations of

a statute. These doctrines and canons all overlap to

some extent—based largely on the idea that certain

circumstances tilt the interpretive scales against the

government’s power. See, e.g., Scalia & Garner, supra, at 426 (arguing that “treating [the rule of lenity]

as a clear statement rule would comport with the

original basis for the canon); id. at 426 (noting that

the constitutional doubt canon is an example of the

clear statement rule).

The States suggest that any notion of an interpretation’s reasonableness under Chevron must

necessarily include consideration of fundamental

rights. Mayo Found. for Med. Educ. & Research v.

United States, 562 U.S. 44, 58 (2011) (quoting Chevron, 467 U.S. at 844) (“[T]he second step of Chevron

... asks whether the … rule is a ‘reasonable interpretation’ of the statutory text.”).

That is,

interpretations like the ATF’s should be per se unreasonable when they impair fundamental rights—and

particularly so in the criminal law context. At the

very least, the Court should grant the petition to provide much-needed clarity between Chevron and the

rule of lenity when constitutional rights are implicated.

Chevron deference is premised on the notion that

the statute in question is “ambiguous with respect to

the specific issue.” Chevron, 467 U.S. at 843. In the

21

ordinary case, the “clear statement” rule suggests

that if a statute is ambiguous whether it implicates a

fundamental constitutional right, then reviewing

courts should err on the side of liberty. Courts already do this in the criminal law context under to the

rule of lenity. Negusie, 555 U.S. at 518 (“[T]he rule of

lenity … may be persuasive in determining whether

a particular agency interpretation is reasonable.”).

Chevron allows agencies to flip that rule on its head.

While “Chevron allows agencies to choose among

competing reasonable interpretations of a statute; it

does not license interpretive gerrymanders under

which an agency keeps parts of statutory context it

likes while throwing away parts it does not.” Michigan v. EPA, 576 U.S. 743, 754 (2015); see also Util.

Air Regulatory Grp. v. EPA, 573 U.S. 302, 324, 134 S.

Ct. 2427, 2444 (2014) (agency’s interpretation is unreasonable if it would bring about an enormous and

transformative expansion in agency’s regulatory authority without clear congressional authorization).

When properly applied, “Chevron’s second step

can and should be a meaningful limitation on the

ability of administrative agencies to exploit statutory

ambiguities, assert farfetched interpretations, and

usurp undelegated policymaking discretion.” Glob.

Tel*Link v. FCC, 866 F.3d 397, 418 (D.C. Cir. 2017)

(Silberman, J., concurring) (citing, e.g., Michigan,

576 U.S. at 763 (Thomas, J., concurring) (“Although

we hold today that [the agency] exceeded even the

extremely permissive limits on agency power set by

our precedents, we should be alarmed that it felt suf-

22

ficiently emboldened by those precedents to make the

bid for deference that it did here.”)); see also Util. Air

Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)

(scuttling an agency’s bid to acquire newly discovered

authority “in a long-extant statute … [over] ‘a significant portion of the American economy.’”) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 159 (2000)).

Because the Final Rule effectively re-wrote the

NFA to outlaw (hitherto lawful) firearms owned by at

least a half-million law-abiding Americans, see Gun

Owners, 992 F.3d at 471–73, the ATF’s interpretation

deserves no deference. Agencies’ sweeping statutory

re-interpretations should always arouse judicial suspicion, but capricious course changes that criminalize

previously lawful and constitutionally protected behavior should have to endure the cold light of judicial

scrutiny.

Here, the ATF attempted to rewrite a statute to

serve its stated policy goals with no evidence that

Congress intended such an interpretation. See Gun

Owners, 992 F.3d at 472. The panel correctly recognized that bump stocks are merely “devices designed

to assist the shooter” in firing a semiautomatic rifle.

Id. at 451. The Final Rule itself recognized that the

bump-firing method has been around as long as semiautomatic firearms, id. at 452, and a bump stock

isn’t even a necessary ingredient to effectuate the

technique. Id. n.2 (“Rubber bands, belt loops, and

even shoestrings can all facilitate bump firing and

create the same continuous firing cycle that a bump-

23

stock device creates.”) (citing Final Rule, 83 Fed. Reg.

at 66,532–33). If Congress had wanted to categorically expand the NFA to cover semiautomatic

firearms that use a bump-stock accessory, it would—

and must—have done so explicitly.

“Government is not free to impose its own new

policy choices on American citizens where Constitutional rights are concerned.” Miller v. Bonta, No. 19cv-1537 BEN (JLB), 2021 U.S. Dist. LEXIS 105640 at

*122-23 (S.D. Cal. June 4, 2021).

The Second

Amendment’s guarantee of the right to keep and bear

arms is the “true palladium of liberty.” District of

Columbia v. Heller, 554 U.S. 570, 606 (2008) (quoting

2 Blackstone's Commentaries 143 (St. George Tucker

ed., 1803)). And this right is ‘“deeply rooted in this

Nation's history and tradition.’” McDonald, 561 U.S.

at 768 (quoting Washington v. Glucksberg, 521 U.S.

702, 721 (1997)). It “elevates above all other interests the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.” Heller, 554

U.S. at 635; see also Miller, U.S. Dist. LEXIS 105640

at *106 (these rights include “home defense, militia

use, sporting competitions, hunting, target practice,

and other lawful uses.”).

In Heller, the Court recognized that the Second

Amendment protects weapons “in common use” (as

opposed to “dangerous and unusual weapons”). Id. at

627 (citing, e.g., Blackstone 4 Commentaries on the

Laws of England 148-149 (1769)); see also Caetano v.

Massachusetts, 577 U.S. 411 (2016) (Alito, J., concurring) (“[T]he pertinent Second Amendment inquiry is

24

whether [the firearms in question] are commonly

possessed by law-abiding citizens for lawful purposes

today.”); United States v. Miller, 307 U.S. 174, 178

(1939) (implying that a weapon that is commonly

owned and that is useful for the common defense for

a militia member is protected by the Second Amendment).

Bump stocks are most often used in conjunction

with one of the most popular firearms in America,

the AR-15 semiautomatic rifle. See Miller, 2021 U.S.

Dist. LEXIS 105640, at *2 (S.D. Cal. June 4, 2021)

(“Like the Swiss Army Knife, the popular AR-15 rifle

is a perfect combination of home defense weapon and

homeland defense equipment.”). These “ordinary,

popular, modern rifles” are not “bazookas, howitzers,

or machineguns.” Miller, 2021 U.S. Dist. LEXIS

105640 at *3-4. And although bump stocks increase

an AR-15’s rate of fire, they do not transform it into a

Tommy Gun:

[T]he AR-15 is not like the M-16 because

one is a fully automatic machinegun and

one is not …. The AR-15 has no minimum rate of fire. Consequently, the AR15 type rifle may be fired slowly or up to

a hypothetical maximum rate of 300 to

420 rounds per minute, assuming no

pause for reloading (which by itself is a

purely unrealistic hypothetical assumption). Compare this to “[a] modern

machine gun [that] can fire more than

1,000 rounds per minute, allowing a

25

shooter to kill dozens of people within a

matter of seconds.”

Miller, 2021 U.S. Dist. LEXIS 105640 at *101–02

(quoting United States v. Henry, 688 F.3d 637, 640

(9th Cir. 2012)). Bump stocks aren’t machine guns.

But they implicate fundamental rights and a loss of

liberty for many Americans. The ATF’s interpretation most certainly is an elephant. Cf. Whitman, 531

U.S. at 468.

*

*

*

Regardless of the analytical framework the

Court employs, the ATF’s interpretation is wrong.

Myriad reasons support the Sixth Circuit’s panel decision invalidating the Final Rule. The ATF is

entitled to no deference in interpreting criminal statutes, both because Congress holds the exclusive

power to define criminal offenses and because the

rule of lenity mandates a narrow reading of ambiguous criminal statutes. ATF’s interpretation is

particularly untenable when it interprets a statute to

foreclose the exercise of fundamental rights exercised

by hundreds of thousands of law-abiding Americans.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

26

PATRICK MORRISEY

Attorney General

LINDSAY S. SEE

Solicitor General

OFFICE OF THE WEST

VIRGINIA ATTORNEY

GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae

State of West Virginia

April 7, 2022

AUSTIN KNUDSEN

Attorney General

KRISTIN HANSEN

Lieutenant General

DAVID M.S. DEWHIRST

Solicitor General

Counsel of Record

CHRISTIAN B. CORRIGAN

Assistant Solicitor General

MONTANA DEPARTMENT

OF JUSTICE

215 N Sanders

Helena, MT 59601

(406) 444-2026

david.dewhirst@mt.gov

Counsel for Amicus Curiae

State of Montana

27

ADDITIONAL COUNSEL

Steve Marshall

ALABAMA

ATTORNEY GENERAL

Daniel Cameron

KENTUCKY

ATTORNEY GENERAL

Treg Taylor

ALASKA

ATTORNEY GENERAL

Jeff Landry

LOUISIANA

ATTORNEY GENERAL

Mark Brnovich

ARIZONA

ATTORNEY GENERAL

Lynn Fitch

MISSISSIPPI

ATTORNEY GENERAL

Leslie Rutledge

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ATTORNEY GENERAL

Doug Peterson

NEBRASKA

ATTORNEY GENERAL

Lawrence G. Wasden

IDAHO

ATTORNEY GENERAL

John M. Formella

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ATTORNEY GENERAL

Theodore E. Rokita

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ATTORNEY GENERAL

Drew Wrigley

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ATTORNEY GENERAL

Derek Schmidt

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ATTORNEY GENERAL

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ATTORNEY GENERAL

28

John M. O’Connor

OKLAHOMA

ATTORNEY GENERAL

Sean D. Reyes

UTAH

ATTORNEY GENERAL

Alan Wilson

SOUTH CAROLINA

ATTORNEY GENERAL

Bridget Hill

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Ken Paxton

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ATTORNEY GENERAL