Amicus Curiae Brief — W. Clark Aposhian, Petitioner v. Merrick B. Garland, Attorney General, et al.

No. 21-159

IN THE

Supreme Court of the United States

_____________________________________________

W. CLARK APOSHIAN,

Petitioner,

v.

MERRICK GARLAND, et al.,

Respondents.

_____________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_____________________________________________

BRIEF FOR THE NATIONAL RIFLE

ASSOCIATION OF AMERICA, INC. AS AMICUS

CURIAE IN SUPPORT OF THE PETITIONER

_____________________________________________

Michael T. Jean

Counsel of Record

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA, 22030

(703) 267-1158

MJean@nrahq.org

September 3, 2021

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE............................ 1

STATEMENT OF THE CASE ................................... 2

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

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

I.

CONGRESS DEFINED MACHINE

GUNS

BY

THE

TRIGGER’S

MECHANICS, NOT THE HUMAN

PROCESS ........................................................ 6

II.

THE RULE OF LENITY RESOLVES

ANY AMBIGUITY IN LIEU OF

CHEVRON DEFERENCE ............................ 10

III.

THE POLICIES BEHIND THE RULE

OF LENITY ARE FURTHERED WHEN

APPLIED

HERE

WHILE

THE

POLICIES BEHIND CHEVRON ARE

DUBIOUS ...................................................... 17

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) ......................................... 19, 20

Abramski v. United States,

573 U.S. 169 (2014) ......................... 6, 14, 16, 17, 18

Babbitt v. Sweet Home Chapter of Communities

for a Great Ore., 515 U.S. 687 (1995) ................... 14

Baltimore Gas and Elec. Co. v. Nat. Resources Def.

Council, Inc., 462 U.S. 87 (1983) .......................... 16

Bond v. United States,

572 U.S. 844 (2014) ............................................... 12

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

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

Connecticut Nat. Bank v. Germain,

503 U.S. 249 (1992) ................................................. 6

Crandon v. United States,

494 U.S. 152 (1990) ................................................. 6

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.

& Const. Trades Council, 485 U.S. 568 (1988) .... 12

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................... 10, 12, 19

iii

Fahey v. Mallonee,

332 U.S. 245 (1947) ............................................... 19

Fed. Commc’ns Comm’n v. Am. Broad. Co.,

347 U.S. 284 (1954) .............................................. 11

Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000) ..................... 13

Fowler v. State of R.I.,

345 U.S. 67 (1953) ................................................... 8

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................................. 6

Good Samaritan Hosp. v. Shalala,

508 U.S. 402 (1993) ............................................... 18

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

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

cert. denied, 140 S. Ct. 789 (2020) ....... 3, 8, 9, 14,17

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

992 F.3d 446 (6th Cir. 2021) ........................... 3, 6, 8

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................................... 20

HollyFrontier Cheyenne Refining, LLC v. Renewable

Fuels Assn., 141 S. Ct. 2172 (2021) ........................ 3

Huddleston v. United States,

415 U.S. 814 (1974) ............................................... 16

iv

I.N.S. v. Cardoza-Fonseca,

480 U.S. 421 (1987) ............................................... 18

I.N.S. v. St. Cyr,

533 U.S. 289 (2001) ............................................... 12

Indus. Union Dep’t v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ............................................... 16

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................................... 11

Liparota v. United States,

471 U.S. 419 (1985) ......................................... 18, 19

MCI Telecommunications Corp. v. Am. Tel. & Tel.

Co., 512 U.S. 218 (1994)........................................ 13

McNally v. United States,

483 U.S. 350 (1987) ............................................... 11

Miller v. Johnson,

515 U.S. 900 (1995) ............................................... 12

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................. 9

Nat’l Cable & Telecommunications Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ..................... 11

Nat’l. Rifle Ass’n v. Brady,

914 F.2d 475 (4th Cir. 1990) ................................... 2

v

Natl. Lab. Rel. Bd. v. Alt. Ent., Inc.,

858 F.3d 393 (6th Cir. 2017) ........................... 10, 11

Negusie v. Holder,

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

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ............................................... 19

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001) ........ 12, 19

Staples v. United States,

511 U.S. 600 (1994) ......................................... 7, 8, 9

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812) ................................ 19

United States v. Kozminski,

487 U.S. 931 (1988) ......................................... 17, 18

United States v. Mead Corp.,

533 U.S. 218 (2001) ............................................... 19

United States v. R.L.C.,

503 U.S. 291 (1992) ............................................... 18

United States v. Santos,

553 U.S. 507 (2008) ............................................... 10

United States v. Thompson/Ctr. Arms Co.,

504 U.S. 505 (1992) ............................................... 11

vi

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

344 U.S. 218 (1952) ............................................... 13

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ................................. 10

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 19

Whitman v. United States,

574 U.S. 1003, 135 S. Ct. 352 (2014) .................... 14

STATUTES

16 U.S.C. §§ 1531-44 ............................... 14, 15, 16, 17

16 U.S.C. § 1531(b) .................................................... 14

16 U.S.C. § 1532(3) .................................................... 14

16 U.S.C. § 1533(a) .................................................... 15

16 U.S.C. § 1533(b) .................................................... 15

16 U.S.C. § 1533(c) .................................................... 15

16 U.S.C. § 1533(d) .................................................... 14

16 U.S.C. § 1533(f)..................................................... 15

16 U.S.C. § 1534(a) .................................................... 15

16 U.S.C. § 1535 ........................................................ 15

vii

16 U.S.C. § 1536(a)(2) ............................................... 15

16 U.S.C. § 1537(a) .................................................... 16

16 U.S.C. § 1537a ...................................................... 16

16 U.S.C. § 1538(a) .................................................... 14

16 U.S.C. § 1538(a)(1)(G) .......................................... 15

16 U.S.C. § 1539 ........................................................ 17

16 U.S.C. § 1539(a) .................................................... 15

16 U.S.C. § 1539(b) .................................................... 15

16 U.S.C. § 1539(e) .................................................... 15

16 U.S.C. § 1540(b) .................................................... 14

16 U.S.C. § 1540(b)(1) ............................................... 14

18 U.S.C. §§ 921 et seq. ............................................. 16

18 U.S.C. § 921(a)(23) ............................................. 5, 7

18 U.S.C. § 921(a)(28) ................................................. 7

18 U.S.C. § 922(o) ........................................................ 5

18 U.S.C. § 922(o)(2) .................................................. 16

18 U.S.C. § 924(a)(2) ................................................. 17

viii

26 U.S.C. § 5811(a) .................................................... 17

26 U.S.C. § 5821(a) .................................................... 17

26 U.S.C. § 5845(b) .................................................. 5, 7

National Firearms Act, Pub. L. No. 73–474,

48 Stat. 1236 (1934) ................................................ 2

Firearm Owners’ Protection Act,

Pub. L. No. 99-308, 100 Stat. 449 (1986) ............. 16

REGULATIONS

Application of the Definition of Machinegun to

“Bump Fire” Stocks and Other Similar Devices,

83 Fed. Reg. 7,949 (Feb. 20, 2018) ......................... 3

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

(Dec. 26, 2018) ............................................... passim

OTHER AUTHORITIES

Transcript of Oral Argument, Esquivel-Quintana v.

Sessions, 137 S. Ct. 1562 (2017) (No. 16-54) ........ 10

1

INTEREST OF AMICUS CURIAE 1

The National Rifle Association of America, Inc.

(“NRA”) is America’s oldest civil-rights organization

and is widely recognized as America’s foremost defender of Second Amendment rights. It was founded

in 1871, by Union generals who, based on their experiences in the Civil War, sought to promote firearms

marksmanship and expertise amongst the citizenry.

Today, the NRA has approximately five million members, and its programs reach millions more. The NRA

is America’s leading provider of firearms marksmanship and safety training for both civilians and law enforcement.

The NRA has a significant interest in this case.

Many NRA members possessed or wish to possess

bump stocks, and their freedom to do so is hindered by

the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (“ATF”) rule reclassifying bump stocks as machine guns. Bump-Stock-Type Devices, 83 Fed. Reg.

66,514 (Dec. 26, 2018). Indeed, representatives for the

NRA testified before Congress in 1934, when it was

debating how to define “machinegun.” Id. at 66,518.

And the NRA has been arguing that the rule of lenity

should apply to statutes that impose criminal liability

instead of Chevron deference, the question presented

1 In accordance with this Court’s Rule 37.6, counsel for ami-

cus curiae certifies that this brief was not authored in whole or

in part by counsel for any party and that no person or entity other

than amicus curiae or its counsel has made a monetary contribution for the preparation or submission of this brief. All parties

received timely notice of this amicus brief and have consented to

its filing.

2

to the Court, for over 30 years. See, e.g., Nat’l. Rifle

Ass’n v. Brady, 914 F.2d 475, 479 n.3 (4th Cir. 1990).

STATEMENT OF THE CASE

Since passing the National Firearms Act in 1934,

Congress has consistently defined “machineguns” 2 by

their ability to fire multiple rounds “by a single function of the trigger.” Pub. L. No. 73–474, 48 Stat. 1236;

26 U.S.C. § 5845(b). Bump stocks replace standard,

stationary stocks (the portion of a rifle that rests

against the shooter’s shoulder). This in turn allows

“the weapon to slide back and forth rapidly, harnessing the energy from the firearm’s recoil either through

a mechanism like an internal spring or in conjunction

with the shooter’s maintenance of pressure.” 83 Fed.

Reg. at 66,516. The harnessed recoil causes the trigger

to bump and reset against the shooter’s finger. Bump

stocks were not classified as machine guns because—

unlike machine guns—the trigger on bump-stockequipped items must be pulled, released, and reset after every round is discharged. See, e.g., 83 Fed. Reg.

at 66,517.

Then, on October 1, 2017, a shooter senselessly

attacked a crowd of concertgoers in Las Vegas with a

bump-stock equipped rifle. In response, President

Trump directed the Department of Justice “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. 7,949 (Feb.

20, 2018). ATF then promulgated the Bump-Stock2 NRA uses the modern spelling of machine gun throughout

this brief except while quoting the statute.

3

Type Devices Rule, 83 Fed. Reg. 66,514 (“Final Rule”),

which now classifies bump stocks as machine guns.

The Final Rule prompted several challenges and

several divided opinions. In particular, the lower

courts have struggled to determine whether Chevron

deference applies to agency interpretations of criminal statutes. A divided panel of the D.C. Circuit held

that Chevron applied and upheld the Final Rule.

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020). A divided panel of the

Sixth Circuit held that Chevron did not apply and that

bump stocks were not machine guns. Gun Owners of

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

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

576 (6th Cir. 2021). And in this case, a divided panel

of the Tenth Circuit held that Chevron applied and

upheld the Final Rule. Aposhian v. Barr, 958 F.3d 969

(10th Cir. 2020) (“Aposhian Panel”) (Pet. App. 1a). The

Tenth Circuit then granted en banc review and asked

the parties for supplemental briefing on Chevron’s

proper application in the case. Aposhian v. Barr, 973

F.3d 1151 (10th Cir. 2020) (Pet. App. 74a). But the

deeply divided court subsequently withdrew its order

granting en banc review and reinstated the panel’s

opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th

Cir. 2021) (“Aposhian En Banc”) (Pet. App. 78a). This

petition followed. 3

3 The ATF has repeatedly asserted that it was not invoking

Chevron throughout all of these cases, but the D.C. and Tenth

Circuits applied Chevron nevertheless. The NRA agrees with the

Petitioners that an agency must invoke Chevron for it to be considered. HollyFrontier Cheyenne Refining, LLC v. Renewable

Fuels Assn., 141 S. Ct. 2172, 2180 (2021). The NRA does not re-

4

It is difficult to pose a more important question of

federal law than whether an agency interpretation of

a criminal statute is due Chevron, or any other type

of, deference. The fact that the lower courts are divided and are granting en banc review with regularity

verifies the question’s importance. And there is no better time to answer that question than now. The Court

has the benefit of several lower court opinions to guide

it. And federal agencies would benefit greatly from

having an answer to this question sooner rather than

later. The Court should grant the petition and give the

lower courts, the federal agencies, and the people a

clear answer.

SUMMARY OF THE ARGUMENT

The Final Rule is arbitrary and capricious. Congress defined “machinegun” clearly, and bump stocks

clearly do not fit that definition. Even if there is ambiguity in the statute, it is inappropriate to apply

Chevron deference because this is a criminal statute.

This Court has also applied the traditional canons of

construction, including the rule of lenity, before deferring to the agency’s preferred interpretation under

Chevron. The rule of lenity would resolve all ambiguity in the statute, leaving no gaps for ATF to fill. This

Court also does not defer to agency interpretations on

important questions that Congress is likely to have

answered itself. Imposing criminal liability comes

with certain stigmas and a loss of liberty. Those moral

peat those arguments here. Instead, the NRA focuses on the impropriety of applying Chevron to criminal statutes.

5

judgments are the types of important questions that

Congress must answer itself.

Moreover, the purposes behind the rule of lenity

are furthered when applied in this case, while Chevron deference is misplaced. The rule of lenity provides

notice to the people, limits arbitrary prosecutions, and

preserves the separation of powers. Chevron, however, promotes arbitrary prosecutions and muddles

the separation of powers.

ARGUMENT

ATF got it wrong in the Final Rule. Bump stocks

are not machine guns. In defining machine gun, Congress focused solely on the trigger’s mechanics, not the

process by which the shooter pulls the trigger. 26

U.S.C. § 5845(b). The statutory benchmark is clear,

and ATF missed the mark.

ATF’s error cannot be salvaged by deferring to its

expertise under Chevron. Chevron provides a two-step

framework for reviewing an agency’s interpretation of

a statute. First, courts review the statutory text, using

the traditional canons of statutory construction if necessary, to determine if Congress has spoken on the

issue. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 842, 843 n.9 (1984). If Congress’s

intentions are clear, that is the end of the matter. Id.

at 842–43. But if, and only if, the statute is “silent or

ambiguous with respect to the specific issue,” courts

then proceed to step two to determine if the agency’s

interpretation of the statute is reasonable. Id. at 843.

Here, not only is the statute clear, but it also defines criminal conduct. 18 U.S.C. §§ 921(a)(23), 922(o).

“[C]riminal laws are for courts, not for the Govern-

6

ment, to construe”; ATF’s position is “not relevant at

all.” Abramski v. United States, 573 U.S. 169, 191

(2014) (citation omitted); Gonzales v. Oregon, 546 U.S.

243, 264 (2006) (“Just as he must evaluate compliance

with federal law in deciding about registration, the

Attorney General must as surely evaluate compliance

with federal law in deciding whether to prosecute; but

this does not entitle him to Chevron deference.”) (citing Crandon v. United States, 494 U.S. 152, 177

(1990) (Scalia, J., concurring)). Abramski’s edict is

“clear, unequivocal, and absolute.” Gun Owners of

Am., Inc., 992 F.3d at 455. That should be the end of

the matter. But even if it were appropriate to set that

precedent aside, it is inappropriate to defer to ATF’s

interpretation of “machinegun” because (1) the statute is clear, (2) the rule of lenity necessarily resolves

any ambiguities in favor of criminal defendants, and

(3) Chevron’s purposes are misplaced in the criminal

arena.

I.

CONGRESS

DEFINED

MACHINE

GUNS BY THE TRIGGER’S MECHANICS, NOT THE HUMAN PROCESS.

Although not as important as the other issues

raised in the petition, the Court must first determine

whether a bump stock is a machine gun under the

plain meaning of the statute. It is not.

“When the words of a statute are unambiguous,

then … ‘judicial inquiry is complete.’” Connecticut

Nat. Bank v. Germain, 503 U.S. 249, 254 (1992) (citations omitted). Congress specifically defined “machinegun” as “any weapon which shoots, is designed

to shoot, or can be readily restored to shoot, automat-

7

ically more than one shot, without manual reloading,

by a single function of the trigger.” 26 U.S.C. § 5845(b)

(emphasis added); 18 U.S.C. § 921(a)(23). Congress’s

clear definition is objectively based on the trigger’s

mechanics, nothing else. The term “automatically” is

clear as well: automatic fire must also occur by “a single function of the trigger.” Id.; Staples v. United

States, 511 U.S. 600, 602 n.1 (1994); Aposhian En

Banc, 989 F.3d at 895 (Tymkovich, J. dissenting) (Pet.

App. 89a) (“‘[A]utomatically’ is not so ambiguous as

to imply Congress intended ATF to engage in gapfilling.”). That clarity is further reinforced by Congress’s distinct definition of “semiautomatic rifle,”

which “requires a separate pull of the trigger to fire

each cartridge.” 18 U.S.C. § 921(a)(28). Indeed, this

Court had no trouble distinguishing the terms in Staples: an automatic firearm will “continue to fire until

the trigger is released,” while a semiautomatic “fires

only one shot with each pull of the trigger.” 511 U.S.

602 n.1. There is no doubt about what these terms

mean.

Unburdened by any ambiguity in 2006, ATF had

no problem concluding that “the drafters equated ‘single function of the trigger’ with ‘single pull of the trigger.’” 83 Fed. Reg. at 66,517 (citing ATF Ruling 20062, at 2). ATF then concluded that bump stocks do not

meet the statute’s objective criteria for “machineguns”

no less than ten times between 2008 to 2017. Id. at

66,517. There was no ambiguity in the statute then.

There is none now.

But in the Final Rule, ATF moved the goalposts

and reversed its consistent interpretation of machine

gun. ATF now declares bump stocks to be machine

guns by claiming bump stocks “produce[] more than

8

one shot … after a single pull of the trigger, so long

as the trigger finger remains stationary on the device’s ledge.” Id. at 66,519. There is an insurmountable problem with ATF’s statement: by ATF’s own admission—in the same paragraph—“the trigger resets”

after each round is discharged. Id. “Shooters use

bump-stock-type devices with semiautomatic firearms

to accelerate the firearms’ cyclic firing rate to mimic

automatic fire.” Id. at 66,516 (emphasis added). Mimicking automatic fire does not constitute automatic

fire under the statute. Aposhian En Banc, 989 F.3d at

895 (Tymkovich, J. dissenting) (Pet. App. 89a) (“The

fact that a bump stock accelerates this process does

not change the underlying fact that it requires multiple functions of the trigger to mimic a machine gun.”).

This bears repeating: the trigger on a bump stock

“must be released, reset, and pulled again,” by the

shooter’s finger, every time an additional round is discharged. Gun Owners of Am., 992 F.3d at 471;

Aposhian Panel, 958 F.3d at 993, 995 (Carson, J., dissenting) (Pet. App. 42a, 46a) (“The rifle cannot fire a

second round until both the trigger and hammer reset.”). The Government conceded this point during the

en banc oral argument below. Aposhian En Banc, 989

F.3d at 896 (Tymkovich, J. dissenting) (Pet. App. 90a);

see also Fowler v. State of R.I., 345 U.S. 67, 69 (1953)

(A broad factual concession can be “fatal” to a party’s

case.). This means that bump-stock equipped firearms

remain semiautomatic. Staples, 511 U.S. 602 n.1.

“A bump stock may change how the pull of the

trigger is accomplished” but does not change the fact

that the firearm “shoots only one shot for each pull of

the trigger.” Gun Owners of Am., 992 F.3d at 471 (citing Guedes, 920 F.3d at 48 (Henderson, J., concurring

9

in part and dissenting in part) (emphasis in original);

Aposhian Panel, 958 F.3d at 993, 996 (Carson, J., dissenting) (Pet. App. 48a) (“A bump stock, in other

words, changes only how a trigger pulls; it does not

change the fact that the trigger itself must function

every shot.”) (emphasis in original). Had Congress

chosen to define machine guns by the particular motion of the shooter’s trigger finger or the rate of fire,

then those factors would be relevant. See Staples, 511

U.S. at 604 (“‘[T]he definition of the elements of a

criminal offense is entrusted to the legislature, particularly in the cases of federal crimes, which are solely

creatures of statute.’”) (citation omitted). But Congress clearly and unequivocally did not. Aposhian En

Banc, 989 F.3d at 895 (Tymkovich, J. dissenting) (Pet.

App. 88a). ATF did not define machine gun by the

“shooter’s finger or a volitional action” either. Guedes,

920 F.3d at 43 (Henderson, J., concurring in part and

dissenting in part). ATF nevertheless looked to those

factors to determine that bump stocks are machine

guns. See, e.g., 83 Fed. Reg. at 66,519. By doing so,

ATF went off target, and the Final Rule is arbitrary

and capricious. Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). 4

4 ATFs responses to public comments received further illus-

trate the Final Rule’s arbitrariness. For example, a firearm with

a binary trigger will discharge one round when the trigger is

pulled and a second round when the trigger is released. But ATF

concluded “[e]ven if this release results in a second shot being

fired, it is as the result of a separate function of the trigger.” 83

Fed. Reg. at 66,534. But according to ATF—in the same

paragraph—a bump stock that requires the trigger to be pulled,

released, and reset before each round is discharged is done by a

single “function” of the trigger and is a machine gun. Id.

10

II.

THE RULE OF LENITY RESOLVES ANY

AMBIGUITY IN LIEU OF CHEVRON DEFERENCE

If there is any ambiguity in § 5845(b), the bigger

and more important question for the Court would be

how to resolve it: in favor of a criminal defendant under the rule of lenity, United States v. Santos, 553 U.S.

507, 514 (2008), or deferring to the government’s reasonable interpretation under Chevron, 467 U.S. at

843. The Court cannot apply both. As Chief Justice

Roberts recently explained, these two doctrines cannot “coexist” because “[t]hey each point in the opposite

direction based on the same predicate.” Transcript of

Oral Argument at 12, Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) (No. 16-54). 5 Fortunately, Chevron’s structure and this Court’s precedent lead to one

conclusion: the rule of lenity applies.

1. If Chevron applies at all, then, at a minimum,

the Court must apply the traditional tools of statutory

construction at step one. Epic Sys. Corp. v. Lewis, 138

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

843 n.9). This includes the rule of lenity, which is as

traditional as it gets. See, e.g., United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (describing the rule of lenity as an “ancient maxim”). And once

the rule of lenity is applied, all ambiguity gets resolved, and “‘Chevron leaves the stage.’” Epic Sys.

Corp., 138 S. Ct. at 1630 (quoting Natl. Lab. Rel. Bd.

5 The Esquivel-Quintana Court did not “resolve whether the

rule of lenity or Chevron” applies because it held that the statute

“unambiguously forecloses the [government’s] interpretation.”

137 S. Ct. at 1572.

11

v. Alt. Ent., Inc., 858 F.3d 393, 417 (6th Cir. 2017)

(Opinion of Sutton, J.)).

This Court has constantly applied the rule of lenity in lieu of deferring to an agency’s preferred interpretation of a statute, both before and after Chevron.

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.”); Nat’l Cable & Telecommunications Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 985 (2005);

Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Although

here we deal with § 16 in the deportation context, § 16

is a criminal statute…. Because we must interpret the

statute consistently, … the rule of lenity applies.”);

United States v. Thompson/Ctr. Arms Co., 504 U.S.

505, 517–18 (1992) (plurality) (applying the rule of

lenity in a civil case to determine that a device had

“not been ‘made’ into a short-barreled rifle” under the

National Firearms Act); McNally v. United States, 483

U.S. 350, 360 (1987) (declining to “construe the [mail

fraud] statute in a manner that leaves its outer

boundaries ambiguous and involves the Federal Government in setting standards”); Fed. Commc’ns

Comm’n v. Am. Broad. Co., 347 U.S. 284, 296 (1954)

(rejecting the FCC’s preferred interpretation of the

law because it would apply in criminal cases and “do

violence to the well-established principle that penal

statutes are to be construed strictly”). There is no reason to disregard that long line of consistent precedent

here.

Applying the rule of lenity is also on par with how

the Court applies other substantive canons of construction in lieu of Chevron. The Court applied the

federalism canon to resolve ambiguity in the term

12

“chemical weapon” under the International Convention on Chemical Weapons and held that the term did

not encompass a wife’s attempt to injure her husband’s lover with commonly used chemicals. Bond v.

United States, 572 U.S. 844, 859–60 (2014); see also

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps

of Engineers, 531 U.S. 159, 172–73 (2001) (applying

the federalism canon and rejecting the agency’s position that ponds formed in abandoned sand and gravel

pits were “waters of the United States” under the

Clean Water Act). This Court has also used the constitutional avoidance canon to reject an agency interpretation of the Voting Rights Act that “compel[ed]

race-based districting.” Miller v. Johnson, 515 U.S.

900, 923 (1995); see also Edward J. DeBartolo Corp. v.

Fla. Gulf Coast Bldg. & Const. Trades Council, 485

U.S. 568, 574–75 (1988). In I.N.S. v. St. Cyr, the Court

rejected the Board of Immigration Appeals’ preferred

interpretation of the Illegal Immigration Reform and

Immigrant Responsibility Act because it would have

violated the presumption against retroactive application. 533 U.S. 289, 320 n.45 (2001) (abrogated by statute). And more recently, the Court rejected the National Labor Relations Board’s preferred interpretation of the National Labor Relations Act because it

would have nullified the Federal Arbitration Act and

violated the “canon against reading conflicts into statutes.” Epic Sys. Corp., 138 S. Ct. at 1630. Applying the

rule of lenity here is entirely consistent with these

precedents, too.

If there was any remaining doubt about Chevron’s

application to criminal laws, the “major question” doctrine resolves it. Courts do not defer to agencies on

important political and economic questions because

13

Congress is likely to have answered those questions

itself. Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159–60 (2000). As this

Court explained, “[i]t is highly unlikely that Congress

would leave the determination of whether an industry

will be entirely, or even substantially, rate-regulated

to agency discretion—and even more unlikely that it

would achieve that through such a subtle device.” MCI

Telecommunications Corp. v. Am. Tel. & Tel. Co., 512

U.S. 218, 231 (1994). Likewise, because criminal statutes “entail stigma and penalties and prison,” this

Court requires Congress to use “language that is clear

and definite.” United States v. Universal C. I. T. Credit

Corp., 344 U.S. 218, 221–22 (1952). The Court therefore rejects the “harsher” reading of the statute because it does “not derive criminal outlawry from some

ambiguous implication.” Id. at 222. Moreover, the

Brown & Williamson Tobacco Corp. Court found that

the country’s long and unique political history with tobacco made it “highly unlikely” that Congress would

have ambiguously granted the FDA authority to regulate cigarettes through a strained reading of the

word “safety.” 529 U.S. at 159–60. The country also

has a long and unique political history with firearms,

which—unlike cigarettes—are safeguarded by an

enumerated, fundamental constitutional right. It is

just as, if not more, unlikely that Congress would have

subtly granted ATF the authority to regulate any firearm under a strained and shifting reading of a statutorily defined term.

Chevron’s structure and the weight of the Court’s

precedent lead to one conclusion: courts do not defer

to agency interpretations of criminal statutes.

14

2. It is true that in Babbitt v. Sweet Home Chapter

of Communities for a Great Ore., the Court said that

it has “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.

687, 704 n.18 (1995). But Babbitt contradicts all of the

above-mentioned cases (and Abramski), many of

which were subsequently decided. Babbitt has also

been criticized by members of the Court, which further limits its persuasiveness. Whitman v. United

States, 574 U.S. 1003, 135 S. Ct. 352, 353–54 (2014)

(mem.) (Statement of Scalia, J.,); Guedes v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 140 S. Ct.

789, 790 (2020) (Statement of Gorsuch, J.,)

(“Chevron … has no role to play when liberty is at

stake.”).

But there is another material distinction between

Babbitt and this case. The statutory scheme at issue

in Babbitt, the Endangered Species Act (“ESA”) 16

U.S.C. §§ 1531-44, is primarily regulatory. Its purpose

is to conserve species to the point where they no longer

need the ESA’s protections. Id. §§ 1531(b), 1532(3). Indeed, the ESA is codified under Title 16, the subject of

which is Conservation. And while imposing misdemeanor criminal liabilities for unlawfully taking, possessing, importing, exporting, or selling an endangered species is one tool for conserving species under

the ESA, id. §§ 1538(a), 1540(b), 6 the other non6 These prohibitions only apply to species that are listed as

“endangered” under the ESA. For “threatened” species, Congress

authorized the Secretary to issue regulations that “he deems necessary and advisable” for the conservation of the species. Id.

§ 1533(d). The ESA imposes the same misdemeanor penalties for

15

criminal regulatory tools paint a far broader picture.

Moreover, the ESA’s prohibited criminal acts are not

absolute. The statute gives the Secretaries of Interior

and Commerce discretionary authority to permit an

otherwise unlawful act, including taking a species, if

certain conditions, including “for scientific purposes,”

are met. Id. § 1539(a). There are also economic hardship exceptions and subsistence exceptions for Alaskan natives. Id. §§ 1539(b), (e).

More importantly, the majority of the provisions

in the ESA do not restrict the general public at all.

The ESA directs the Secretaries of Interior and Commerce to determine if a species is “endangered” or

“threatened” by consulting the best available scientific and commercial data and to list the species accordingly. Id. §§ 1533(a)-(c). The ESA requires those

Secretaries to develop “recovery plans” for each listed

species and present the plans to Congress. Id.

§ 1533(f). The ESA directs those Secretaries to develop

conservation programs with the Secretary of Agriculture, including purchasing lands to carry out the conservation efforts. Id. § 1534(a). The ESA mandates

that those Secretaries cooperate with states when conserving species, which includes entering into joint

wildlife management agreements with and allocating

funds to the state wildlife-management agencies. Id.

§ 1535. The ESA requires other federal agencies to

consult with the Secretaries to “insure” that their actions do not “jeopardize the continued existence of”

any listed species. Id. § 1536(a)(2). The ESA allows the

Secretaries to lend conservation assistance to foreign

violating any of those regulations. Id. §§ 1538(a)(1)(G),

1540(b)(1).

16

nations, which includes acquiring lands and waters in

those nations. Id. § 1537(a). And finally, the ESA is

the statute through which Congress executed the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Id. § 1537a. There is no

doubt that the ESA is overwhelmingly regulatory in

nature with a focus on science-based wildlife conservation, which is where Chevron is most appropriately

applied. See, e.g., Baltimore Gas and Elec. Co. v. Nat.

Resources Def. Council, Inc., 462 U.S. 87, 103 (1983)

(Courts are to be “most deferential” when agencies are

operating in their “area of special expertise, at the

frontiers of science.”) (citing Indus. Union Dep’t v. Am.

Petroleum Inst., 448 U.S. 607, 656 (1980) (plurality

opinion)).

In contrast, the Gun Control Act of 1968 (“GCA”),

18 U.S.C. §§ 921 et seq., as amended by the Firearm

Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat.

449 (1986), is primarily criminal in nature. It is codified under Title 18 of the United States Code, which

regulates Crimes and Criminal Procedure. This Court

has repeatedly noted that “Congress’s principal purpose in enacting the statute [was] to curb crime by

keeping firearms out of the hands of those not legally

entitled to possess them.” Abramski, 573 U.S. at 181

(quoting Huddleston v. United States, 415 U.S. 814,

824 (1974) (emphasis added) (internal quotation

marks omitted)). There are only two circumstances

under which a machine gun may be lawfully possessed: if the machine gun is possessed under the authority of a government agency or if it was possessed

before May 19, 1986, when the statute took effect. 18

U.S.C. § 922(o)(2). Thus, unlike the ESA, which authorizes certain exemptions for its prohibited criminal

17

acts, 16 U.S.C. § 1539, ‘“private ownership of machine

guns’ is ‘effectively banned’ by the GCA.” Aposhian En

Banc, 989 F.3d at 895 (Tymkovich, J. dissenting) (Pet.

App. 108a) (quoting Guedes, 920 F.3d at 36 (Henderson, J., concurring in part and dissenting in part).

Moreover, unlawful possession of a machine gun is “a

felony punishable by up to ten years of imprisonment.”

Id. (citing 18 U.S.C. § 924(a)(2)) (emphasis in original). Unlike the ESA, the GCA’s criminal consequences are “enormous” when compared to the “limited” scope of its civil regulatory regime for pre-1986

machine guns. Id.; see also, e.g., 26 U.S.C. § 5811(a)

(imposing a $200 transfer tax on machine guns); id.

§ 5821(a) (imposing a $200 tax on manufacturing machine guns). And because the GCA is overwhelmingly

criminal, ATF’s position is “not relevant at all.”

Abramski, 573 U.S. at 191.

III.

THE POLICIES BEHIND THE RULE OF

LENITY ARE FURTHERED WHEN APPLIED HERE WHILE THE POLICIES BEHIND CHEVRON ARE DUBIOUS.

This Court has also looked to the purposes behind

the rule of lenity to determine if it supplants the government’s preferred interpretation of a statute. See,

e.g., United States v. Kozminski, 487 U.S. 931, 952

(1988). Those purposes are “to promote fair notice to

those subject to the criminal laws, to minimize the

risk of selective or arbitrary enforcement, and to

maintain the proper balance between Congress, prosecutors, and courts.” Id. Each of these purposes is further served by applying the rule of lenity here.

18

1. The first purpose behind the rule of lenity is to

“ensure[] that criminal statutes will provide fair

warning concerning conduct rendered illegal.”

Liparota v. United States, 471 U.S. 419, 427 (1985).

Although this is “required,” it has been referred to as

a “fiction” because it is unlikely that a criminal will

consult the United States Code before acting. United

States v. R.L.C., 503 U.S. 291, 309 (1992) (Scalia, J.,

concurring) (citation omitted). But that “necessary fiction descends to needless farce when the public is

charged even with knowledge of Committee Reports”

and other legislative history. Id. If it were possible to

descend any lower, assuming that the public consults

the Federal Register or the Code of Federal Regulations before acting does just that.

2. The second purpose behind the rule of lenity is

to prevent “arbitrary or discriminatory prosecution

and conviction.” Kozminski, 487 U.S. at 949. Arbitrary

enforcement is the inherent result of “delegat[ing] to

prosecutors and juries the inherently legislative task

of determining what type of coercive activities are so

morally reprehensible that they should be punished

as crimes.” Id. Again, ATF determined that bump

stocks were not machine guns no fewer than ten times

between 2008 to 2017. 83 Fed. Reg. at 66,517. Now

ATF has reversed itself. 7 And there is nothing stopping ATF from reversing itself again if it so chooses.

No agency should have that power. That is why “criminal laws are for courts, not for the Government, to

construe.” Abramski, 573 U.S. at 191.

7 Even if ATF was due any deference here, that deference gets

reduced “‘considerably’” because ATF flipped its position. Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (quoting

I.N.S. v. Cardoza–Fonseca, 480 U.S. 421, 446, n.30 (1987).

19

3. Lastly, applying the rule of lenity preserves the

separation of powers. Chevron is founded on the premise that Congress delegates authority to the executive

branch through ambiguities or gaps in statutes.

United States v. Mead Corp., 533 U.S. 218, 227 (2001).

But the power to create crimes lies exclusively with

Congress. Liparota, 471 U.S. at 424 (quoting United

States v. Hudson, 11 U.S. (7 Cranch) 32, 33 (1812); see

also id. at 427 (“‘[C]riminal punishment usually represents the moral condemnation of the community,’”

which the legislature is best equipped to do.) (citation

omitted). As Chief Justice Marshall rightly wrote almost two centuries ago, Congress cannot “delegate …

powers which are strictly and exclusively legislative,”

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43

(1825), and Congress definitely cannot do this “casually” through an ambiguous grant of authority, Solid

Waste Agency of N. Cook Cty., 531 U.S. at 172–73. 8

This Court has twice struck “delegation[s] of a

power to make federal crimes of acts that never had

been such before.” Fahey v. Mallonee, 332 U.S. 245,

249 (1947) (citing Panama Refining Co. v. Ryan, 293

U.S. 388 (1935) and A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935)). The Final Rule is

8 There is also a political-accountability problem with ap-

plying Chevron in this case. Because Congress delegates its legislative authority to the executive branch through ambiguities or

gaps, “‘the executive branch should have to take ownership of

[its] policy choices so that the voters know whom to blame (and

to credit’)” for those choices. Epic Sys. Corp., 138 S. Ct. at 1630

(citation omitted). But ATF has not invoked Chevron in any of

the challenges to the Final Rule. Granting ATF Chevron deference therefore gives ATF the benefits of the doctrine without any

accountability.

20

no different: “If allowing the President to draft a

‘cod[e] of fair competition’ for slaughterhouses was

‘delegation running riot,’ then it’s hard to see how giving the nation’s chief prosecutor the power to write a

criminal code rife with his own policy choices might be

permissible.” Gundy v. United States, 139 S. Ct. 2116,

2144 (2019) (Gorsuch, J., dissenting) (quoting

Schechter Poultry, 295 U.S. at 552–553 (Cardozo, J.,

concurring)). The justifications for preserving the separation of powers are at their pinnacle in the criminal

arena. The rule of lenity furthers these justifications.

Chevron does not.

*

*

*

Because the competing doctrines of lenity and

Chevron cannot coexist in this case, the Court should

resolve the disaccord amongst the lower courts by applying the rule of lenity, which furthers the legitimate

policy interests, and forego Chevron deference.

21

CONCLUSION

For the foregoing reasons, petition for writ of certiorari should be granted.

Respectfully submitted,

Michael T. Jean

Counsel of Record

NATIONAL RIFLE

ASSOCIATION OF AMERICA –

INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA, 22030

(703) 267-1158

MJean@nrahq.org

September 3, 2021

Counsel for Amicus Curiae