Petition for Writ of Certiorari — Damien Guedes, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al.

Supreme Court briefJun 14, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the District of Columbia

Circuit

(August 9, 2022) . . . . . . . . . . . . . . App. 1

Appendix B Memorandum Opinion in the United

States District Court for the District of

Columbia

(February 19, 2021) . . . . . . . . . . App. 33

Appendix C Order in the United States District

Court for the District of Columbia

(February 19, 2021) . . . . . . . . . . App. 65

Appendix D Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the District of Columbia

Circuit

(May 2, 2023). . . . . . . . . . . . . . . . App. 67

Appendix E Opinion in the United States Court of

Appeals for the District of Columbia

Circuit

(April 1, 2019) . . . . . . . . . . . . . . . App. 95

Appendix F Memorandum Opinion in the United

States District Court for the District of

Columbia

(February 25, 2019) . . . . . . . . . App. 192

Appendix G Order in the United States District

Court for the District of Columbia

(February 25, 2019) . . . . . . . . . App. 272

Appendix H Regulatory Provisions. . . . . . . . App. 274

27 C.F.R. § 447.11 . . . . . . . . . . . App. 274

27 U.S.C. § 478.11. . . . . . . . . . . App. 275

27 C.F.R. § 479.11 . . . . . . . . . . . App. 276

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5045

[Filed August 9, 2022]

__________________________________________

DAMIEN GUEDES, ET AL.,

)

APPELLANTS

)

FIREARMS POLICY COALITION, INC.,

)

APPELLEE

)

BUREAU OF ALCOHOL, TOBACCO,

)

FIREARMS AND EXPLOSIVES, ET AL.,

)

APPELLEES

)

_________________________________________ )

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-02988)

_____________________________

Argued March 8, 2022 —

Decided August 9, 2022

______________________________

App. 2

Erik S. Jaffe argued the cause for appellants. With

him on the briefs were Joshua G. Prince, Adam Kraut,

and Joshua J. Prince.

John Cutonilli, pro se, was on the brief for amicus

curiae John Cutonilli in support of appellants.

Mark B. Stern, Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on

the brief were Brian M. Boynton, Acting Assistant

Attorney General, and Michael S. Raab, Abby C.

Wright, Brad Hinshelwood, and Kyle T. Edwards,

Attorneys.

Ian Simmons, Jonathan Lowy, and Eric Tirschwell

were on the brief for amici curiae Giffords Law Center

to Prevent Gun Violence, and Brady and Everytown for

Gun Safety in support of appellees.

Before: SRINIVASAN, Chief Judge, WILKINS, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge

WILKINS.

WILKINS, Circuit Judge: Is a bump stock device a

“machine gun” within the meaning of federal law? We

are tasked with answering that question definitively.

Following the 2017 mass shooting in Las Vegas in

which 58 people were killed and approximately 500

were wounded—the deadliest in modern American

history—the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF” or the “Bureau”) promulgated a rule

App. 3

classifying “bump stocks” as machine guns.1 A bump

stock, like those used by the Las Vegas shooter,

replaces a rifle’s stationary stock with a sliding stock.

It thereby enables the weapon to slide back and forth

against the shooter’s shoulder, “bumping” the shooter’s

trigger finger repeatedly and rapidly firing the weapon.

The Bureau’s new rule instructed individuals with

bump stocks to either destroy them, abandon them at

the nearest ATF facility, or face criminal penalties.

The Bureau interpreted “machine gun,” as defined

in the National Firearms Act and Gun Control Act, to

extend to bump stocks. Plaintiffs initially moved for a

preliminary injunction to stop the rule from taking

effect, which the District Court denied, and a panel of

this Court affirmed. At the merits stage, the District

Court again rejected Plaintiffs’ challenges to the rule

under the Chevron framework. See Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). The central question on appeal is

whether the Bureau had the statutory authority to

interpret “machine gun” to include bump stocks.

Employing the traditional tools of statutory

interpretation, we find that the disputed rule is

consistent with the best interpretation of “machine

gun” under the governing statutes. We therefore

affirm.

We follow the previous panel’s example and use the two-word

spelling of “machine gun” except when directly quoting sources.

Guedes v. ATF, 920 F.3d 1, 6 n.1 (D.C. Cir. 2019).

App. 4

Congress enacted the National Firearms Act in 1934

to regulate the sale of particular firearms, including

machine guns. Initially, the Act defined a “machine

gun” as “any weapon which shoots, or is designed to

shoot, automatically or semiautomatically, more than

one shot, without manual reloading, by a single

function of the trigger.” Pub. L. No. 73-474, § 1(b), 48

Stat. 1236, 1236 (1934). In 1968, Congress removed “or

semiautomatically” and expanded the definition to

include:

the frame or receiver of any such weapon, any

combination of parts designed and intended for use

in converting a weapon into a machinegun, and any

combination of parts from which a machinegun can

be assembled.

Pub. L. 90-618, 82 Stat. 1213, 1231 (1968). Congress

charged the Attorney General with enforcement of the

National Firearms Act, who in turn delegated

enforcement authority to the Bureau. 26 U.S.C.

§ 7801(a); 28 C.F.R. § 0.130(a).

With the Gun Control Act of 1968, Congress

incorporated the National Firearms Act’s definition of

“machinegun” and strengthened its prohibitions on

firearm sales and licensing. 18 U.S.C. § 922(a)(4). As

amended by the Firearm Owners’ Protection Act of

1986, the Gun Control Act prohibits the transfer of or

possession of machine guns, excluding those authorized

to possess such weapons by the state or federal

government or those who possessed them before the

App. 5

law took effect. 18 U.S.C. § 922(o). The Gun Control

Act’s enforcement scheme is identical to that of the

National Firearms Act. Congress empowered the

Attorney General to “prescribe only such rules and

regulations as are necessary to carry out the provisions

of this chapter,” who delegated this authority, in turn,

to the Bureau. Id. § 926(a); 28 C.F.R. § 0.130(a)(6).

In 2006, the Bureau determined that certain bump

stock devices—ones that harnessed energy from an

internal spring’s recoil, like an Akins Accelerator—

qualified as machine guns under both Acts. See ATF

Rul. 2006-2. Between 2008 and 2017, however, the

Bureau issued ten letter rulings in which it concluded

that devices relying on both the recoil energy and the

shooter’s constant forward pressure were not machine

guns. These weapons fired multiple shots with a “single

pull of the trigger,” but in the Bureau’s view did not

operate “automatically,” though the Bureau did not

engage with the meaning of the term. Id. at 66,518.2

In the aftermath of the Las Vegas shooting, thenPresident Trump and Congress urged the Bureau to

revisit its position on bump stocks. Department of

Justice Announces Bump-Stock-Type Devices Final

Rule, DEP’T OF JUST. (Dec. 18, 2018), https://www.

justice.gov/opa/pr/department-justice-announces-bumpstock-typedevices-final-rule, J.A. 21–22. Following a

notice of proposed rulemaking, see Bump-Stock-Type

Devices, 83 Fed. Reg. 13,442 (Mar. 29, 2018), the

These devices included one from the manufacturer of at least one

of the bump stock devices used in the Las Vegas shooting. Id. at

66,516.

App. 6

Bureau issued a final rule reversing its earlier position

that only bump stocks with internal springs qualified

as machine guns under the National Firearms Act and

Gun Control Act. Bump-Stock-Type Devices, 83 Fed.

Reg. 66,514, 66,514–15 (Dec. 26, 2018) (“Bump Stock

Rule” or “Rule”). Under the Rule, “bump-stock-type

devices are ‘machineguns’ as defined by the National

Firearms Act and Gun Control Act because such

devices allow a shooter of a semiautomatic firearm to

initiate a continuous firing cycle with a single pull of

the trigger.” Id. at 66,515. These devices, whether

operated by an internal spring or manual pressure,

“convert an otherwise semiautomatic firearm into a

machinegun.” Id.

The Rule defined “single function of the trigger” as

a “‘single pull of the trigger’ and analogous motions”

and “automatically” as “the result of a self-acting or

self-regulating mechanism that allows the firing of

multiple rounds through a single pull of the trigger.”

Id. Individuals currently in possession of bump stocks

were directed to either destroy them or abandon them

at an ATF facility prior to the rule taking effect on

March 26, 2019. Id. at 66,514, 66,515.

In December 2018, pursuant to the Bureau’s notice

of final rulemaking, Plaintiffs sought a preliminary

injunction to prevent the rule from taking effect. The

District Court denied that request, finding the

Bureau’s interpretation of the relevant statutory

terms—“single function of the trigger” and

“automatically”—reasonable under Chevron. Guedes v.

ATF, 356 F. Supp. 3d 109 (D.D.C. 2019) (“Guedes I”).

App. 7

We affirmed the District Court’s decision on the

same basis. Guedes v. ATF, 920 F.3d 1, 6 (D.C. Cir.

2019) (per curiam) (“Guedes II”). In our view, the

Chevron framework applied, notwithstanding

Plaintiffs’ objections, because the rule was legislative

in character; the government could not waive Chevron

deference; and Chevron applies in equal force to

provisions with criminal penalties. Id. at 17–28.

Because we found “single function of the trigger” and

“automatically” ambiguous under the National

Firearms Act and Gun Control Act and the agency’s

interpretations reasonable, we ruled in the Bureau’s

favor.

The Supreme Court denied Plaintiffs’ petition for

certiorari. Guedes v. ATF, 140 S. Ct. 789 (2020) (Mem.).

In a separate statement, Justice Gorsuch articulated

his view that Chevron did not apply because of the

government’s express waiver of the doctrine and the

statute’s criminal penalties. Id. at 790. He nevertheless

concurred in the petition’s denial, finding that the

government’s position could be substantiated at the

merits stage and noting that other courts of appeals

were currently considering challenges to the Rule. Id.

at 791.

Now before us is the District Court’s grant of the

government’s motion for summary judgment and denial

of Plaintiffs’ cross-motion for summary judgment.

Guedes v. ATF, 520 F. Supp. 3d 51, 58 (D.D.C. 2021)

(“Guedes III”). For the same reasons discussed in

Guedes I and II, the District Court found the Bureau

reasonably construed the statute under Chevron and

rejected Plaintiffs’ challenges on the merits. Id. at 65.

App. 8

II.

We have jurisdiction over this appeal under 28

U.S.C. § 1291, and we review a grant or dismissal of a

motion for summary judgment de novo. Baylor v.

Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 944

(D.C. Cir. 2017).

III.

The government urges us to decide this appeal

based on the law of the case doctrine, which instructs

that “the same issue presented a second time in the

same case in the same court should lead to the same

result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.

Cir. 1996). The doctrine is a discretionary prudential

doctrine, not a jurisdictional bar, and we decline to

apply it here. Crocker v. Piedmont Aviation, Inc., 49

F.3d 735, 739–40 (D.C. Cir. 1995). This is not a

situation in which we are reaching a different result on

the same legal issue in the same case, which could

require showing “extraordinary circumstances.” Sherley

v. Sebelius, 689 F.3d 776, 781 (D.C. Cir. 2012) (quoting

LaShawn A., 87 F.3d at 1393). Rather, we ultimately

reach the “same result” as the Guedes II panel, id., in

that we likewise sustain the Bump Stock Rule.

If we were reaching a different result, we would

assess our discretionary decision to do so under “the

preliminary injunction exception to the law-of-the-case

doctrine.” Sherley, 689 F.3d at 781. We need not fit

within that exception, though, in circumstances in

which we reach the same result. To be sure, we reach

that result via a different path. But we are unaware of

App. 9

any decision saying that the pursuit of a different

path—as opposed to the reaching of a different

result—requires fitting within an exception to the lawof-the-case doctrine or a showing of extraordinary

circumstances, especially when we have no need here

to revisit the reasoning of the Guedes II panel. And we

explain next why we opt to sustain the validity of the

Bump Stock Rule in a different way than did that

panel.

The threshold question is whether to treat this case

as a matter of pure statutory interpretation or to apply

the Chevron framework. Both parties advocate for the

former. Plaintiffs argue that Chevron does not apply for

a multitude of reasons: the rule is interpretive in

nature; the government waived Chevron deference; the

Court may not apply Chevron to a statute with criminal

penalties; and the rule of lenity must supersede

Chevron in the criminal context. The Bureau also

characterizes the Rule as interpretive, and it likewise

urges us to analyze the Rule under a statutory

interpretation framework.

The Guedes II panel employed the Chevron

framework—just as the District Court had done—in

denying the motion for preliminary injunction. The

panel concluded that the Bump Stock Rule was a

legislative rule; the Bureau explicitly relied on Chevron

in crafting it; the government cannot recharacterize a

rule as legislative or interpretative during litigation;

and the government cannot waive Chevron. 920 F.3d at

18, 21–23.

App. 10

Ultimately, we need not wrestle with the Chevron

framework here. Rather, the parties have asked us to

dispense with the Chevron framework, and in this

circumstance, we think it is appropriate to do so. See

Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022)

(rejecting agency’s interpretation “after employing

traditional tools of statutory interpretation,” rather

than inquiring into the interpretation’s reasonableness

under Chevron). Using a statutory interpretation lens,

we decide that the Bureau offered the best construction

of the statute without wading into the subsidiary

questions that the Chevron analysis poses.

This approach also comports with how the Bureau

engaged in the rulemaking exercise. The Bureau

repeatedly described what it was doing as seeking to

arrive at the “best interpretation” of the statutory text,

and it relied principally on that reasoning during the

rulemaking. Bump Stock Rule, 83 Fed. Reg. at 66,514,

66,517, 66,518, 66,521. This is also the Bureau’s

principal position on appeal. Appellee Br. 28. While the

Bureau contended that it would reach the same result

using a Chevron framework, that argument served as

its fallback position. 83 Fed. Reg. at 66,527 (explaining

that “this rule’s interpretations of ‘automatically’ and

‘single function of the trigger’ in the statutory

definition of ‘machinegun’ accord with the plain

meaning of those terms,” but that “even if those terms

are ambiguous, this rule rests on a reasonable

construction of them”). This jurisprudential approach

thus allows us to address the issues as the parties have

principally framed them for resolution. If we are able

to uphold the Bureau’s definition based on its primary

line of argument, there is no reason to reach its

App. 11

secondary one. See HollyFrontier Cheyenne Ref., LLC

v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021)

(declining to consider whether Chevron deference was

due where government did not invoke it).

Finally, there is no need to decide what deference,

if any, a regulation should receive where we can

conclude that the agency’s interpretation of the statute

is the best one. Our decision to forgo engaging with

questions of Chevron’s applicability is consistent with

how courts have approached agency interpretation

issues in the past. As the Supreme Court explained in

Edelman v. Lynchburg College, “there is no need to

resolve any question of deference,” where the agency

regulation is “not only a reasonable one, but the

position we would adopt even if there was no formal

rule and we were interpreting the statute from

scratch.” 535 U.S. 106, 114 (2002). That is not to say

that the agency’s rule must be the only “permissible”

interpretation of the statute, but only that it must be

the best construction. Id. at 114 & n.8. See also

Washington Reg’l Medicorp v. Burwell, 813 F.3d 357,

362 (D.C. Cir. 2015) (finding no need to engage in

deference analysis where agency’s interpretation is

both reasonable and the best interpretation of the

statute); Am. Hosp. Ass’n v. Becerra, 142 S. Ct. at 1896

(employing “traditional tools of statutory

interpretation” to analyze an agency rule, without

resort to Chevron or any other form of deference to the

agency); Becerra v. Empire Health Found., 142 S. Ct.

2354, 2368 (2022) (same).

So too here, in relying on the ordinary tools of

statutory interpretation—“text, structure, purpose, and

App. 12

legislative history,” see Pharm. Rsch. & Mfrs. of Am. v.

Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001)—we find

that the Bureau has provided the best reading of the

statute and that the statutory definition of machine

gun as articulated in 26 U.S.C. § 5845(b) extends to

bump stocks.

(i)

Recall the National Firearms Act and Gun Control

Act’s definition of “machinegun”:

any weapon which shoots, is designed to shoot, or

can be readily restored to shoot, automatically more

than one shot, without manual reloading, by a

single function of the trigger. The term shall also

include the frame or receiver of any such weapon,

any part designed and intended solely and

exclusively, or combination of parts designed and

intended, for use in converting a weapon into a

machinegun, and any combination of parts from

which a machinegun can be assembled if such parts

are in the possession or under the control of a

person.

26 U.S.C. § 5845(b). Whether this definition

encompasses bump stocks depends on how we interpret

two of its interior phrases—“single function of the

trigger” and “automatically”—and how those phrases

relate to one another.

Starting with “single function of the trigger,” the

Bureau interprets it as a “‘single pull of the trigger’ and

analogous motions.” Bump Stock Rule, 83 Fed. Reg. at

66,515. The phrase “analogous motions” includes “other

methods of initiating an automatic firing sequence that

App. 13

do not require a pull,” like a push of a button or voice

command. 83 Fed. Reg. at 66,515, 66,534–35. The

Bureau’s interpretation of “single function of the

trigger” thus both defines a “function” of the trigger as

a “pull” of the trigger and clarifies that a “pull” of the

trigger is a shooter’s volitional action that initiates an

automatic firing sequence.

The Bureau offers the best reading of the statutory

phrase in light of the plain language and purpose of the

statute, particularly as compared to Plaintiffs’

unworkable definition. To begin, the Bureau recognized

that it was not interpreting “single function of the

trigger” on a blank slate. In Staples v. United States,

the Supreme Court referred to an “automatic” or “fully

automatic” weapon under the National Firearms Act as

one “that fires repeatedly with a single pull of the

trigger,” in contrast to one “that fires only one shot

with each pull of the trigger.” 511 U.S. 600, 602 n.1

(1994) (emphasis added). Further, in Akins v. United

States, 312 Fed. App’x 197, 200 (11th Cir. 2009) (per

curiam), the Eleventh Circuit found the Bureau’s

interpretation of “single function” as a “single pull of

the trigger” to be consistent “with the statute and its

legislative history.” The Bureau explicitly drew upon

both interpretations in crafting its own. See Bump

Stock Rule, 83 Fed. Reg. at 66,518, 66,527 (quoting

Staples, 511 U.S. at 602 n.1; Akins, 312 Fed. App’x at

200). See also United States v. Camp, 343 F.3d 743, 745

(5th Cir. 2003) (using “pull” and “function”

synonymously in classifying weapon as a machine gun).

Such an interpretation is also consonant with the

ordinary meaning of “function” at the time of the

App. 14

statute’s enactment. Asgrow Seed Co. v. Winterboer,

513 U.S. 179, 187 (1995) (“When terms used in a

statute are undefined, we give them their ordinary

meaning.”).3 In 1934, “function” was defined as “to

perform, execute” or an “activity; doing; performance.”

Function, WEBSTER’S NEW INTERNATIONAL DICTIONARY

(2d ed. 1934). With respect to the statute, the shooter’s

pull is the single “activity” or “performance” of the

trigger that causes the gun to shoot automatically more

than one shot. (Where a different activity causes the

trigger to shoot, like the flip of a switch, the regulation

accounts for it through the inclusion of “and analogous

motions.”).

Indeed, as early as Congress began discussing

restrictions on machine guns through the National

Firearms Act, a “single function of the trigger” was

understood to mean a “single pull.” Congress initially

proposed a definition of “machine gun” based on a

weapon’s capability to fire multiple shots, specifically

a firearm that could automatically or

semiautomatically shoot “twelve or more shots without

Plaintiffs rely on the 1968 dictionary definitions of these terms,

arguing that Congress “narrowed” the definition of machine gun

that year in enacting the Gun Control Act. Appellants’ Opening Br.

23, 27. But “unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning at the time

Congress enacted the statute.” Amoco Prod. Co. v. S. Ute Indian

Tribe, 526 U.S. 865, 874–75 (1999) (internal quotation marks and

citation omitted). See also ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 78 (2012)

(“Words must be given the meaning they had when the text was

adopted.”). Given that Congress enacted the National Firearms Act

in 1934, we look to dictionary definitions at that time.

App. 15

reloading.” See National Firearms Act: Hearings Before

the Comm. on Ways and Means, H.R., on H.R. 9066,

73d Cong. 1 (1934). Testifying before Congress,

President of the National Rifle Association Karl T.

Frederick advocated for an alternative definition that

omitted the number of shots required and incorporated

the “single function of the trigger” language. Id. at 40.

Mr. Frederick further explained that “[t]he

distinguishing feature of a machine gun is that by a

single pull of the trigger the gun continues to fire as

long as there is any ammunition in the belt or in the

magazine.” Id.4 Roughly one month later, Congress

adopted Frederick’s definition word for word. Id. at 83.

See also H.R. Rep. No. 73-1780, at 2 (1934) (noting the

bill’s “usual definition of machine gun as a weapon

designed to shoot more than one shot without reloading

and by a single pull of the trigger”). Reading “single

function” to mean a “single pull” thus reflects the

term’s contemporaneous understanding.

This definition also aligns with Congress’s purpose

in enacting federal legislation on machine guns to

“[s]trictly regulate the manufacture, sale, transfer and

possession of destructive devices” and to “combat the

Frederick also testified that an automatic Colt pistol would not

be a machine gun under his proposed definition because it

“require[d] a separate pull of the trigger for every shot fired.” Id.

at 41. (The name of this weapon is deceptive, given that the ATF

classified an automatic Colt Pistol as a semiautomatic firearm. See

ATF, NEWS MEDIA GUIDE TO FIREARMS 5–6 (1978)). Frederick’s

testimony on this score supports the Bureau’s interpretation that

an automatic gun requires a single pull to set off a sequence of

multiple shots, whereas a semiautomatic gun requires a distinct

pull for each shot. Appellee Br. 47–48.

App. 16

spiralling increase in serious crime in the United

States.” S. Rep. No. 90-1097, at 2,290 (1968); see also

Huddleston v. United States, 415 U.S. 814, 824 (1974)

(“principal purpose” of the Gun Control Act was to

reduce crime) (quoting id. at 2,113–14). Congress’s

concern for the danger posed by machine guns centered

on their destructive potential and exacerbation of

serious crime. Bump stocks present a heightened

capacity for lethality as well; they are estimated to fire

between 400 and 800 bullets per minute, as compared

to a semiautomatic weapon’s 180 bullets per minute.

Amicus Br. for Appellee at 19–20. It is therefore

consistent with congressional purpose to define “single

function” with a focus on the weapon’s ease of use.

Turning to “automatically,” the statutory text

similarly favors the Bureau’s definition. The Bureau

defines “automatically” as “the result of a self-acting or

self-regulating mechanism that allows the firings of

multiple rounds.” Bump Stock Rule, 83 Fed. Reg. at

66,554. This definition pulls directly from dictionaries

of the 1930s, which defined “automatic” as “having a

self-acting or self-regulating mechanism that performs

a required act at a predetermined point in an

operation;—said esp. of machinery or devices which

perform work formerly or usually done by hand.” Bump

Stock Rule, 83 Fed. Reg. at 66,519; Automatic,

WEBSTER’S NEW INTERNATIONAL DICTIONARY (2d ed.

1934). The term speaks of a mechanized process that

requires less human exertion than an activity “usually

done by hand.”

The Bureau’s prior interpretation of “automatically”

focused more on the “self-acting” portion of the

App. 17

definition. 83 Fed. Reg. at 66,517–18. It previously

concluded that a device must contain a spring or

similar self-acting mechanism in order to operate

“automatically”—therefore, bump stocks did not

operate “automatically” because they required some

manual input. Id. In the current rulemaking, the

Bureau correctly recognized not only that “self-acting”

can admit of some human input, but also that the word

“automatically” encompasses devices that are “selfregulating.” Id. at 66,519.

This definition has found approval in past judicial

interpretations. In United States v. Olofson, the

Seventh Circuit concluded that under the National

Firearms Act, “the adverb ‘automatically’ . . . delineates

how the discharge of multiple rounds from a weapon

occurs: as the result of a self-acting mechanism. That

mechanism is one that is set in motion by a single

function of the trigger and is accomplished without

manual reloading.” 563 F.3d 652, 658 (7th Cir. 2009).

Statutory context also helps guide our

interpretation here, given that “automatic” cannot be

read in isolation. The statute defines a machine gun as

a weapon that shoots “automatically more than one

shot, without manual reloading, by a single function of

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

Equally important is the term “by,” defined as “through

the means of; in consequence of;—indicating that which

is instrumental; as, to take by force; to win regard by

showing kindness; to teach by example.” By, WEBSTER’S

NEW INTERNATIONAL DICTIONARY (2d ed. 1934). As used

in the statute, a machine gun is a weapon that

automatically shoots more than one shot “through the

App. 18

means of” or “in consequence of” a single function of the

trigger.

Rather than limiting the term “automatically,” the

phrase “by a single function” clarifies it. With the use

of “by,” “single function” is best understood as the

antecedent to “automatically”—the initiating human

action that sets off a self-regulating sequence of events.

See United States v. Evans, 978 F.2d 1112, 1113 n.2

(9th Cir. 1992) (“‘by a single function of the trigger’

describes the action that enables the weapon to ‘shoot

. . . automatically . . . without manual reloading,’ not

the trigger mechanism.”). The statute does not suggest

that human involvement is confined to the

“predetermined point” of the operation. Instead, “rather

than reading the phrase ‘by a single function of the

trigger’ to mean ‘by only a single function of the

trigger,’ the phrase can naturally be read to establish

only the preconditions for setting off the ‘automatic’

mechanism, without foreclosing some further degree of

manual input.” Guedes II, 920 F.3d at 31.

In sum, under the National Firearms Act and Gun

Control Act, a “single function” of the trigger is best

understood as a “single pull of the trigger” and

“analogous motions,” while automatically is best

understood to mean a “result of a self-acting or selfregulating mechanism.” 83 Fed. Reg. at 66,514. Taken

together, these interpretations provide the best

definition of a machine gun.

(ii)

The best definition of machine gun settled, we turn

to whether a bump stock fits within it. In terms of how

App. 19

a bump stock operates, the District Court found as

follows: “A bump stock replaces a semiautomatic rifle’s

standard stock—the part of the rifle that rests against

the shooter’s shoulder—and enables the shooter to

achieve a faster firing rate. To use a bump stock, the

shooter must maintain forward pressure on the barrel

and, at the same time, pull the trigger and maintain

rearward pressure on the trigger. Once the shooter

pulls the trigger, a bump stock harnesses and directs

the firearm’s recoil energy, thereby forcing the firearm

to shift back and forth, each time ‘bumping’ the

shooter’s stationary trigger finger. In this way, the

shooter is able to reengage the trigger without

additional pulls of the trigger.” Guedes III, 520 F. Supp.

3d at 58, J.A. 43–44. Plaintiffs conceded that they were

not challenging any of the District Court’s factual

findings. See Appellants’ Opening Br. 20 (“there is no

confusion or dispute whatsoever regarding how a bump

stock physically works”); Oral Arg. Tr. at 83–84

(answering “no” to the question of whether Appellants

contended that the “District Court erroneously found a

fact to be undisputed that was actually disputed”).

Based on these facts, a bump stock is a machine gun

under the best interpretation of the statute.

It bears noting that these factual findings

correspond with the Bureau’s statement of undisputed

facts submitted in support of a motion for summary

judgment, which cited evidence in the record in support

of each statement. See Dkt. 61-3 ¶¶ 70–73 (“[u]sing a

bump stock as designed and intended, a shooter does

not need to pull the trigger more than once to produce

more than one shot”). Plaintiffs did not properly

dispute these facts, because their opposition failed to

App. 20

cite any evidence, as required by the federal and local

rules. See Dkt. 63-1 ¶¶ 70–73; Fed. R. Civ.

P. 56(c)(1)(A); Local Rule 7(h)(1).5 “While the local rules

provide the mechanics, the Federal Rules of Civil

Procedure explicitly require a party opposing summary

judgment to support an assertion that a fact is

genuinely disputed with materials in the record.”

Oviedo v. Washington Metro. Area Transit Auth., 948

F.3d 386, 396 (D.C. Cir. 2020). See also Bush v. D.C.,

595 F.3d 384, 387 (D.C. Cir 2010); Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,

150–51 (D.C. Cir. 1996).

Analyzing the District Court’s factual findings

under the Bump Stock Rule, we conclude that they are

consistent with the best interpretation of the statute.

First, as the District Court explained, a shooter

operates a bump stock by a single pull, eliminating the

need for additional pulls. Guedes III, 520 F. Supp. 3d at

58, J.A. 44. The shooter pulls the trigger once and his

finger rests against the extension ledge, or the edge of

the bump stock device. See J.A. 35.6 After the first pull

For example, in response to the Bureau’s description of the

trigger pull initiating a firing sequence, Plaintiffs responded, “In

dispute as to the phrasing of multiple portions of the statement;

which are attempts to draw legal conclusions, not accurately

describe facts.” Dkt. 63-1 ¶ 71.

Plaintiffs entered a video into the record demonstrating how a

bump stock operates. J.A. 35 (citing Patton Media & Consulting,

LLC, Bump Stock Analytical Video FPC/FICG, YOUTUBE (June

14, 2018), https://youtu.be/1OyK2RdO63U). The attached appendix

includes still photographs taken from that video, depicting the

function of the trigger.

App. 21

of the trigger, the stock moves repeatedly back-andforth, causing the trigger to “bump” against the

stationary finger. Thus, only a single “function” or

“pull” of the trigger by the shooter activates the

multiple-shot sequence; no further pulls are needed.

Put differently, using a bump stock, a single pull of the

trigger propels the trigger against the stationary finger

and causes the subsequent shots through the force of

recoil from firing the first bullet. Following the initial

pull of the trigger, if nothing changes (i.e., the shooter

maintains forward pressure on the barrel), the firearm

will continue to fire additional shots continuously. As

found by the District Court, the shooter is “able to

reengage the trigger without additional pulls of the

trigger.” 520 F. Supp. 3d at 58, J.A. 44.

Second, a bump stock functions automatically

because it is self-regulating. The bump stock

“harnesses and directs the firearm’s recoil energy”

along a linear path, “thereby forcing the firearm to

shift back and forth.” Guedes III, 520 F. Supp. 3d at 58,

J.A. 43–44. That process will not conclude until the

shooter releases forward pressure on the barrel, the

weapon runs out of ammunition, or it malfunctions. In

other words, a bump stock regulates the weapon’s backand-forth movement after a predetermined point in an

operation—the shooter’s pull of the trigger—and

remains self-regulating as long as the shooter

maintains pressure on the barrel.

Looking to the specific bump stock devices at issue,

even the manufacturer’s description admits of this

interpretation of “automatic.” Plaintiff Damien Guedes

purchased his bump stock device from Bump Fire

App. 22

Systems, while Plaintiff Shane Roden purchased a

Slide Fire bump stock device. See Am. Compl. at 19–20,

Guedes I (No.18-cv-02988). In an explanation of firing

with a bump stock, the manufacturer Bump Fire

Systems described it as a legal method of “full-auto

firing.” Administrative Record 840. According to the

description, the shooter operates the bump stock “by

gripping the fore-end of the barrel and pulling it

forward,” allowing him “to recreate the feeling of

automatic firing.” Id. This description confirms what

the Bureau sets forth: a bump stock enables a shooter

to engage in automatic firing by pulling the trigger and

maintaining pressure on the stock.

This interpretation of “automatically” also comports

with how the United States Patent and Trademark

Office (“USPTO”) interprets the term with respect to

firearms. During the rulemaking process, the Bureau

observed that Slide Fire, the manufacturer of the bump

stocks used in the Las Vegas shooting, “has obtained

multiple patents for its designs, and has rigorously

enforced the patents to prevent competitors from

infringing them.” 83 Fed. Reg. at 13,443; see also 83

Fed. Reg. at 66,538, 66,545 (discussing patents);

J.A. 32, Dkt. 61-1 at 16 (discussing patent application);

Dkt. 61-3 ¶ 42 (referring to patents); Administrative

Record 382–90 (patent application); id. at 834

(referring to patents). The USPTO has classified three

different Slide Fire bump stock patents as primarily

within the subclass 89/140,7 which is used for weapons

that are “[c]onvertible to full automatic,” meaning

U.S. Patent No. 8,356,542, at [52]; U.S. Patent No. 8,176,835, at

[52]; U.S. Patent No. 8,127,658, at [52].

App. 23

“[g]uns wherein the firing device is selectively operable

either full-automatic or semi-automatic.” Class 89

Ordnance, Classification Resources, USPTO,

https://bit.ly/ 3c92Dyd.8 The USPTO further explains

that “[t]he terms ‘full-automatic’ or ‘automatic’ are

applied to firing devices which effect continuous fire as

long as the trigger is retracted and ammunition is

supplied to the gun.” Id. While not dispositive, it is

nonetheless significant that the USPTO classifies the

bump stock as a device that enables a semiautomatic

weapon to operate in a manner functionally equivalent

to that of a fully automatic weapon.9

Accordingly, under the best interpretation of the

statute, a bump stock is a self-regulating mechanism

that allows a shooter to shoot more than one shot

through a single pull of the trigger. As such, it is a

machine gun under the National Firearms Act and Gun

Control Act.

In the USPTO classification system, “[s]ubclasses delineate

processes, structural features, and functional features of the

subject matter encompassed within the scope of a class.” Amgen

Inc. v. F. Hoffman-La Roche, Ltd., 580 F.3d 1340, 1347 n.1 (Fed.

Cir. 2009).

What’s more, all three patents describe a key feature of the bump

stock as directing the recoil force along a “constrained linear path,”

see ‘542 Patent col. 3, l. 23; ‘835 Patent col. 7, l. 51; ‘658

Patent col. 3, l. 49–50, which is the “self-regulating” (i.e.

automatic) feature that enables the recoil of the weapon to propel

the trigger repeatedly into the stationary finger, resulting in the

continuous firing of the weapon. See supra at 19.

App. 24

(iii)

Unlike the Bureau, Plaintiffs have failed to show

that their “machine gun” definition is workable. See

United States v. California, 381 U.S. 139, 165 (1965)

(“we best fill our responsibility of giving content to the

words which Congress employed by adopting the best

and most workable definitions available”). With regard

to “single function of the trigger,” Plaintiffs argue for a

trigger-focused, rather than a shooter-focused,

interpretation. In their view, the statutory language

refers to the mechanical action of the trigger itself. See

Appellants’ Opening Br. 23–24 (“‘function’ thus most

reasonably refers to the mechanical action of the

trigger” and “the function of the trigger is complete

when the hammer is released, and a shot is fired”).

Drawing upon the Sixth Circuit’s now-overturned

opinion, they contend that this phrase “necessarily

refers to the trigger and not to the shooter or the

shooter’s act of pulling.” Appellants’ Opening Br. 23

(quoting Gun Owners of America, Inc. v. Garland, 992

F.3d 446, 471 (6th Cir. 2021), vacated, 19 F.4th 890

(6th Cir. 2021) (en banc)). Thus, “[a]ny subsequent

bump, pull, or other interaction between the shooter’s

finger and the trigger . . . causes a second or

subsequent function of the trigger, not a continuation

of the initial completed function.” Id. at 24. Because a

semiautomatic gun outfitted with a bump stock

releases the hammer for each discharge, they assert

that it does not fire more than one round via a single

function of the trigger.

Yet, when asked at oral argument whether a

hypothetical invention—a mechanical hand with a fast,

App. 25

continuously moving trigger finger that could be

attached to a semiautomatic gun and operated by a

push of a button—qualified as a machine gun,

Plaintiffs answered in the affirmative. Oral Arg. Tr. at

81–83; see also id. at 56 for earlier discussion.

According to Plaintiffs, we could redefine the trigger in

this scenario to the button being pressed, rather than

the internal trigger mechanism. But this reasoning

diverges from Plaintiffs’ definition of “single function

of the trigger” as a mechanistic act of the conventional

firearm trigger itself. There are no two ways about it:

either the trigger is the lever that releases the hammer

and discharges a bullet, or it is not. J.A. 71. Such a

concession shows that Plaintiffs’ definition is

unworkable, internally inconsistent, and

counterintuitive.

By contrast, the Bump Stock Rule’s definition would

encompass this mechanical hand device. In response to

comments about different trigger activation methods,

the Bureau added the phrase “and analogous motions”

to the final rule, thereby including devices that

function via “a push or other method of initiating the

firing cycle.” 83 Fed. Reg. at 66,534–35. In this

scenario, pushing the button neatly qualifies as an

“analogous motion.”

Even assuming, moreover, that it were appropriate

to reconceive of the trigger on the firearm with the

mechanical hand device to be the button that activates

the mechanical hand’s trigger finger, imagine another

type of firearm that contains no such button but only a

standard trigger, and that operates such that the

shooter’s pull of the trigger causes an internal motor to

App. 26

initiate a repeated movement of the trigger back and

forth—with a release of the hammer each time—

producing a continuous, automatic series of shots.

Suppose that the weapon’s trigger would automatically

move back and forth after the shooter’s initial pull of

the trigger until the ammunition is spent, even if the

shooter removes his trigger finger from the weapon

during the firing sequence. Indeed, suppose that the

shooter can stop the automatic firing sequence, should

he so choose, by placing his trigger finger back on the

weapon and contacting the automatically moving

trigger.

Under Plaintiffs’ strict understanding of the “single

function of the trigger” to mean the mechanistic

movement of the trigger itself, this weapon would

evade classification as a machine gun even though the

shooter’s initial pull of the trigger causes an automatic

series of trigger movements and a resulting automatic

series of shots, without any further input by the

shooter whatsoever. The weapon is similar to the Akins

Accelerator, see 83 Fed. Reg. at 66,517, except that the

hypothetical weapon involves an internal motor that

causes the trigger to automatically move back and forth

after the initial pull, as opposed to an internal spring

that causes the barrel to automatically move back and

forth into a stationary trigger finger after the initial

pull: in either case, the trigger continues to move, and

shots continue to fire, without any additional input

from the shooter.

Plaintiffs believe that the Akins Accelerator was

mistakenly dubbed a machine gun because it, like a

bump stock device, fires only one round with each

App. 27

mechanical movement of the trigger. See Appellants’

Opening Br. 8 n.2. The same is true of the hypothetical

weapon described here. And insofar as Plaintiffs might

nonetheless attempt to draw a distinction between the

two, it is hard to see how one would involve a “single

function of the trigger” and the other would not: with

both, the shooter’s initial pull of the trigger initiates an

automatic sequence (caused by an internal motor, on

one hand, and an internal spring, on the other)

whereby the weapon’s trigger then continuously moves

back and forth, causing additional shots to fire, without

any further input by the shooter. And with both, that

automatic sequence continues until ammunition is

exhausted; the weapon malfunctions; or the shooter

takes a new action to stop that sequence. In sum,

Plaintiffs’ proffered interpretation of “single function of

the trigger” is unsound.

Plaintiffs’ interpretation of “automatically” is no

less problematic. They interpret “automatically” as

“self-acting” or requiring only “the expressly specified

initiating action” before operating on its own.

Appellants’ Opening Br. 27–28. In their view, bump

stocks do not operate automatically because the shooter

must maintain constant forward pressure on the bump

stock with his non-trigger hand to continue firing. This

definition would remove what Plaintiffs would describe

as a prototypical machine gun from the realm of

“automatic,” as the shooter must both pull the trigger

and keep his finger depressed on the trigger to continue

firing. Once the force is removed from the trigger, firing

ceases. Per Plaintiffs’ definition, only a gun that

required no human input to fire more than a single

shot would qualify as a machine gun. By this logic, we

App. 28

would no longer characterize even the prototypical

machine gun as a “machine gun,” given the extent of

rearward pressure on the trigger required to operate it.

That cannot be right.

Plaintiffs also point to Congress’s decision to remove

“or semiautomatically” from the definition of machine

gun in the 1968 Gun Control Act as evidence that

“automatically” must be interpreted narrowly in their

favor. Appellants’ Opening Br. 30–32. According to

Plaintiffs, the significance of this erasure is linked to

the Treasury Department’s 1955 ruling that crankoperated Gatling guns were not machine guns. See

Revenue Ruling 55-528, 1955 WL 9410, at *1 (Jan. 1,

1955). Taken together, Plaintiffs argue that Congress

indicated its approval of this ruling by removing “or

semiautomatically” from the statute, thus advancing a

narrow interpretation of the statute. Yet, Plaintiffs

have not offered any evidence of the link between the

1955 ruling and Congress’s 1968 definition

amendment. Moreover, the exclusion of semiautomatic

weapons from the Gun Control Act is not implicated

here; we are concerned only with the conversion of

semiautomatic weapons to fully automatic firearms.

Finally, Plaintiffs’ fear that all semiautomatic

weapons will be subject to regulation because they can

be modified with everyday items, like belt loops, to fire

automatically is unfounded. Unlike a bump stock, a

rubber band or belt loop is not automatic because it is

not self-regulating. Rather than harnessing the

firearm’s recoil energy from a rubber band or belt loop

in a linear path to engage in a continuous firing

sequence, the shooter must harness and direct the

App. 29

recoil energy himself. Bump Stock Rule, 83 Fed. Reg. at

66,533. As the Bureau explained, “the belt loop or

similar manual method requires the shooter to control

the distance that the firearm recoils and the movement

along the plane on which the firearm recoils.” Id.

Harnessing the recoil energy without an automatic

device requires a great deal of skill and renders it

exponentially more difficult to bump fire. These

everyday devices are “objectively different” from bump

stocks and do not qualify as machine guns under the

Bureau’s interpretation. Id.

IV.

Plaintiffs also urge us to apply the rule of lenity.

The rule of lenity instructs courts to resolve ambiguity

in favor of a criminal defendant, but it “only applies if,

after considering text, structure, history, and purpose,

there remains a grievous ambiguity or uncertainty in

the statute that the Court must simply guess at what

Congress intended.” Maracich v. Spears, 570 U.S. 48,

76 (2013). See also Staples, 511 U.S. at 619 n.17

(applying rule of lenity was unnecessary where

meaning could be derived through interpretive tools).

It is only where the Court has exhausted

“everything from which aid can be derived” that lenity

plays a role. Muscarello v. United States, 524 U.S. 125,

138 (1998) (internal quotation marks and citations

omitted). For example, in United States v. Bass, the

Court applied the rule of lenity where it could not

decisively interpret the prosecution’s evidentiary

burden from Title VII of the Omnibus Crime Control

and Safe Streets Act of 1968. 404 U.S. 336, 337–38,

347. Given the lack of clear statutory language,

App. 30

legislative history, and a clear statement of

congressional purpose, the Court resorted to lenity to

approve a narrower construction in this instance. Id. at

347–50. See also United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 221 (1952) (turning to lenity

in Fair Labor Standards Act case where “literal

reading” of text did not illuminate statutory

construction). Fortunately, we are not left to “guess at”

the meaning of the text at issue here, see Maracich, 570

U.S. at 76, given the array of tools at our disposal,

including the statute’s plain language, prior case law,

contemporaneous understandings, and congressional

purpose. As a result, we are not left with the type of

“grievous ambiguity,” see id., that would require the

rule of lenity’s application here.

To be sure, the Bureau’s interpretation is not the

only possible interpretation of the statute. But most

importantly, the task before us is to find the best

interpretation of the statute, which does not mean that

it is the only “permissible” or reasonable interpretation.

See Edelman, 535 U.S. at 114 & n.8 (internal quotation

marks omitted). Further, the predominant concern

among those skeptical of upholding the Bureau’s

interpretation is their view that it is inappropriate to

use the Chevron framework to uphold the regulation,

which is not at issue here. See Guedes v. ATF,

140 S. Ct. 789, 789–91 (2020) (Mem.) (Gorsuch, J.,

concurring in denial of certiorari) (questioning

application of Chevron deference to the rule before us);

Gun Owners of America, Inc. v. Garland, 19 F. 4th 890,

925 (6th Cir. 2021) (Murphy, J., dissenting) (critiquing

circuit courts for failing to interpret statute before

turning to Chevron); Aposhian v. Wilkinson, 989 F.3d

App. 31

890, 894–96 (2021) (Mem.) (Tymkovich, J., dissenting)

(same). And it is worth noting that every circuit to have

considered this question has so far upheld the Bump

Stock Rule. See Cargill v. Garland, 20 F.4th 1004 (5th

Cir. 2021), vacated and en banc granted, -- F.4th -(2022); Gun Owners v. Garland, 19 F.4th 890 (6th Cir.

2021) (en banc); Aposhian v. Barr, 958 F.3d 969 (10th

Cir. 2020), en banc granted but previous order

reinstated, 989 F.3d 890 (Mem.).

The manufacturer of one of the bump stock devices

owned by Plaintiffs once promoted that its product

enabled “Spraying 900 rounds in 60 seconds.” What is

Bump Fire, BUMP FIRE SYS., https://bit.ly/3PdRTNH.

We join those circuits in concluding that these devices,

which enable such prodigious rapid-fire capability upon

a pull of the trigger, fall within the definition of

“machine gun” in the National Firearms Act and Gun

Control Act. For the foregoing reasons, the District

Court’s judgment is affirmed.

So ordered.

App. 32

APPENDIX

Figure 1: The shooter pushes the firing unit so that it

slides forward inside the bump stock and he pulls the

trigger.

Figure 2: After the first shot, the shooter’s finger rests

against the extension ledge of the bump stock, which

“constrains” the recoil and the opposing forward force

so that the firing unit slides in a linear direction,

propelling the firing unit against the stationary finger,

causing the firing cycle to repeat.

App. 33

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Filed February 19, 2021]

No. 18-cv-2988 (DLF)

_________________________________________

DAMIEN GUEDES, et al.,

)

Plaintiffs,

)

BUREAU OF ALCOHOL, TOBACCO,

)

FIREARMS, AND EXPLOSIVES, et al.,

)

Defendants.

)

_________________________________________ )

No. 18-cv-3086 (DLF)

_________________________________________

DAVID CODREA, et al.,

)

Plaintiffs,

)

MONTY WILKINSON,1 Acting Attorney

)

Matthew G. Whitaker was the Acting Attorney General when this

suit was filed; Monty Wilkinson, the current Acting Attorney

General, was automatically substituted in the case caption. See

Fed. R. Civ. P. 25(d).

App. 34

General, et al.,

)

Defendants.

)

_________________________________________ )

MEMORANDUM OPINION

On October 1, 2017, a lone gunman opened fire on

a concert in Las Vegas, killing 58 people and injuring

hundreds more. He used weapons equipped with bump

stocks, which allow a semiautomatic gun to fire at a

faster rate. Following this tragedy, the Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF)

promulgated a rule that classifies weapons equipped

with bump stocks as machineguns under the National

Firearms Act, 26 U.S.C. §§ 5801–5872, thus rendering

them unlawful to possess. See Bump-Stock-Type

Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018). The

plaintiffs brought suit, in separate cases, to enjoin the

rule. This Court held a hearing on their motion for a

preliminary injunction and denied the injunction, see

Guedes v. ATF, 356 F. Supp. 3d 109 (D.D.C. 2019)

(“Guedes I”); the D.C. Circuit affirmed, see Guedes v.

ATF, 920 F.3d 1 (D.C. Cir. 2019) (“Guedes II”). Now

before the Court are the defendants’ Motions for

Summary Judgment, Dkt. 38 (Codrea); Dkt. 61

(Guedes), and the plaintiffs’ Cross Motions for

Summary Judgment, Dkt. 44 (Codrea), Dkt. 62

(Guedes).2 For the same reasons articulated in the

The parties filed identical briefs in each of the above-captioned

cases. See Defs.’ Mot. for Summ. J., Dkt. 38 at 1 n.1 (Codrea)

(noting the parties’ agreement to file identical motions and

responses in each case). Accordingly, the Court addresses the

motions together. In the interest of clarity, the Court will note the

App. 35

Court’s previous Memorandum Opinion and by the

D.C. Circuit, the Court will grant the defendants’

motions for summary judgment and deny the plaintiffs’

cross-motions.

BACKGROUND

The Court previously recounted in detail the facts

and regulatory history underlying this lawsuit. See

Guedes I, 356 F. Supp. 3d at 119–26. To summarize,

the central legal question in this dispute is whether the

National Firearm Act’s definition of “machinegun” can

encompass bump stock devices. A bump stock replaces

a semiautomatic rifle’s standard stock—the part of the

rifle that rests against the shooter’s shoulder—and

enables the shooter to achieve a faster firing rate. To

use a bump stock, the shooter must maintain forward

pressure on the barrel and, at the same time, pull the

trigger and maintain rearward pressure on the trigger.

Once the shooter pulls the trigger, a bump stock

harnesses and directs the firearm’s recoil energy,

thereby forcing the firearm to shift back and forth, each

time “bumping” the shooter’s stationary trigger finger.

The shooter is thus able to reengage the trigger

without additional pulls of the trigger.

The relevant statutes at issue are the National

Firearms Act of 1934 (NFA) and the Firearm Owners

Protection Act of 1986 (FOPA). The NFA provides the

following definition for the term “machinegun”:

accompanying case name in a parenthetical following the citation

of a docket entry.

App. 36

The term “machinegun” means any weapon

which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more

than one shot, without manual reloading, by a

single function of the trigger. The term shall also

include the frame or receiver of any such

weapon, any part designed and intended solely

and exclusively, or combination of parts

designed and intended, for use in converting a

weapon into a machinegun, and any combination

of parts from which a machinegun can be

assembled if such parts are in the possession or

under the control of a person.

26 U.S.C. § 5845(b). The FOPA generally makes it

“unlawful for any person to transfer or possess” a

newly manufactured “machinegun,” 18 U.S.C. § 922(o),

and incorporates the NFA’s definition of that term, 18

U.S.C. § 921(a)(23) (“The term ‘machinegun’ has the

meaning given such term in . . . the National Firearms

Act.”). The FOPA also amended a previous grant of

rulemaking authority to provide that “[t]he Attorney

General may prescribe only such rules and regulations

as are necessary to carry out the provisions of this

chapter.” 18 U.S.C. § 926(a); see also Nat’l Rifle Ass’n

v. Brady, 914 F.2d 475, 478 (4th Cir. 1990) (discussing

the statutory change).

On March 29, 2018, ATF proposed the rule banning

bump stocks and formally provided the public with

90 days, as required by 18 U.S.C. § 926(b), to submit

written comments online, by mail, or by facsimile.

Bump-Stock-Type Devices, 83 Fed. Reg. at 13442

(proposed Mar. 29, 2018). In the final rule published on

App. 37

December 26, 2018, ATF reversed its earlier position

and concluded that a standard bump stock device is a

“machinegun” as defined in the NFA. Id. at 66543,

66553. ATF interpreted the term “single function of the

trigger” to mean a “single pull of the trigger.” Id. at

66553. ATF also interpreted “automatically” to mean

“as the result of a self-acting or self-regulating

mechanism that allows the firing of multiple rounds

through a single pull of the trigger.” Id. Based on these

definitions, ATF added a sentence to the regulatory

definition of “machinegun” to make clear that the term

“machinegun” in the NFA includes “bump-stock-type

device[s],” which “allow[] a semi-automatic firearm to

shoot more than one shot with a single pull of the

trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the

trigger resets and continues firing without additional

physical manipulation of the trigger by the shooter.” Id.

at 66553–54. Under the rule, “current possessors” of

bump stocks must either destroy them or abandon

them at an ATF office. Id. at 66530.

The Guedes plaintiffs filed their complaint and

moved for a preliminary injunction on December 18,

2018. See No. 18-cv-2988, Dkt. 1, 2. The Codrea

plaintiffs filed their complaint on December 27, 2018,

see No. 18-cv-3086, Dkt. 1, and likewise moved for a

preliminary injunction on January 18, 2019. See Dkt. 5

(Codrea). Following hearings on February 6, 2019

(Guedes) and February 19, 2019 (Codrea), the Court

denied the motions for a preliminary injunction

because the plaintiffs lacked a reasonable likelihood of

success on the merits of their legal theories. See

Guedes I, 356 F. Supp. 3d 109 (D.D.C. 2019). The D.C.

App. 38

Circuit affirmed. See Guedes II, 920 F.3d 1. In relevant

part, the D.C. Circuit held that the bump stock rule

was a legislative rule, that Chevron deference was

proper, and that ATF reasonably interpreted the

ambiguous statute. See generally id. The plaintiffs then

petitioned the Supreme Court of the United States for

a writ of certiorari, which the Court denied. See Guedes

v. ATF, No. 19-296, 140 S. Ct. 789 (Mar. 2, 2020).3 The

cross-motions for summary judgment in the two cases

are now ripe for review.

II.

LEGAL STANDARDS

A court grants summary judgment if the moving

party “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986). A “material” fact is one with potential to change

the substantive outcome of the litigation. See id. at 248;

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).

A dispute is “genuine” if a reasonable jury could

determine that the evidence warrants a verdict for the

nonmoving party. See Liberty Lobby, 477 U.S. at 248;

Holcomb, 433 F.3d at 895.

In an Administrative Procedure Act case, summary

judgment “serves as the mechanism for deciding, as a

matter of law, whether the agency action is supported

by the administrative record and otherwise consistent

with the APA standard of review.” Sierra Club v.

Justice Gorsuch filed a Statement with the denial of certiorari

explaining his view that Chevron deference is inappropriate in this

case. 140 S. Ct. 789 (Statement of Justice Gorsuch).

App. 39

Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). The

Court will “hold unlawful and set aside” agency action

that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” 5 U.S.C.

§ 706(2)(A), “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right,”

id. § 706(2)(C), or “unsupported by substantial

evidence,” id. § 706(2)(E).

In an arbitrary and capricious challenge, the core

question is whether the agency’s decision was “the

product of reasoned decisionmaking.” Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 52 (1983); see also Nat’l Telephone

Coop. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009)

(“The APA’s arbitrary-and-capricious standard requires

that agency rules be reasonable and reasonably

explained.”). The court’s review is “fundamentally

deferential—especially with respect to matters relating

to an agency’s areas of technical expertise.” Fox v.

Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (quotation

marks and alteration omitted). The court “is not to

substitute its judgment for that of the agency.” State

Farm, 463 U.S. at 43. “Nevertheless, the agency must

examine the relevant data and articulate a satisfactory

explanation for its action including a rational

connection between the facts found and the choice

made.” Id. (internal quotation marks omitted). When

reviewing that explanation, the court “must consider

whether the decision was based on a consideration of

the relevant factors and whether there has been a clear

error of judgment.” Id. (internal quotation marks

omitted). For example, an agency action is arbitrary

and capricious if the agency “entirely failed to consider

App. 40

an important aspect of the problem, offered an

explanation for its decision that runs counter to the

evidence before [it], or [the explanation] is so implausible

that it could not be ascribed to a difference in view or the

product of agency expertise.” Id. The party challenging

an agency’s action as arbitrary and capricious bears the

burden of proof. Pierce v. SEC, 786 F.3d 1027, 1035 (D.C.

Cir. 2015).

To the extent that an agency action is based on the

agency’s interpretation of a statute it administers, the

court’s review is governed by the two-step Chevron

doctrine. At Step One, a court must determine

“whether Congress has directly spoken to the precise

question at issue” or instead has delegated to an

agency the legislative authority to “elucidate a specific

provision of the statute by regulation.” Chevron,

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

837, 842, 843–44. If the latter, a court must reach Step

Two, which asks whether the agency action “is based

on a permissible construction of the statute” or instead

is “manifestly contrary to the statute.” Id. at 843, 844.

III.

ANALYSIS

The plaintiffs bring several claims under the

Administrative Procedure Act (APA), 5 U.S.C. § 551 et

seq. See generally Compl. Dkt. 1 (Codrea); Compl.

Dkt. 1 (Guedes). The APA provides that a court must

“hold unlawful and set aside agency action, findings,

and conclusions found to be . . . arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2). The plaintiffs principally

argue that the bump stock rule cannot be squared with

the statutory definition of a machinegun, that ATF

App. 41

lacked statutory authority to promulgate the rule as it

did, that ATF arbitrarily drew lines in distinguishing

bump stocks from other devices, that ATF should have

held a public hearing, that ATF improperly changed its

previous position, and that ATF was unduly influenced

by political actors. See generally Am. Memo. in Supp. of

Pls.’ Cross Mot. for Summ. J., Dkt. 41 (Codrea). In

addition to the APA claims, the plaintiffs also bring due

process, separation of powers, and takings claims.4 Id.

A. The APA Claims

1. ATF’s Statutory Interpretation

Invoking its general rulemaking authority under

§ 926(a), ATF promulgated the bump stock rule based

on its interpretation of “single function of the trigger”

and “automatically,” two terms that Congress left

undefined. ATF defined the phrase “single function of

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

analogous motions.” 83 Fed. Reg. at 66553. And it

defined “automatically” to mean “functioning as the

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

allows the firing of multiple rounds through a single

function of the trigger.” Id. Applying these definitions,

At the preliminary injunction stage, the plaintiffs also brought a

statutory and constitutional challenge to Matthew Whitaker’s

designation as Acting Attorney General. “This case no longer

presents a challenge to the validity of the designation of former

Acting Attorney General Matthew Whitaker,” however, as that

question “has already been litigated to dismissal in a separate case

before this Court.” Defs.’ Mot. for Summ. J. at 8 n.6 (citing

Firearms Policy Coal. v. Barr, 419 F. Supp. 3d 118 (D.D.C. 2019));

see generally Am. Memo. in Supp. of Pls.’ Cross Mot. for Summ. J.

(not raising the Whitaker issue on summary judgment).

App. 42

it added a sentence to the regulatory definition of

“machinegun” that explicitly states that the term

“includes a bump-stock-type device,” which “allows a

semi-automatic firearm to shoot more than one shot

with a single pull of the trigger by harnessing the recoil

energy of the semi-automatic firearm to which it is

affixed so that the trigger resets and continues firing

without additional physical manipulation of the trigger

by the shooter.” Id. at 66553–54.

a. Whether the Chevron Doctrine Applies

Because ATF interpreted a statute in promulgating

the bump stock rule, the threshold question is whether

the Chevron doctrine applies. Chevron, U.S.A., Inc. v.

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

plaintiffs argue that Chevron deference does not apply

because 1) ATF waived Chevron, 2) the rule of lenity

should prevent the application of Chevron, and

3) Chevron is unconstitutional. The first two arguments

have already been addressed in detail by the D.C.

Circuit in Guedes II, which held that the application of

Chevron deference in this case was proper, 920 F.3d at

17–22, and the third argument is foreclosed by binding

precedent. The Court will address each in turn.

App. 43

First, as to waiver,5 the D.C. Circuit held that “an

agency’s lawyers . . . cannot waive Chevron if the

underlying agency action ‘manifests its engagement in

the kind of interpretive exercise to which review under

Chevron generally applies.’” Id. at 23 (citing

SoundExchange, Inc. v. Copyright Royalty Bd., 904

F.3d 41, 54 (D.C. Cir. 2018)). It further held that “[i]n

this case, the Bump-Stock Rule plainly indicates the

It is not entirely clear that the defendants waived Chevron

deference before this Court, even if such a waiver were possible. In

the rulemaking itself, ATF explicitly relied on Chevron, invoking

the doctrine by name and applying traditional two-step Chevron

analysis. Guedes II, 920 F.3d at 8, 19 (noting that ATF

“elaborate[ed] at length as to how Chevron applies to the Rule”).

When the Court raised the issue of Chevron at the preliminary

injunction hearing, see Transcript of Preliminary Injunction

Hearing at 57:12-13, Dkt. 25 (Codrea), counsel for the plaintiffs

responded that none of the parties had briefed the issue, id. at

57:18-20, and counsel for the defendants did not address the issue

during the hearing, see generally id. Now, at the summary

judgment stage the defendants argue that if the Court were to

apply Chevron, the rule should be upheld on that basis. Defs.’

Reply, Dkt. 42 at 17–18 (Codrea). At oral argument before the

Court of Appeals, however, government counsel informed the

Court that “if the Rule’s validity turns on the applicability of

Chevron, it would prefer that the Rule be set aside rather than

upheld under Chevron.” Guedes II, 920 F.3d at 21. These mixed

signals leave some question as to whether the defendants waived

Chevron deference. Wood v. Milyard, 566 U.S. 463, 470 n.4 (2012)

("A waived claim or defense is one that a party has knowingly and

intelligently relinquished; a forfeited plea is one that a party has

merely failed to preserve.”); see also Guedes II, 920 F.3d at 22

(noting that the D.C. Circuit has already held that an agency

cannot forfeit Chevron deference if the forfeiture is not consistent

with the agency’s underlying actions). Ultimately, though, the D.C.

Circuit’s clear holding on waiver in Guedes II renders the question

academic.

App. 44

agency’s view that it was engaging in a rulemaking

entitled to Chevron deference.” Id. For example, the

agency specifically referenced the Chevron doctrine in

its rulemaking. See id. (“[A]nother telltale sign of the

agency’s belief that it was promulgating a rule entitled

to Chevron deference is the Rule’s invocation of

Chevron by name.”); 83 Fed. Reg. at 66,527 (invoking

Chevron). Accordingly, any supposed waiver cannot

overcome this conclusion.6 Second, the argument that

the rule of lenity should precede Chevron deference, or

more broadly, that Chevron should not apply in cases

involving criminal penalties, is foreclosed by the weight

of precedent to the contrary. As the D.C. Circuit

discussed at length, the Supreme Court has repeatedly

applied Chevron to regulations with criminal

For this same reason, any argument that ATF was operating

under the mistaken assumption that it lacked discretion to

interpret the statutory text does not accord with the

administrative record. See Am. Memo. in Supp. of Pls.’ Cross Mot.

for Summ. J. at 36. In truth, “[t]he agency plainly believed it was

acting in a manner warranting Chevron treatment given that it

expressly invoked the Chevron framework in the Rule.” Guedes II,

920 F.3d at 21. For example, in response to comments, ATF

explained that it “ha[d] the authority to interpret elements of the

definition of ‘machinegun’ like ‘automatically’ and ‘single function

of the trigger,’” and that its “construction of those terms is

reasonable under Chevron.” 83 Fed. Reg. at 66,526–27 (emphasis

added); see Guedes II, 920 F.3d at 23. Though ATF also

emphasized that the rule’s interpretations were consistent with

the plain meaning of those terms, id. at 66527, it concluded that,

“even if those terms are ambiguous, this rule rests on a reasonable

construction of them.” Id. That ATF believed (and continues to

believe) that its interpretation accords with the best reading of the

text does not mean that the agency labored under an incorrect

assumption requiring remand.

App. 45

implications. Guedes II, 920 F.3d at 24 (listing

examples). Indeed, in the case of Chevron v. NRDC

itself, the regulation in controversy contained a

criminal penalty of up to one year of imprisonment. Id.

The securities laws, which frequently receive Chevron

deference despite the criminal implications of securities

regulations, provide another compelling example. Id.

(collecting cases).

To be sure, the Supreme Court has stated that

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

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

191 (2014). Yet despite this principle, the Supreme

Court has never held—in the face of the many

examples to the contrary—that Chevron does not apply

in cases with criminal implications, or that the rule of

lenity subsumes Chevron. Guedes II, 920 F.3d at 27. In

fact, as to lenity, “the [Supreme] Court squarely

rejected the argument that ‘the rule of lenity should

foreclose any deference to’ the agency’s interpretation

of a statute simply ‘because the statute includes

criminal penalties.’” See id. at 27 (citing Babbitt v.

Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687, 704 n.18, (1995)). And the D.C.

Circuit, relying on Babbitt, has done the same.

Competitive Enter. Inst. v. United States Dep’t of

Transportation, 863 F.3d 911, 915 n.4 (D.C. Cir. 2017)

(“We apply the Chevron framework to this facial

challenge even though violating § 41706 can bring

criminal penalties.”) (citing Babbitt, 515 U.S. at 704

n.18)). Finally, as for the argument that Chevron

deference violates the Constitution, this Court is bound

by the precedent of Chevron v. NRDC, 467 U.S. 837,

and must apply the doctrine as precedent dictates.

App. 46

b. Whether ATF Is Entitled to Chevron

Deference

Under the familiar Chevron framework, “[i]f

Congress has directly spoken to [an] issue, that is the

end of the matter.” Confederated Tribes of Grand

Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 558 (D.C.

Cir. 2016) (citing Chevron, 467 U.S. 837). “[T]he court,

as well [as] the agency, must give effect to the

unambiguously expressed intent of Congress.” Lubow

v. U.S. Dep’t of State, 783 F.3d 877, 884 (D.C. Cir.

2015) (quoting Chevron, 467 U.S. at 842–43). But if the

text is silent or ambiguous, courts must “determine if

the agency’s interpretation is permissible, and if so,

defer to it.” Confederated Tribes of Grand Ronde Cmty.,

830 F.3d at 558. To determine “whether a statute is

ambiguous” and “ultimately . . . whether [an] agency’s

interpretation is permissible or instead is foreclosed by

the statute,” courts “employ all the tools of statutory

interpretation.” Loving v. IRS, 742 F.3d 1013, 1016

(D.C. Cir. 2014). Most importantly, courts “interpret

the words [of a statute] consistent with their ordinary

meaning at the time Congress enacted the statute.”

Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067,

2070 (2018) (internal quotation marks and alteration

omitted); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 78

(2012) (“Words must be given the meaning they had

when the text was adopted.”).

The first question, then, is whether the statutory

language at issue here is ambiguous. Both this Court

at the preliminary injunction stage and the D.C.

Circuit on appeal determined that the statutory

App. 47

language was ambiguous. See Guedes II, 920 F.3d at

28–30; Guedes I, 356 F. Supp. 3d at 130–32. In

particular, this Court recognized that although

“Congress defined ‘machinegun’ in the NFA to include

devices that permit a firearm to shoot ‘automatically

more than one shot, without manual reloading, by a

single function of the trigger,’” Guedes I, 356

F. Supp. 3d at 120 (quoting 26 U.S.C. § 5845(b)), “it did

not further define the terms single function of the

trigger or automatically.” Id. (internal quotation marks

omitted). This Court went on to employ the ordinary

tools of statutory interpretation, including

contemporaneous dictionary definitions, to find that

the terms “single function of the trigger” and

“automatically” in this context are ambiguous.

Guedes I, 356 F. Supp. 3d at 130–32. The D.C. Circuit

likewise held that “the statutory phrase ‘single function

of the trigger’ admits of more than one interpretation.”

Guedes II, 920 F.3d at 29. “It could mean a mechanical

act of the trigger,” id. at 29 (internal quotation marks

omitted), an interpretation that would “tend to exclude

bump-stock devices,” id., or it could mean “a single pull

of the trigger from the perspective of the shooter,” id.,

which “would tend to include bump-stock devices.” Id.

In other words, the statutory language remains

ambiguous.7

The plaintiffs attempt to overcome this conclusion by arguing

that Congress “ratified” their interpretation of the statutory

language to exclude bump stocks. See Am. Memo. in Supp. of Pls.’

Cross Mot. for Summ. J. at 24 (referencing Pub. L. 90-618, 48 Stat.

1213, 1231 (Oct. 22, 1968)). By way of background, in 1955, ATF

interpreted the NFA’s definition of machinegun to include some

Gatling guns while excluding others. Revenue Ruling 55-528, 1955

App. 48

Thus, the next step is to determine whether or not

ATF’s interpretation of the statutory language is

reasonable. “This inquiry, often called Chevron Step

Two, does not require the best interpretation, only a

reasonable one.” Van Hollen, Jr. v. FEC, 811 F.3d 486,

492 (D.C. Cir. 2016) (internal quotation marks

omitted); see also id. (“We are bound to uphold agency

interpretations regardless [of] whether there may be

other reasonable, or even more reasonable, views.”

(internal quotation marks and alteration omitted)).

The interpretation of the phrase “single function of

the trigger” is reasonable. See Guedes II, 920 F.3d at

31. Courts have often used the word “pull” when

WL 9410 (Jan. 1, 1955). Thirteen years later, in 1968, Congress

reenacted the NFA’s definition of machinegun with one change—

it removed the phrase “or semiautomatically” from the first

sentence. See Pub. L. 90-618, 48 Stat. 1213, 1231 (Oct. 22, 1968).

The plaintiffs contend that this congressional action implies that

bump stocks cannot be included in the current definition. See Am.

Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at 24. No doubt,

“Congress is presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation when

it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S.

575, 580 (1978). But that is not the case here. In fact, Congress

reenacted the statute (over a decade later) with a major change

entirely unrelated to ATF’s interpretation on Gatling guns.

Further, the plaintiffs point to no evidence that ATF’s

interpretation on Gatling guns so settled the definition of

“machinegun” that it implicitly bound the future Congress. See

Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (“When administrative

and judicial interpretations have settled the meaning of an existing

statutory provision, repetition of the same language in a new

statute indicates, as a general matter, the intent to incorporate its

administrative and judicial interpretations as well.”) (emphasis

added). In sum, this argument is unpersuasive.

App. 49

discussing the statutory definition of “machinegun.”

The Supreme Court, for example, explained that the

statutory definition encompasses a weapon that “fires

repeatedly with a single pull of the trigger,” meaning

“once its trigger is depressed, the weapon will

automatically continue to fire until its trigger is

released or the ammunition is exhausted.” Staples v.

United States, 511 U.S. 600, 602 n.1 (1994) (emphasis

added). The Court then contrasted automatic

machineguns with semiautomatic weapons that “fire[]

only one shot with each pull of the trigger” and

“require[] no manual manipulation by the operator to

place another round in the chamber after each round is

fired.” Id. And the Eleventh Circuit adopted a similar

interpretation when it upheld ATF’s decision to treat

Akins Accelerators as machineguns because “a single

application of the trigger by a gunman”—a single

pull—caused the gun with the affixed bump stock to

“fire continuously . . . until the gunman release[d] the

trigger or the ammunition [wa]s exhausted.” Akins v.

United States, 312 F. App’x 197, 200 (11th Cir. 2009).

The Tenth Circuit has held that a uniquely designed

firearm was “a machine gun within the statutory

definition” because “the shooter could, by fully pulling

the trigger, and it only, at the point of maximum

leverage, obtain automation with a single trigger

function.” United States v. Oakes, 564 F.2d 384, 388

(10th Cir. 1977) (emphasis added). In sum, ATF acted

reasonably in defining the phrase “single function of

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

analogous motions.” 83 Fed. Reg. at 66553.

The interpretation of the word “automatically” in

this context is also reasonable. See Guedes II, 920 F.3d

App. 50

at 31. ATF reasoned that a bump stock permits a

firearm to function automatically by “directing the

recoil energy of the discharged rounds into the space

created by the sliding stock . . . in constrained linear

rearward and forward paths” so that the shooter can

maintain a “continuous firing sequence.” Id. at 66532

(internal quotation marks omitted). It is true that a

firearm with an affixed bump stock requires some

manual inputs: the shooter must “maintain[] constant

forward pressure with the non-trigger hand on the

barrel-shroud or fore-grip of the rifle, and maintain[]

the trigger finger on the device’s extension ledge with

constant rearward pressure.” 83 Fed. Reg. at 66532

(internal quotation marks omitted). But the definition

of “automatically” does not mean that an automatic

device must operate without any manual input. See

Guedes II, 920 F.3d at 30 (“The term automatically

does not require that there be no human involvement

to give rise to more than one shot. Rather, the term can

be read to require only that there be limited human

involvement to bring about more than one shot.”

(internal quotation marks omitted)); Guedes I, 356

F. Supp. 3d at 131, 133. As ATF explained, without a

bump stock, the shooter would have to “manually

capture, harness, or otherwise utilize th[e] [recoil]

energy to fire additional rounds” and “bump fire” a gun.

83 Fed. Reg. at 66532. In other words, the bump stock

makes it easier to bump fire because it controls the

distance the firearm recoils and ensures that the

firearm moves linearly—two tasks the shooter would

ordinarily have to perform manually. In this way, a

bump stock creates a “self-acting mechanism” that

permits “the discharge of multiple rounds” with “a

single function of the trigger . . . without manual

App. 51

reloading.” United States v. Olofson, 563 F.3d 652, 658

(7th Cir. 2009) (defining the term “automatically” in

the NFA’s definition of “machinegun”). In conclusion,

ATF reasonably interpreted an ambiguous statute, and

its interpretation is entitled to deference.

2. ATF’s Authority to Promulgate the Bump

Stock Rule

For many of the same reasons, the plaintiffs’

argument that ATF lacked the authority to state that

the NFA’s definition of “machinegun” includes bump

stocks is unavailing. See Am. Memo. in Supp. of Pls.’

Cross Mot. for Summ. J. at 39. Courts “presume that

when an agency-administered statute is ambiguous

with respect to what it prescribes, Congress has

empowered the agency to resolve the ambiguity.” Util.

Air Regulatory Grp. v. EPA, 573 U.S. 302, 315 (2014).

Agencies are therefore entitled to deference when they

reasonably define ambiguous terms—including

ambiguous terms in a statutory definition—and apply

those terms to new circumstances. See Loving, 742 F.3d

at 1016. Courts defer even when agencies “make policy

choices in interpreting [a] statute,” “as long as [they]

stay[] within [Congress’] delegation [of authority].”

Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995); see

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

States, 562 U.S. 44, 55–56 (2011) (“Chevron recognized

that the power of an administrative agency to

administer a congressionally created program

necessarily requires the formulation of policy and the

making of rules to fill any gap left, implicitly or

explicitly, by Congress.” (internal quotation marks and

alterations omitted)).

App. 52

It follows that courts have regularly recognized

ATF’s authority to interpret and apply the statutes

that it administers, including the NFA’s definition of

“machinegun.” See, e.g., Akins, 312 F. App’x at 200

(deferring to ATF’s decision to classify the Akins

Accelerator as a machinegun); see also York v. Sec’y of

Treasury, 774 F.2d 417, 419–20 (10th Cir. 1985)

(upholding ATF’s decision to classify a particular

firearm as a machinegun); cf. Brady, 914 F.2d at 480

(holding that ATF has discretion to define the term

“business premises” in another firearms statute). The

same is true here—the plaintiffs have not established

that ATF lacked authority to promulgate the bump

stock rule.

3. ATF’s Procedures and Evaluation of the

Evidence

Even when an interpretation is reasonable under

Chevron, “agency action is always subject to arbitrary

and capricious review under the APA.” Confederated

Tribes of Grand Ronde Cmty., 830 F.3d at 559. An

interpretation is arbitrary and capricious if the agency

“relied on factors that Congress has not intended it to

consider, entirely failed to consider an important aspect

of the problem, offered an explanation” that “runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference

in view or the product of agency expertise.” Agape

Church v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013)

(quoting State Farm, 463 U.S. at 43). Put simply, “[t]he

agency must ‘articulate a satisfactory explanation for

its action including a rational connection between the

facts found and the choice made.’” Nat’l Lifeline Ass’n

App. 53

v. Fed. Commc’ns Comm’n, 921 F.3d 1102, 1110 (D.C.

Cir. 2019) (quoting State Farm, 463 U.S. at 43).

Often the inquiry under Chevron Step Two overlaps

with arbitrary and capricious review because “under

Chevron step two, the court asks whether an agency

interpretation is arbitrary and capricious in

substance.” Agape Church, 738 F.3d at 410 (alteration

omitted) (quoting Judulang v. Holder, 565 U.S. 42, 52

n.7 (2011)). At bottom, a reviewing court must decide

whether an agency action is “within the scope of [the

agency’s] lawful authority” and supported by “reasoned

decisionmaking.” Tripoli Rocketry Ass’n v. ATF, 437

F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks

omitted); see also id. (“Not only must an agency’s

decreed result be within the scope of its lawful

authority, but the process by which it reaches that

result must be logical and rational.” (internal quotation

marks omitted)).

First, the plaintiffs take issue with how ATF

distinguished between bump stocks and other devices

or techniques. The plaintiffs note, for example, that

“[o]ther simple physical aids, like a belt-loop, a rubber

band, any fixed stock itself, or a padded shooting

jacket, likewise facilitate bump firing by constraining

movement of the firearm, maintaining linearity during

recoil, controlling the distance of recoil, and myriad

other things a shooter otherwise would have do

through greater manual effort.” Am. Memo. in Supp. of

Pls.’ Cross Mot. for Summ. J. at 23. But ATF properly

considered (and ultimately rejected) this argument

raised in the comment period with a response in the

rule itself. See 83 Fed. Reg. at 66,532–34; see also

App. 54

Guedes II, 920 F.3d at 32. The rule explained that

these other physical aids are distinct from bump stocks

because they involve no “self-acting or self-regulating

mechanism,” 83 Fed. Reg. at 66,532–34, and are not

“designed to be affixed” to a semiautomatic weapon. Id.

at 66516. “Bump firing without the aid of a bumpstock-type device is therefore ‘more difficult’ because it

relies solely on the shooter ‘to control the distance that

the firearm recoils and the movement along the plane

on which the firearm recoils.’” Guedes II, 920 F. 3d at

32 (citing 83 Fed. Reg. at 66,533). So too, ATF

adequately considered and responded to the argument

that binary trigger guns are arbitrarily excluded from

the rule’s purview. A binary trigger gun shoots two

rounds—one after the initial pull of the trigger and one

when the trigger is released. See 83 Fed. Reg. at

66,534. The Rule explains that these firearms are not

machineguns under ATF’s definition because the

second round is “the result of a separate function of the

trigger.” Id.; see Guedes II, 920 F.3d at 33 (“the Rule

reasonably distinguishes binary-trigger guns on the

ground that they require a second act of volition with

the trigger finger”) (emphasis omitted); Guedes I, 356

F. Supp. 3d at 136 (“ATF adequately and reasonably

responded to comments arguing that the ‘proposed

regulatory text encompasses . . . binary triggers’”).

Second, the plaintiffs argue that ATF impermissibly

relied on political pressure, namely from the President,

to promulgate the bump stock rule. Am. Memo. in

Supp. of Pls.’ Cross Mot. for Summ. J. at 37. There is

no doubt that one impetus for the rule was the political

outcry following the Las Vegas mass shooting. See

Guedes II, 920 F.3d at 34. “But that is hardly a reason

App. 55

to conclude that the Rule is arbitrary.” Id. “Presidential

administrations are elected to make policy. And as long

as the agency remains within the bounds established

by Congress, it is entitled to assess administrative

records and evaluate priorities in light of the

philosophy of the administration.” Id. (internal

quotation marks omitted). In any case, “the agency has

articulated a satisfactory explanation for the BumpStock Rule. And the administrative record reflects that

the agency kept an open mind throughout the noticeand-comment process and final formulation of the

Rule.” Id.

Finally, for the reasons discussed in the Court’s

previous Memorandum Opinion, ATF was not required

to hold a formal public hearing (in addition to its

notice-and-comment procedures). See Guedes I, 356

F. Supp. 3d at 136–137. And ATF’s decision not to

extend the comment period an extra five days after

some users reported initial difficulties in submitting

comments (but were eventually successful) was

harmless error, at most. See id. (citing United States v.

Fla. E. Coast Ry. Co., 410 U.S. 224, 239 (1973)); see also

PDK Labs. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)

(“If [an] agency’s mistake did not affect the outcome, if

it did not prejudice the petitioner, it would be senseless

to vacate and remand for reconsideration.”).

4. ATF’s Change in Position

The agency’s change in position on the question of

whether a bump stock is a machinegun does not render

its position arbitrary and capricious. See Guedes I, at

133–34. When an agency changes its position, it must

“display awareness” of the change, but it is not

App. 56

required to meet a “heightened standard for

reasonableness.” Mary V. Harris Found. v. FCC, 776

F.3d 21, 24 (D.C. Cir. 2015) (internal quotation marks

omitted). “A reasoned explanation is needed for

disregarding facts and circumstances that underlay or

were engendered by the prior policy.” Nat’l Lifeline

Ass’n, 921 F.3d at 1111 (internal quotation marks and

alteration omitted). But “[s]o long as any change is

reasonably explained, it is not arbitrary and capricious

for an agency to change its mind in light of experience,

or in the face of new or additional evidence, or further

analysis or other factors indicating that [an] earlier

decision should be altered or abandoned.” New

England Power Generators Ass’n v. FERC, 879 F.3d

1192, 1201 (D.C. Cir. 2018). Put differently, the agency

need only “show that the new policy is permissible

under the statute, that there are good reasons for it,

and that the agency believes it to be better” than the

previous policy. Mary V. Harris Found., 776 F.3d at

24–25 (emphasis and internal quotation marks

omitted).

It is well established that an agency may change its

prior policy if “the new policy [is] permissible under

the statute, and the agency . . . acknowledge[s] it is

changing its policy and show[s] that there are good

reasons for the new policy and that the agency believes

it to be better, which the conscious change of course

adequately indicates.” Nat’l Lifeline Ass’n, 921 F.3d at

1111 (emphasis and internal quotation marks omitted);

see also Mary V. Harris Found., 776 F.3d at 24 (“What

the [agency] did in the past is of no moment . . . if its

current approach reflects a permissible interpretation

of the statute.”).

App. 57

Here, ATF acknowledged that it was

“reconsider[ing] and rectify[ing]” its previous

classification decisions based on its legal analysis of the

statutory terms “automatically” and “single function of

the trigger.” 83 Fed. Reg. at 66516 (quoting Akins, 312

F. App’x at 200). It discussed the history of its

regulation of Akins Accelerators and the Eleventh

Circuit’s decision in Akins. Id. at 66517. It also

explained that it had previously determined that

“semiautomatic firearms modified with [standard]

bump-stock-type devices did not fire ‘automatically,’

and thus were not ‘machineguns.’” Id. at 66516. The

mass shooting in Las Vegas then prompted ATF to

reconsider its prior interpretations, id. at 66528–29,

none of which provided “extensive legal analysis of the

statutory terms ‘automatically’ or ‘single function of the

trigger,’” id. at 66516. ATF reviewed dictionary

definitions of “automatically,” relevant judicial

decisions—including Staples, Olofson, and Akins—and

the NFA’s legislative history to determine whether

standard bump stocks constitute machineguns. Id. at

66518–19. It then concluded that its previous

interpretations “did not reflect the best interpretation

of ‘machinegun,’” id. at 66514, and that the rule’s

interpretations of “automatically” and “single function

of the trigger” better “accord with the plain meaning of

those terms,” id. at 66527. Thus, ATF satisfied its

obligation to “reasonably explain[]” its change of

position. New England Power Generators Ass’n, 879

F.3d at 1201.

App. 58

B. The Takings Claim

The plaintiffs assert that the bump stock rule

violates the Takings Clause because it fails to provide

compensation to bump stock owners who must destroy

or abandon their weapons. They seek injunctive relief

or, in the alternative, compensatory damages. Am.

Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at

41–42.

The Takings Clause of the Fifth Amendment

provides that private property shall not “be taken for

public use, without just compensation.” U.S. Const.

amend. V. It “is designed not to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.” First English

Evangelical Lutheran Church of Glendale v. Los

Angeles County, 482 U.S. 304, 315 (1987). “[I]n general,

‘equitable relief is not available to enjoin an alleged

taking of private property for a public use, duly

authorized by law, when a suit for compensation can be

brought against the sovereign subsequent to that

taking.’” Bldg. Owners & Managers Ass’n Int’l v. FCC,

254 F.3d 89, 99 (D.C. Cir. 2001) (alteration omitted)

(quoting United States v. Riverside Bayview Homes,

474 U.S. 121, 127–28 (1985)). Indeed, “the Fifth

Amendment does not require that just compensation be

paid in advance of or even contemporaneously with the

taking.” Preseault v. ICC, 494 U.S. 1, 11 (1990). It

requires only “the existence of a reasonable, certain

and adequate provision for obtaining compensation at

the time of the taking.” Id. (internal quotation marks

omitted). Because the plaintiffs have made no showing

App. 59

that a suit for compensation is inadequate to satisfy

the demands of the Fifth Amendment—or that any

other doctrinal exception applies, injunctive relief is

unavailable.

The plaintiffs also are not entitled to compensatory

damages. In particular, they have not shown that

bump stocks “were taken for a public use” rather than

“seized or retained pursuant to a valid exercise of the

government’s police power.” Modern Sportsman, LLC

v. United States, 145 Fed. Cl. 575, 581 (2019). It is well

settled that a “prohibition simply upon the use of

property for purposes that are declared, by valid

legislation, to be injurious to the health, morals, or

safety of the community, cannot, in any just sense, be

deemed a taking or an appropriation of property for the

public benefit.” Mugler v. Kansas, 123 U.S. 623, 668–69

(1887). After all, “[t]he exercise of the police power by

the destruction of property which is itself a public

nuisance . . . is very different from taking property for

public use, or from depriving a person of his property

without due process of law.” Id. at 669.

It is for this reason that “[t]he government may not

be required to compensate an owner for property which

it has already lawfully acquired under the exercise of

governmental authority other than the power of

eminent domain.” Bennis v. Michigan, 516 U.S. 442,

452 (1996) (emphasis added). And as discussed above,

the bump stock rule was promulgated according to

ATF’s valid authority under the relevant statutes and

in light of the ambiguous statutory text. See supra at

13. So too, the bump stock rule exercises the federal

government’s limited police power as it relates to public

App. 60

safety. See Acadia Tech., Inc. v. United States, 65 Fed.

Cl. 425, 429 (2005) (“[I]f [property] is taken to prevent

public harm, the government action may be an exercise

of police power.”), aff’d, 458 F.3d 1327, 1332 (Fed. Cir.

2006); Modern Sportsman, 145 Fed. Cl. at 582 (noting

that “where the purpose of a regulation which causes

interference with property rights is to prevent injury to

the public welfare as opposed to merely bestowing upon

the public a nonessential benefit, compensation under

the fifth amendment is not required”). “The ATF

regulation at issue here was promulgated pursuant to

statutory authority and consistent with our nation’s

‘historical tradition of prohibiting [] dangerous and

unusual weapons.’” McCutchen v. United States, 145

Fed. Cl. 42, 52 (2019) (quoting District of Columbia v.

Heller, 554 U.S. 570, 627 (2008) (internal quotation

marks omitted)). Thus, this case evinces the

“paradigmatic example of the exercise of the

government’s police power, which defeats any

entitlement to compensation under the Takings

Clause.” Id. at 52.

Based on these well-settled precedents, every Court

to have considered a takings challenge in response to

bump stock rules has rejected the claim. See, e.g.,

Maryland Shall Issue, Inc. v. Hogan, 963 F.3d 356 (4th

Cir. 2020); Modern Sportsman, 145 Fed. Cl. 575 (2019);

McCutchen, 145 Fed. Cl. 42 (2019); see also Akins v.

United States, 82 Fed. Cl. 619, 622 (2008) (holding that

ATF’s revision of its interpretation to include bump

stocks did not give rise to a compensable taking

because “[p]roperty seized and retained pursuant to the

police power is not taken for a public use in the context

App. 61

of the Takings Clause” (internal quotation marks

omitted)). This Court will do the same.

C. The Remaining Claims

Finally, the plaintiffs raise two additional claims:

first, that the bump stock rule violates the Ex Post

Facto Clause; and second, that the underlying statutes

are void for vagueness.8

The plaintiffs also reference briefly, in one short paragraph, an

argument about the separation of powers and the non-delegation

doctrine as those doctrines relate to Chevron. See Am. Memo. in

Supp. of Pls.’ Cross Mot. for Summ. J at 39 (noting that these

counts “exist . . . to ensure that an actual ruling on the

constitutional questions is made and thus to facilitate further

review”). Although the plaintiffs do not expound on the substance

of their argument, the Court interprets this reference to relate to

the plaintiffs’ earlier argument about the relationship between the

rule of lenity and Chevron deference, and the argument that

Chevron violates the Constitution. See id. at 34 (arguing that

Chevron “deference, particularly in the context of a statute

defining crimes, violates the separation of powers [and] the antidelegation doctrine”). As discussed above, this Court is bound by

the precedent of Chevron and its progeny. See supra at 10. The

plaintiffs also made the additional argument in their complaint

“that the Attorney General allow for an amnesty so as to register

these devices as machineguns under the National Firearms Act,”

Sec. Am. Compl. ¶ 43 (Codrea). The plaintiffs appear to have

abandoned this argument on summary judgment, however, as they

submit no discussion on amnesty and merely reference it once in

a sub-heading list with other topics. See Am. Memo. in Supp. of

Pls.’ Cross Mot. for Summ. J. at 39 (“Guedes Count I – Lack of

Statutory Authority to Alter Definition Established by Congress

(APA and Article I); Codrea Counts I, II, III, V & VII – Ultra Vires,

APA Violation and Amnesty.”).

App. 62

1. The Ex Post Facto Clause

The plaintiffs assert that the bump stock rule is

unlawfully retroactive. See U.S. Const., art. I § 9, cl. 3

(“No . . . ex post facto Law shall be passed.”). The D.C.

Circuit recognized that the plaintiffs forfeited this

argument by failing to raise it before this Court in the

initial proceedings. Guedes II, 920 F.3d at 35. Even if

the argument were properly raised, though, the text of

the rule itself forecloses this argument. The rule

establishes that anyone “in possession of a bumpstock

type device is not acting unlawfully unless they fail to

relinquish or destroy their device after the effective

date of this regulation.” 83 Fed. Reg. at 66,523

(emphasis added). And the effective date was March

26, 2019, a full ninety days after the rule was

promulgated. 83 Fed. Reg. at 66,514. To alleviate any

lingering doubt about the rule’s application, ATF made

clear that “criminal liability” attached “only for

possessing bump-stock-type devices after the effective

date of regulation, not for possession before that date.”

Id. at 66,525 (emphasis added); Guedes II, 920 F.3d at

8–9. In conclusion, the rule poses no retroactivity issue.

2. Void for Vagueness

“The Due Process Clause ‘requires the invalidation

of laws [or regulations] that are impermissibly vague.’”

United States Telecom Ass’n v. FCC, 825 F.3d 674, 734

(D.C. Cir. 2016) (quoting FCC v. Fox Television

Stations, Inc., 567 U.S. 239, 253 (2012)). The plaintiffs

do not brief this argument in detail, but instead

conclude that “[i]f the statute is vague enough for

Chevron, then it is vague enough to require lenity or

simply to be void.” Am. Memo. in Supp. of Pls.’ Cross

App. 63

Mot. for Summ. J. at 41. The D.C. Circuit addressed

this argument, holding that “Codrea’s challenge is

misconceived,” as the notice-and-comment procedures

provided fair notice of what conduct was prohibited.

Guedes II, 920 F.3d at 28.

And with good reason. There is much daylight

between the statutory ambiguity required to trigger

Chevron deference and the vagueness required to

invalidate a statute or regulation under the Due

Process Clause. See United States v. National Dairy

Products Corp., 372 U.S. 29, 32 (1963) (“The strong

presumptive validity that attaches to an Act of

Congress has led this Court to hold many times that

statutes are not automatically invalidated as vague

simply because difficulty is found in determining

whether certain marginal offenses fall within their

language.”). Were this not the case, every regulation

entitled to Chevron deference would be summarily

voided for vagueness. Rather, the void for vagueness

doctrine applies where a “conviction or punishment

fails to comply with due process [because] the statute

or regulation under which it is obtained fails to provide

a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” Fox

Television Stations, 567 U.S. at 253 (emphasis added)

(internal quotation marks omitted). Here, by contrast,

ATF’s formal notice-and-comment procedures, as well

the final rule itself, provide ample notice of what

conduct is prohibited. See Guedes II, 920 F.3d at 28

(holding that “the promulgation of the Bump-Stock

Rule through notice-and-comment procedures afforded

App. 64

fair notice of the prohibited conduct” (internal

quotation marks omitted)).

CONCLUSION

For the reasons stated above, and explained further

in the Court’s earlier Memorandum Opinion in this

case, the defendants’ Motion for Summary Judgment is

granted. An order consistent with this decision

accompanies this memorandum opinion

/s/ Dabney L. Friedrich

DABNEY L. FRIEDRICH

United States District Judge

February 19, 2021

App. 65

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[Filed February 19, 2021]

No. 18-cv-2988 (DLF)

_________________________________________

DAMIEN GUEDES, et al.,

)

Plaintiffs,

)

BUREAU OF ALCOHOL, TOBACCO,

)

FIREARMS, AND EXPLOSIVES, et al.,

)

Defendants.

)

_________________________________________ )

No. 18-cv-3086 (DLF)

_________________________________________

DAVID CODREA, et al.,

)

Plaintiffs,

)

MONTY WILKINSON, Attorney

)

General, et al.,

)

Defendants.

)

_________________________________________ )

App. 66

ORDER

For the reasons stated in the accompanying

Memorandum Opinion, it is

ORDERED that the defendants’ Motions for

Summary Judgment, Dkt. 38 (Codrea), Dkt. 61

(Guedes), are GRANTED. It is further

ORDERED that the plaintiffs’ Cross Motions for

Summary Judgment, Dkt. 44 (Codrea), Dkt. 62

(Guedes), are DENIED.

The Clerk of Court is directed to close this case.

/s/ Dabney L. Friedrich

DABNEY L. FRIEDRICH

United States District Judge

February 19, 2021

App. 67

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5045

[Filed May 2, 2023]

_________________________________________

DAMIEN GUEDES, ET AL.,

)

APPELLANTS

)

FIREARMS POLICY COALITION, INC.,

)

APPELLEE

)

BUREAU OF ALCOHOL, TOBACCO,

)

FIREARMS AND EXPLOSIVES, ET AL.,

)

APPELLEES

)

________________________________________ )

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-02988)

__________

On Petition for Rehearing En Banc

___________

Before: SRINIVASAN, Chief Judge; HENDERSON***,

MILLETT**, PILLARD, WILKINS**, KATSAS*, RAO*,

WALKER****, CHILDS, and PAN*, Circuit Judges

App. 68

ORDER

Appellants’ petition for rehearing en banc and the

response thereto were circulated to the full court, and

a vote was requested. Thereafter, a majority of the

judges eligible to participate did not vote in favor of the

petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

* Circuit Judges Katsas, Rao, and Pan did not

participate in this matter.

** A statement by Circuit Judge Wilkins, joined by

Circuit Judge Millett, concurring in the denial of

rehearing en banc, is attached.

*** Circuit Judge Henderson would grant the petition

for rehearing en banc. A statement by Circuit Judge

Henderson, dissenting from the denial of rehearing en

banc, is attached.

**** Circuit Judge Walker would grant the petition for

rehearing en banc. A statement by Circuit Judge

Walker, dissenting from the denial of rehearing en

banc, is attached.

App. 69

WILKINS, Circuit Judge, with whom MILLETT,

Circuit Judge, joins, concurring in the denial of the

petition for rehearing en banc: Petitioners raised two

arguments as reasons of “exceptional importance” for

granting the petition, see Fed. R. App. P. 35(a)(2),

namely (1) whether the interpretation of the statutory

terms defining a “machine gun” to include bump stocks

by the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF” or the “Bureau”) is the best reading

of the statute, and (2) whether the purported ambiguity

in the statutory definition compels an interpretation in

their favor pursuant to the rule of lenity. The panel

opinion thoroughly addressed both arguments, see

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 45 F.4th 306 (D.C. Cir. 2022), and neither

merit further review by our court.

I write only to clarify a couple of matters and to

respond to some of the points made in the rehearing

petition and by my dissenting colleagues.

First, I must address some misconceptions about

the legislative and regulatory history.

“Representing the first major federal attempt to

regulate firearms, the [National Firearms Act of 1934]

concentrated on particularly dangerous weapons and

devices such as machine guns, sawedoff shotguns and

silencers.” Lomont v. O’Neill, 285 F.3d 9, 11 (D.C. Cir.

2002). See Pub. L. No. 73-474, 48 Stat. 1236 (1934). As

originally conceived, the Act and its implementing

regulations did not ban the possession of machine guns

outright; instead, they required a person seeking to

App. 70

obtain a machine gun to file an application with the

Treasury Department, pay a hefty transfer tax, and

submit a photograph, fingerprints, and a certificate

from a local law enforcement official attesting their

belief that the person intended to use the firearm for

lawful purposes. Lomont, 285 F.3d at 11–12. If the

Treasury Department granted the application, the

person’s name and address, along with the serial

number of the machine gun, were placed in a registry.

Id. The Act made the manufacture, transfer, or

possession of a machine gun without Treasury approval

and payment of applicable taxes unlawful. See 26

U.S.C. § 5861. In 1986, Congress prohibited the

transfer or possession of machine guns, except by

authorized military or governmental officials, unless

the person lawfully possessed the machine gun prior to

May 19, 1986. See Act of May 19, 1986, Pub. L. No. 99308, § 102, 100 Stat. 449 (1986); see also 18 U.S.C.

§ 922(o).

As drafted in 1934, the National Firearms Act

defined a “machine gun” as follows:

The term “machine gun” means any weapon

which shoots, or is designed to shoot,

automatically or semiautomatically, more than

one shot, without manual reloading, by a single

function of the trigger.1

As my dissenting colleagues point out, see Walker Op. 2 n.1;

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920

F.3d 1, 44–45 (D.C. Cir. 2019) (Henderson, J., concurring in part

and dissenting in part), Congress amended the definition of

machine gun in 1968. The amendment deleted the words “or

semiautomatically” from the above-quoted sentence. Pub. L.

App. 71

Pub. L. No. 73-474, § 1(b), 48 Stat. 1236, 1236 (1934).

Petitioners and my dissenting colleague complain that

the panel’s conclusion that “a ‘single function of the

trigger’ is best understood as a ‘single pull of the

trigger’ and ‘analogous motions’” is somehow novel. Pet.

at 11 (quoting Guedes, 45 F.4th at 315, 317); Walker

Op. 6–7. Not so.

Both the Senate and House reports on the National

Firearms Act explained that the bill “contains the

usual definition of machine gun as a weapon designed

to shoot more than one shot without reloading and by

a single pull of the trigger.” S. Rep. No. 73-1444, at 2

(1934) (quoting H.R. Rep. No. 73-1780 (1934))

(emphasis added). Immediately following the Act’s

passage, the Treasury Department published a letter

No. 90-618, 82 Stat. 1213, 1231 (1968). The 1968 Act also added a

second sentence specifying that “the frame or receiver” of the

weapon, or “any combination of parts designed and intended” to

convert a weapon into a machine gun or to assemble a machine

gun, also qualified as a machine gun. Id. The legislative history

clearly indicates that Congress did not consider the deletion of “or

semiautomatically” to be a substantive change, because Congress

stated “[t]his subsection defines the term ‘machinegun’ and the

first sentence is existing law.” S. Rep. No. 90-1501, at 45 (1968)

(section-by-section analysis of the bill); see also Federal Firearms

Legislation, Hearings before the Senate Judiciary Committee,

Juvenile Delinquency Subcommittee, 90th Cong. 135 (1968)

(quoting from section-by-section analysis submitted to Congress by

Hon. Sheldon S. Cohen, Commissioner of Internal Revenue) (“This

subsection defines the term ‘machine gun’ and the first sentence is

existing law.”). Accordingly, attempts to rely upon the 1968

deletion of “or semiautomatically” to narrow the reach of the text,

see Pet. at 12; Walker Op. 8–9; Guedes, 920 F.3d at 44–45

(Henderson, J., concurring in part and dissenting in part), are

without merit.

App. 72

ruling defining a machine gun as “a semiautomatic

pistol or an autoloading pistol when converted into a

weapon which shoots automatically, that is, one

capable of discharging the entire capacity of its

magazine with one pull of the trigger. . . .” Rev.

Rul. XIII-38-7035, S.T. 772, 13-2 C.B. 433–34 (Jul.-Dec.

1934) (emphasis added).2 Thus, “single function of the

trigger” was construed as equivalent to “single pull” of

the trigger at the outset.

Significantly, the 1934 Treasury letter ruling

defines machine gun consistent with how a bump stock

operates, because it is a device that is “capable of

discharging the entire capacity of its magazine with

one pull of the trigger.” 13-2 C.B. at 434. As the District

Court found, “[o]nce the shooter pulls the trigger, a

bump stock harnesses and directs the firearm’s recoil

energy, thereby forcing the firearm to shift back and

forth, each time ‘bumping’ the shooters stationary

trigger finger. The shooter is thus able to reengage the

trigger without additional pulls of the trigger.” Guedes

v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

520 F. Supp. 3d 51, 58 (D.D.C. 2021) (emphasis added).

Petitioners did not properly challenge the predicate for

these factual findings when proposed by the

government at the summary judgment stage, and they

did not challenge the District Court’s factual findings

as clearly erroneous on appeal. See Guedes, 45 F.4th at

317–18. Petitioners’ attempt to wriggle out of these

This 1934 letter ruling was not cited in the briefing or in the

panel opinion. I found it when performing subsequent research

after the rehearing petition was filed.

App. 73

findings at the rehearing stage, see Pet. at 10 n.2,

comes way too late and is at least doubly forfeited.

I refer to this 1934 letter ruling not because its

interpretation is binding upon or must be deferred to

by this Court. Instead, it bears mention because it

refutes Petitioners’ contention that the 2018 bump

stock rule “contradicts eight decades of interpretations

by the Treasury Department and the ATF.” Pet. at 15;

see also Guedes, 920 F.3d at 46–47 (Henderson, J.,

concurring in part and dissenting in part). To the

extent the relative gravitas of the various letter rulings

is relevant to the debate, I note that the 1934 letter

ruling was public, issued by the Acting Commissioner

of Internal Revenue, and approved by the Secretary of

the Treasury, see 13-2 C.B. at 440, whereas the bump

stock letter rulings issued between 2008 and 2017 cited

by Petitioners and the dissent were all private, rather

than public, and issued by subordinate Bureau officials,

see Administrative Record (“A.R.”) 424–84. See 26

C.F.R. § 601.601(d)(2)(v)(d) (“Revenue Rulings

published in the Bulletin do not have the force and

effect of [regulations], but are published to provide

precedents to be used in the disposition of other cases,

and may be cited and relied upon for that purpose. No

unpublished ruling or decision will be relied on, used,

or cited, by any officer or employee of the Service as a

precedent in the disposition of other cases.”). Further,

the suggestion by Petitioners and the dissent that

purchasers of bump stocks were entitled to rely on the

2008-2017 private letter rulings is wholly without

merit. See id.; see also McCutchen v. United States, 14

F.4th 1355, 1368–70 (Fed. Cir. 2021), cert. denied, 143

S. Ct. 422 (2022) (holding that bump stock private

App. 74

letter rulings did not establish a property right because

the Bureau’s handbook, “which is public, states that a

[firearm] classification provided by letter is ‘subject to

change if later determined to be erroneous,’” and also

because the letter rulings were informal, unpublished,

and not issued through rulemaking); Hanover Bank v.

Comm’r, 369 U.S. 672, 686 (1962) (“[P]etitioners are

not entitled to rely upon unpublished private rulings

which were not issued specifically to them[.]”).

Relatedly, the dissent’s characterization of the 2018

Rule as Executive overreach ignores the constitutional

and statutory context and exaggerates what happened

here. Walker Op. 1, 10–16. As we have previously held,

Congress explicitly gave the Secretary of Treasury

“interpretative rulemaking power” in the National

Firearms Act. See Lomont, 285 F.3d at 16 (citing 26

U.S.C. § 7805(a)). Thus, the statute, and the

Executive’s power to “take Care that the Laws be

faithfully executed,” U.S. CONST. art. II, § 3, made it

perfectly appropriate for the Bureau to issue a rule

explaining what it believed the statute meant and how

it would enforce the law going forward. The 2018 Rule

was not an extraconstitutional “power grab[],” Walker

Op. 1, but rather a fitting response to many reasonable

questions about the Executive’s view of the scope of the

statutory machine gun prohibition and how it would be

enforced following a national tragedy. And while the

Executive can pronounce its statutory interpretation

consistent with the constitutional order, the judicial

branch has the power and responsibility to render the

authoritative interpretation of the statute. There is no

constitutional crisis.

App. 75

II.

As the panel explained, “a ‘single function’ of the

trigger is best understood as a ‘single pull of the

trigger’ and ‘analogous motions,’ while automatically is

best understood to mean a ‘result of a self-acting or

self-regulating mechanism.’” Guedes, 45 F.4th at 317.

I will let the panel opinion speak for itself. I add only

that the 1934 letter ruling, issued by the Commissioner

and adopted by the Secretary, is consistent with the

panel’s interpretation, and thus corroborates that the

panel interpretation is the best reading of the statute.

As the 1934 Cumulative Bulletin indicates, none

other than Robert H. Jackson—as Assistant General

Counsel of the Bureau of Internal Revenue—authored

over two dozen regulations, letter rulings, and opinion

letters that were published contemporaneously with

the 1934 machine gun letter ruling. 13-2 C.B., passim.

We do not know whether then-Mr. Jackson drafted or

approved the 1934 machine gun letter ruling, though it

is probable. But we do know that, a few years later,

then-Justice Jackson warned that “if the Court does

not temper its doctrinaire logic with a little practical

wisdom, it will convert the constitutional Bill of Rights

into a suicide pact.” Terminiello v. City of Chicago, 337

U.S. 1, 37 (1949) (Jackson, J., dissenting). The 58

people killed and approximately 500 wounded in Las

Vegas by a shooter using bump stock devices behoove

us to heed Justice Jackson’s prescient admonition.

Where we can employ tools of statutory interpretation

to derive a reasonable interpretation of the statute, we

should not find a “grievous ambiguity” to rule in

Petitioners’ favor pursuant to the rule of lenity.

App. 76

Maracich v. Spears, 570 U.S. 48, 76 (2013). One of the

manufacturers of bump stocks bragged on its website,

“Did you know that you can do full-auto firing and it is

absolutely legal?” A.R. 840. We do not have to “guess as

to what Congress intended,” Maracich, 570 U.S. at 76,

to determine whether text prohibiting “any weapon

which shoots . . . automatically more than one shot,

without manual reloading, by a single function of the

trigger,” 26 U.S.C. § 5845(b), covers a device that

concededly replicates “full-auto firing,” A.R. 840.

“There is no war between the Constitution and common

sense.” Mapp v. Ohio, 367 U.S. 643, 657 (1961).

The petition for rehearing en banc is properly

denied.

KAREN LECRAFT HENDERSON, Circuit Judge,

dissenting from the denial of rehearing en banc: For

the reasons explained at the preliminary injunction

stage in my separate panel opinion, which is hereby

incorporated by reference thereto, Guedes v. ATF, 920

F.3d 1, 35–49 (D.C. Cir. 2019) (Henderson, J.,

concurring in part and dissenting in part), I dissent

from the denial of rehearing en banc. And I echo Judge

Walker’s view that the case presents “question[s] of

exceptional importance.” D.C. Cir. R. 35(a)(2); see infra

at 11–16 (Walker, J., dissenting from denial of

rehearing en banc).

WALKER, Circuit Judge, dissenting from the denial

of rehearing en banc: Congress recently considered at

least five bills restricting or banning bump stocks.

None passed. Yet bump stocks are illegal anyway.

App. 77

That’s because the Bureau of Alcohol Tobacco,

Firearms, and Explosives stepped into Congress’s shoes

and criminalized owning a bump stock.

Like other power grabs by impatient agencies, the

Bureau decided Congress was taking too long. So it

relied on a misguided reading of an old statute to solve

the problem itself. According to the agency, that old

statute had banned bump stocks all along.

The Bureau’s overreach is troubling because it turns

law-abiding Americans into criminals. Before the

Bureau issued its rule, it spent a decade telling the

public that bump stocks were legal. After the rule,

bump-stock owners who relied on that advice are felons

if they do not discard their devices.

Congress makes the laws — especially the criminal

laws. The executive branch does not. To reestablish

that principle, I would grant rehearing en banc.

Relying on a strained reading of an old statute, the

Bureau banned bump stocks. But no statute gives it

that authority.

The Firearms Owners’ Protection Act of 1986

“effectively banned private ownership of machine

guns.” Guedes v. ATF, 920 F.3d 1, 35 (D.C. Cir. 2019)

(Guedes I) (Henderson, J., concurring in part and

dissenting in part) (citing Pub. L. No. 99-308, 100 Stat.

449). The Act made it a crime to “transfer or possess a

machinegun” that was not “lawfully possessed” before

App. 78

1986. 18 U.S.C. § 922(o)(1), (2)(B). To define

“machinegun,” the Act drew on a long-standing

definition in the National Firearms Act of 1934, as

amended in 1968: a “machinegun” is a “weapon which

shoots . . . automatically more than one shot . . . by a

single function of the trigger.” 26 U.S.C. § 5845(b).1

For decades, the government interpreted that

definition to exclude guns that fire only a single bullet

each time the trigger moves. In 1955, for instance, the

government said that a crank-operated gatling gun was

not a machinegun because it was “not designed to shoot

automatically . . . more than one shot with a single

function of the trigger.” Rev. Rul. 55-528, 1955 WL

9410. The crank just let the user fire the gun more

quickly.

Fast forward to 2008. The Bureau relied on similar

reasoning to find that a bump stock did not turn a

semiautomatic gun into a machinegun. A bump stock

replaces the standard stock of a semiautomatic rifle.

When a shooter fires the rifle, it naturally recoils

backwards into the shooter’s shoulder. The bump stock

captures that recoil energy, returning the rifle forward.

When that happens, the trigger bumps into the

shooter’s stationary trigger finger, firing the weapon.

The rifle will keep firing as long as the shooter keeps

forward pressure on the bump stock. In “ten letter

rulings between 2008 and 2017,” the Bureau said

The Act originally defined a machinegun as “any weapon which

shoots, or is designed to shoot, automatically or semiautomatically,

more than one shot.” Pub. L. No. 73-474, 48 Stat. 1236 (emphasis

added). The Gun Control Act of 1968 deleted the words “or

semiautomatically.” Pub. L. No. 90-618, 82 Stat. 1231.

App. 79

“bump-stock-type devices” did not “qualify as

machineguns” because they do not work

“automatically.” 83 Fed. Reg. 66,514, 66,517 (Dec. 26,

2018). Instead, they require “the maintenance of

pressure by the shooter” to work. Id. at 66,518.

Then in 2017, a gunman using a bump stock killed

58 people and wounded 500 others in Las Vegas. In the

wake of that tragedy, Congress considered legislation

to ban or restrict bump stocks. See, e.g., H.R. 4168,

115th Cong. (2017); S. 1916, 115th Cong. (2017);

S. 2475, 115th Cong. (2018); H.R. 4594, 116th Cong

(2019); H.R. 5427, 117th Cong. (2021). Yet for better or

worse, those bills did not become laws.

In our system of separated powers, that should have

been the end of the story. Congress alone makes the

laws. U.S. Const., Art. I. And Congress has not yet

decided to ban bump stocks. If that is bad policy,

Americans can show their disapproval at the ballot box

by voting out their representatives.

But instead of letting the democratic process play

out, the Bureau took matters into its own hands. While

legislative efforts were ongoing, the Bureau issued a

rule reinterpreting the statutory definition of

“machinegun” to include bump stocks. 83 Fed. Reg. at

66,514. In doing so the Bureau reversed the

interpretation of the statute it had stuck to for a

decade. Id. at 66,517.

The Bureau also went further than some of the

proposals Congress rejected. For instance, the proposed

Closing the Bump-Stock Loophole Act would have

required bump-stock owners to “register” their devices

App. 80

with the Bureau. H.R. 4168, 115th Cong. (2017). The

Bureau eschewed all such half measures; its

reinterpretation of the statute banned bump stocks

altogether.

After the Bureau’s interpretive about-face, Damien

Guedes and several other plaintiffs brought a challenge

under the Administrative Procedure Act. See Guedes v.

Bureau of Alcohol, Tobacco, Firearms, & Explosives,

520 F. Supp. 3d 51 (D.D.C. 2021). Guedes argued that

the Bureau lacked statutory authority to ban bump

stocks because they are not covered by the National

Firearms Act’s definition of “machinegun.” Id. at 61.

The district court rejected that argument and a panel

of this court affirmed. Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 45 F.4th 306, 317

(D.C. Cir. 2022) (Guedes II). Guedes now petitions for

rehearing en banc.

The Bureau’s rule misreads the National Firearms

Act. Under the Act, a “machinegun” must “shoot[ ] . . .

automatically more than one shot . . . by a single

function of the trigger.” 26 U.S.C. § 5845(b). A bump

stock neither lets a shooter “automatically [fire] more

than one shot” nor lets him do so by “a single function

of the trigger.” Id. So Congress’s ban on machineguns

unambiguously does not cover them.

Start with the phrase “single function of the

trigger.”

App. 81

In 1934, when the statutory definition of

“machinegun” became law, “function” meant the

“natural and proper action” of a thing. Webster’s New

International Dictionary 876 (2d ed. 1933). Something’s

“function” was “[t]he special kind of activity proper to

[it]; the mode of action by which it fulfills its purpose.”

4 Oxford English Dictionary 602 (1933); see also

Wisconsin Central Ltd. v. United States, 138 S. Ct.

2067, 2070 (2018) (courts should “interpret the words

consistent with their ordinary meaning at the time

Congress enacted the statute” (cleaned up)).

So here, we must ask whether the “natural and

proper action” of the trigger lets a rifle modified by a

bump stock fire “more than one shot.” 26 U.S.C.

§ 5845(b). It does not. When shooting with a bump

stock, only one shot fires each time the trigger moves.

See Guedes II, 45 F.4th at 320 (“a bump stock device[ ]

fires only one round with each mechanical movement

of the trigger”). “The trigger . . . must necessarily ‘pull’

backwards and release the rifle’s hammer . . . every

time that the rifle discharges . . . . The rifle cannot fire

a second round until both the trigger and hammer

reset.” Aposhian v. Barr, 958 F.3d 969, 995 (10th Cir.)

(Carson, J., dissenting). Every shot requires a new

movement of the trigger. If a gun fitted with a bump

stock fires more than one round with a single

movement of the trigger, it has malfunctioned.

The Bureau avoids that conclusion by rewriting

“single function of the trigger” as “single pull of the

trigger.” 83 Fed. Reg. at 66,514, 66,518. Because a

shooter firing with a bump stock need pull the trigger

only once to start firing, the Bureau says that a bump

App. 82

stock counts as a machinegun under the statute. Id. at

66,514. After that initial pull, the bump stock

repeatedly pushes the trigger into the shooter’s

stationary finger, firing additional shots. No additional

pulls are required.

But the Bureau provides scant evidence to support

its edit of the statute. Relying on a footnote from

Staples v. United States, 511 U.S. 600, 602 n.1 (1994),

and a snippet of testimony from a congressional

hearing, the Bureau claims that its interpretation is

“consonant with the statute and its legislative history.”

83 Fed. Reg. at 66,518 (quoting Akins v. United States,

312 F. App’x 197, 200 (11th Cir. 2009)).

That is a flimsy foundation for reading the word

“function” to mean something different. True, in

Staples, the Supreme Court described an automatic

weapon as one that “fires repeatedly with a single pull

of the trigger.” 511 U.S. at 602 n.1. But it did so in a

footnote describing background facts, not when

definitively interpreting the National Firearms Act. See

United States v. Olofson, 563 F.3d 652, 657 (7th Cir.

2009) (the Staples footnote “was providing a glossary

for terms frequently appearing in the opinion” and not

“interpreting a statute”).

That leaves the agency with a solitary sentence

from a committee hearing on the 1934 National

Firearms Act to support its interpretation. There, the

National Rifle Association’s then-president testified

that a machinegun is a weapon “capable of firing more

than one shot by a single pull of the trigger, a single

function of the trigger.” 83 Fed. Reg. at 66,518

(quotation marks omitted). But legislative history is

App. 83

notoriously unreliable. The text of the statute controls,

not a throw-away line cherry-picked from the 170-page

record of a congressional hearing. See National

Firearms Act: Hearings Before the Committee on Ways

and Means, H.R. 9066, 73rd Cong. (1934); see also Epic

Systems Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018)

(warning against “divin[ing] messages from

congressional commentary”).2

Perhaps realizing that the agency’s argument is

weak, the panel offered a different explanation for why

“function” really means “pull.” It reasoned that

“function” means an “activity; doing; [or] performance,”

and “the shooter’s pull is the single ‘activity’ or

‘performance’ of the trigger that causes the gun to

shoot automatically more than one shot.” Guedes II, 45

F.4th at 315 (quotation marks omitted). But that

focuses on the reason why the trigger moves, not, as

the statute requires, on how often the trigger moves.

That gets it backwards. The statute is indifferent about

why the trigger moves — pull, bump, or otherwise — it

To the agency’s evidence, Judge Wilkins’s eagle-eyed research

adds a 1934 tax ruling. Wilkins Op. 3. There, the Treasury said a

“semiautomatic” or “autoloading” pistol becomes a “machine gun”

when converted to “discharg[e] the entire capacity of its magazine

with one pull of the trigger.” Rev. Rul. XIII-38-7035, S.T. 772, 132 C.B. 433–34 (Jul.-Dec. 1934). True, that ruling is probative of the

original public meaning of the Act. But tax rulings can be

mistaken, even when they may have been written by Robert

Jackson. Cf. Horace, Ars Poetica (“sometimes even good Homer

nods off”). And here, for the reasons explained above, strong

textual clues counsel against equating, as the Treasury did, “single

function of the trigger” with “one pull of the trigger.”

App. 84

looks only to how many shots are fired each time the

trigger moves.

Plus, reading “function” as “pull” ignores the fact

that Congress knows how to write “single pull of the

trigger” when it wants to. Indeed, the National

Firearms Act’s definition of “rifle” uses that phrase. See

26 U.S.C. § 5845(c) (a rifle “fire[s] only a single

projectile through a rifled bore for each single pull of

the trigger”); see also 18 U.S.C. § 921(a)(5) (a shotgun

“fire[s] through a smooth bore either a number of ball

shot or a single projectile for each single pull of the

trigger”). Yet the panel’s interpretation of “function”

gives no meaning to Congress’s decision to use “single

function” in one place and “single pull” in another. Cf.

Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 170 (2012) (courts should

pay attention to meaningful variation in statutory

language).

Even if the agency is right that “function” means

“pull,” it is still not clear that the statute covers bump

stocks. The agency claims, and the panel accepts, that

a “pull” of the trigger can include other “analogous”

ways of “activat[ing] . . . a trigger” like a “push, or some

other action.” 83 Fed. Reg. at 66,515, 66,518 n.5; see

also Guedes II, 45 F.4th at 311 (the statute covers a

“single pull of the trigger and analogous motions.”).

Here, it is undisputed that a bump stock works by

bumping the trigger into the shooter’s stationary

finger, thus firing the weapon. So why does that not

count as a motion that is analogous to a “pull of the

trigger”? The agency has no answer. And if a bump is

analogous to a pull, then rifles fitted with bump stocks

App. 85

are not machineguns under the National Firearms Act.

Each bump, like each pull, fires one bullet. A single

action never causes the rifle to fire more than one shot.

A bump stock is not a “machinegun” for a second

reason. A machinegun must “shoot[ ] automatically

more than one shot.” 26 U.S.C. § 5845(b) (emphasis

added). A bump stock does not.

In 1934, “automatically” meant “having a self-acting

or self-regulating mechanism,” Webster’s New

International Dictionary 187 (2d ed. 1934), or “[s]elfacting under the conditions fixed for it, going of itself.”

1 Oxford English Dictionary 574 (1933).

A mechanism cannot be self-acting or selfregulating if it requires user input to keep working.

And a bump stock needs constant input from the

shooter if a gun is to keep firing. He must keep forward

pressure on the bump stock for it to work. If he does

not, the weapon will fire only one shot. So firing with a

bump stock requires “skill[ ] and coordination,” as

explained in comments on the Bureau’s proposed rule.

83 Fed. Reg. at 66,531–32.

Rather than grappling with that inconvenient fact,

the Bureau largely ignores it. It says that a bump stock

lets a shooter fire more than one shot automatically

because “the device harnesses the firearm’s recoil

energy in a continuous back-and-forth cycle that allows

the shooter to attain continuous firing after a single

pull of the trigger.” Id. at 66,519. That is true enough.

But it does not account for the undisputed fact that a

shooter must maintain “forward pressure on the barrel”

App. 86

for a bump stock to let him fire more than one shot.

Guedes II, 45 F.4th at 318. And tellingly, the Bureau

reached a different conclusion for years, finding that

bump stocks require “multiple inputs by the user for

each successive shot.” Letter from Richard W.

Marianos, ATF Assistant Director Public and

Governmental Affairs, to Rep. Ed Perlmutter, at 1–2

(Apr. 16, 2013), https://perma.cc/46VL-J88S.

Even worse, the agency’s reading of the statute

elides an important distinction between automatic and

semiautomatic guns. In 1934, the “difference between

an ‘automatic’ and a ‘semiautomatic’ gun depended on

whether the shooter played a manual role in the

loading and firing process.” Guedes I, 920 F.3d at 45

(Henderson, J., concurring in part and dissenting in

part). A semiautomatic gun is one “in which part, but

not all, of the operations involved in loading and firing

are performed automatically.” Id. (quoting Webster’s

New International Dictionary 187 (2d ed. 1934)). By

contrast, after the first shot is fired, an automatic gun

reloads and fires automatically, so long as the shooter

keeps his finger on the trigger. Id. A gun modified by a

bump stock works semiautomatically: the shooter plays

a manual role in the firing process because he must

keep constant pressure on the bump stock.

If Congress had wanted to call a semiautomatic

weapon a machinegun, it could have. In fact, in 1934,

it did. Originally, the National Firearms Act defined

machinegun to cover both guns that fire more than one

shot “semiautomatically” and those that do so

“automatically.” Pub. L. No. 73-474, 48 Stat. 1236. But

in 1968, Congress deleted the word

App. 87

“semiautomatically” from the statutory definition. Pub.

L. No. 90-618, 82 Stat. 1213. The Bureau’s rule

essentially writes it back in.

To make matters worse, the Bureau’s rule has no

grandfather clause. That means that hundreds of

thousands of law-abiding Americans who legally

bought bump stocks before 2018 now possess illegal

property. What are they to do? According to the

Bureau, they should “destroy or abandon their devices.”

83 Fed. Reg. at 66,530.

That suggestion is startling. For one thing, many

bump-stock owners purchased their devices in reliance

on the Bureau’s assurance that they were not

prohibited. See 83 Fed. Reg. at 66,517. For another,

when Congress passed its ban on machineguns in 1986,

it grandfathered in “machinegun[s] that w[ere] lawfully

possessed before” the ban became effective. 18 U.S.C.

§ 922(o)(2)(B). It is hard to imagine that a Congress

that sought to protect lawful gun owners when it

passed the ban would have sanctioned the Bureau’s

subsequent bait and switch.

***

To sum up, a gun fitted with a bump stock is not a

machinegun because it does not automatically fire

more than one shot each time the trigger moves.

In reaching that conclusion, I join other judges who

have persuasively explained why the Act does not ban

bump stocks. See Cargill v. Garland, 57 F.4th 447 (5th

Cir. 2023) (en banc); Guedes I, 920 F.3d at 35

(Henderson, J., concurring in part and dissenting in

part); Gun Owners of America v. Garland, 19 F.4th

App. 88

890, 910 (6th Cir. 2021) (en banc) (Murphy, J.,

dissenting); Aposhian v. Wilkinson, 989 F.3d 890, 896

(10th Cir. 2021) (Tymkovich, C.J., dissenting from

vacatur of en banc order).

If this were an ordinary case about statutory

interpretation, I would not call for rehearing en banc,

even if I disagreed with the panel’s analysis. En banc

review is reserved for “question[s] of exceptional

importance.” D.C. Cir. R. 35(a)(2).

But the bump stock ban is not ordinary. It’s the

source of a circuit split. It’s the product of an agency’s

impatience with Congress. And it’s an affront to

800 years of Anglo-American legal history restricting

the executive’s power to create new crimes.

In short, even in an era of aggressive executive

rulemaking, the bump stock ban is a bridge too far.

En banc rehearing is often appropriate when a

panel opinion conflicts with other circuit-court

decisions. Sweet Home Chapter of Communities for a

Great Oregon v. Babbitt, 30 F.3d 190, 195 (D.C. Cir.

1994) (Silberman, J., dissenting from denial of

rehearing en banc) (“[T]he issue would seem of

sufficient importance, particularly in light of the circuit

split.”); cf. D.C. Cir. R. 35(b)(1)(B) (litigants should flag

circuit splits in their en banc petitions).

Here, circuits are split on the best reading of the

National Firearms Act’s definition of “machinegun.”

App. 89

The Fifth and Sixth Circuits have held, as I would,

that the Act does not let the Bureau ban bump stocks.

See Cargill, 57 F.4th at 447; Hardin v. Bureau of

Alcohol, Tobacco, Firearms and Explosives, 2023 WL

3065807 (6th Cir. 2023). The Tenth Circuit upheld the

Bureau’s rule, as did this Court. Aposhian, 958 F.3d at

989; Guedes II, 45 F.4th at 310.

Two further factors

reconsideration en banc.

weigh

favor

The bump-stock ban is a glaring example of an

increasingly common story:

1. Congress considers a highly controversial

solution to a modern problem that attracts great

public attention.

2. Despite that attention, Congress does not pass

legislation addressing it.

3. The executive then finds within an old statute

the power to address the problem that Congress

did not.

That is also what happened with student loan

forgiveness. Compare H.R. 6800, 116th Cong. (2020)

with Loan Forgiveness Fact Sheet, White House

(Aug. 24, 2022). And the COVID vaccine mandate.

NFIB v. OSHA, 142 S. Ct. 661, 662 (2022). And the

COVID eviction moratorium. Alabama Association of

Realtors v. HHS, 141 S. Ct. 2485, 2486 (2021). And an

attempted nationwide shift away from coal-fired power

App. 90

stations. West Virginia v. EPA, 142 S. Ct. 2587, 2614

(2022). And efforts to build a wall at our southern

border. See Proclamation 9844, 84 Fed. Reg. 4949

(Feb. 15, 2019) (declaring an emergency at the

southern border to get more funding than Congress had

appropriated). And net neutrality. United States

Telecom Association v. FCC, 855 F.3d 381, 476 (D.C.

Cir. 2017) (Kavanaugh, J, dissenting from denial of

rehearing en banc) (“Congress has debated net

neutrality for many years, but Congress has never

enacted net neutrality legislation or clearly authorized

the FCC to impose common-carrier obligations on

Internet service providers.”).

The point is not that any of those policies is good or

bad. The point is that the executive branch is acting

when Congress does not. That intrudes on Congress’s

constitutionally-assigned role and disincentivizes it

from legislating in the future. Why would Congress

bear the political costs of passing laws when it can let

bureaucrats shoulder them instead? See Elena Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245,

2255–56 (2001) (Congress sometimes enacts “openended grants of power” in order to “pass on to another

body politically difficult decisions”).

I will not rehash here all the reasons why

lawmaking by the executive is problematic. I’ve written

about it before. American Lung Association v. EPA, 985

F.3d 914, 996–97 (D.C. Cir. 2021) (Walker, J.

concurring in part and dissenting in part), overruled by

West Virginia, 142 S. Ct. at 2614. So have many of our

nation’s finest judges and scholars. See, e.g., Baldwin

v. United States, 140 S. Ct. 690, 691 (2020) (Thomas, J.,

App. 91

dissenting from denial of certiorari); Steven G.

Calabresi et al., The Rise and Fall of the Separation of

Powers, 106 Nw. L. Rev. 527, 545–46 (2012). And

Madison before them. The Federalist No. 48 (J.

Madison). And Montesquieu before him.

1 Montesquieu, The Spirit of the Laws 151–62 (Thomas

Nugent trans. 1777).

The Bureau’s rule turns law-abiding bump-stock

owners into criminals. But the Anglo-American legal

system has long restricted the executive branch’s power

to create new crimes. Crimes are made by legislation,

not executive fiat.

That principle has its roots in Magna Carta. After

King John used “summary process” to “arrest and

imprison[ ]” Englishmen on “administrative order[s],”

English Barons forced him to agree to a new set of

limits on his power. J.C. Holt, Magna Carta 276 (3d ed.

2015). Chief among those limits was a commitment

that “[n]o free man shall be arrested or imprisoned . . .

except by the lawful judgment of his peers or by the law

of the land.” Magna Carta, Ch. 39 (1215). After 1215,

the King could not punish an Englishman “without the

application of general rules to the case by a tribunal of

[his] peers.” Nathan S. Chapman & Michael W.

McConnell, Due Process as Separation of Powers, 121

Yale L.J. 1672, 1682 (2012). Those “general rules” were

the “law of the land,” the “standing law that governed

all of the King’s subjects in England.” Id. No longer

could the King impose criminal punishment whenever

it suited his whims.

App. 92

Hard-won by the English Barons, that right was

cherished by the American colonists. It was their

inheritance as Englishmen. And when they

enumerated the limits of a central government in their

new nation, the founders guaranteed that “life, liberty,

or property” may not be taken “without due process of

law.” U.S. Const. Amend. V.

That means that “our Government [must] proceed

. . . according to written constitutional and statutory

provisions . . . before depriving someone of life, liberty,

or property.” Nelson v. Colorado, 581 U.S. 128, 150 n.1

(2017) (Thomas, J., dissenting) (quotation marks

omitted); see also Pacific Mutual Life Insurance Co. v.

Haslip, 499 U.S. 1, 28 (1991) (Scalia, J., concurring)

(noting that the phrase “due process of law” meant “law

of the land”). In other words, the executive branch may

prosecute only those criminal offenses that Congress

has authorized by law. The Due Process Clause “was a

separation-of-powers concept designed as a safeguard

against unlicensed executive action, forbidding only

deprivations not authorized by legislation or common

law.” United States v. Vaello Madero, 142 S. Ct. 1539,

1545 (2022) (Thomas, J., concurring) (quotation marks

omitted).

To Magna Carta’s guarantee of due process, the

Constitution added a second safeguard — an

independent legislature, beholden in no way to the

Executive. Article I’s Vesting Clause makes clear that

Congress alone has the “legislative power.” U.S. Const.

Art. I, § 1.

“Perhaps the most important consequence of th[at]

assignment concerns the power to punish. Any new

App. 93

national laws restricting liberty require the assent of

the people’s representatives and thus input from the

country’s ‘many parts, interests and classes.’” Wooden

v. United States, 142 S. Ct. 1063, 1083 (2022) (Gorsuch,

J., concurring) (quoting The Federalist No. 51 (J.

Madison)). Indeed, since 1812, the Supreme Court has

said that Congress alone defines crimes and fixes

punishments. United States v. Hudson & Goodwin, 11

U.S. (7 Cranch) 32, 34 (1812) (“The legislative

authority of the Union must . . . make an act a crime

[and] affix a punishment to it.”); see also United States

v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820)

(Marshall, C.J.) (“[T]he power of punishment is vested

in the legislative . . . department. It is the legislature

. . . which is to define a crime, and ordain its

punishment.”).

Today, those safeguards are not what they used to

be. In the early 1900s, Congress began to delegate

open-ended powers to executive agencies. Kagan,

supra, at 2255. And by the late 1940s, the Supreme

Court would uphold any delegation if Congress

provided an intelligible principle to guide the agency.

American Power & Light Co. v. SEC, 329 U.S. 90, 105

(1946); see also J.W. Hampton Jr. & Co. v. United

States, 276 U.S. 394, 409 (1928) (coining the

“intelligible principle” phrase). Under the Supreme

Court’s light-touch nondelegation doctrine, it has

upheld as a valid delegation a statute “endow[ing] the

nation’s chief prosecutor with the power to write his

own criminal code governing the lives of a half-million

citizens.” Gundy v. United States, 139 S. Ct. 2116, 2131

(2019) (Gorsuch, J., dissenting); cf. Touby v. United

States, 500 U.S. 160, 165–66 (1991) (it is an open

App. 94

question whether “something more than an ‘intelligible

principle’ is required when Congress authorizes

another Branch to promulgate regulations that

contemplate criminal sanctions”).

Whatever the merits of that development, one

safeguard has not loosened. When Congress does

delegate rulemaking authority, the executive branch

must remain faithful to the statutory text. It may not

use creative interpretations to grab for itself even more

power. But the Bureau’s rule does just that, stretching

the text of the National Firearms Act to criminalize

conduct that Congress has not.

***

The day before the Bureau’s rule, owning a bump

stock was legal. The day after, it carries a ten-year

prison sentence — all without Congress lifting a finger.

I would grant rehearing en banc to reestablish that

the power to make crimes stays where the Constitution

put it — with Congress.

App. 95

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-5042

[Filed April 1, 2019]

_________________________________________

DAMIEN GUEDES, ET AL.,

)

APPELLANTS

)

BUREAU OF ALCOHOL, TOBACCO,

)

FIREARMS AND EXPLOSIVES, ET AL.,

)

APPELLEES

)

_________________________________________ )

Consolidated with 19-5044

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cv-02988)

(No. 1:18-cv-03086)

_____________________________

Argued March 22, 2019 —

Decided April 1, 2019

______________________________

Erik S. Jaffe argued the cause for appellants

Damien Guedes, et al. With him on the briefs were

Joshua Prince and Adam Kraut.

App. 96

Stephen D. Stamboulieh and Alan Alexander Beck

were on the brief for appellants David Codrea, et al.

Ilya Shapiro was on the brief for amicus curiae Cato

Institute in support of appellants.

Conor Shaw and Nikhel S. Sus were on the brief for

amici curiae Citizens for Responsibility and Ethics in

Washington and Former Government and Ethics

Officials in support of appellants.

Steven M. Simpson was on the brief for amici curiae

The New Civil Liberties Alliance and W. Clark

Aposhian in support of appellants.

J. Carl Cecere, Jr. was on the brief for amicus

curiae Morton Rosenberg in support of reversal.

Bradley Hinshelwood, Attorney, and Hashim M.

Mooppan, Deputy Assistant Attorney General, U.S.

Department of Justice, argued the causes for appellees.

With them on the brief were Matthew J. Glover,

Counsel to the Assistant Attorney General, and Scott

R. McIntosh, Michael S. Raab, and Abby C. Wright,

Attorneys.

Ian Simmons, Matt Schock, and Anthony G. Beasley

were on the brief for amicus curiae Giffords Law

Center to Prevent Gun Violence in support of appellees.

Before: HENDERSON, SRINIVASAN and MILLETT,

Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part

filed by Circuit Judge HENDERSON.

App. 97

PER CURIAM: In October 2017, a lone gunman armed

with bump-stock-enhanced semiautomatic weapons

murdered 58 people and wounded hundreds more in a

mass shooting at a concert in Las Vegas, Nevada. In

the wake of that tragedy, the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“Bureau”)

promulgated through formal notice-and-comment

proceedings a rule that classifies bump-stock devices as

machine guns under the National Firearms Act, 26

U.S.C. §§ 5801–5872. See Bump-Stock-Type Devices, 83

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

The then-Acting Attorney General Matthew Whitaker

initially signed the final Bump-Stock Rule, and

Attorney General William Barr independently ratified

it shortly after taking office. Bump-stock owners and

advocates filed separate lawsuits in the United States

District Court for the District of Columbia to prevent

the Rule from taking effect. The district court denied

the plaintiffs’ motions for a preliminary injunction to

halt the Rule’s effective date. Guedes v. Bureau of

Alcohol, Tobacco, Firearms, and Explosives, 356

F. Supp. 3d 109 (D.D.C. 2019). We affirm the denial of

preliminary injunctive relief.

The National Firearms Act (i) regulates the

production, dealing in, possession, transfer, import,

and export of covered firearms; (ii) creates a national

firearms registry; and (iii) imposes taxes on firearms

importers, manufacturers, and dealers, as well as

specified transfers of covered firearms. 26 U.S.C.

§§ 5801–5861. Failure to comply with the National

App. 98

Firearms Act’s requirements results in penalties and

forfeiture, and subjects the violator to the general

enforcement measures available under the internal

revenue laws. Id. §§ 5871–5872.

The firearms subject to regulation and registration

under the National Firearms Act include

“machinegun[s].” 26 U.S.C. § 5845(a).1 The statute

defines a “machinegun” as “any weapon which shoots,

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

automatically more than one shot, without manual

reloading, by a single function of the trigger.” 26 U.S.C.

§ 5845(b). The definition also covers “the frame or

receiver of any such weapon,” as well as “any part” or

“combination of parts designed and intended, for use in

converting a weapon into a machinegun,” and “any

combination of parts from which a machinegun can be

assembled” as long as those “parts are in the possession

or under the control of a person.” Id.

Congress expressly charged the Attorney General

with the “administration and enforcement” of the

National Firearms Act, 26 U.S.C. § 7801(a)(1),

(a)(2)(A), and provided that the Attorney General “shall

prescribe all needful rules and regulations for the

enforcement of” the Act,” id. § 7805; see id.

§ 7801(a)(2)(A).

The Gun Control Act of 1968, 18 U.S.C. § 921 et seq.,

as amended by the Firearm Owners’ Protection Act,

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

a regulatory licensing scheme and criminal prohibitions

Except when quoting sources, we use the two-word spelling of

machine gun.

App. 99

on specified firearms transactions. See 18 U.S.C. § 923

(licensing scheme); id. § 922 (criminal prohibitions).

The Gun Control Act incorporates by reference the

definition of machine gun in the National Firearms

Act, 26 U.S.C. § 5845(b). See 18 U.S.C. § 921(a)(23).

The Gun Control Act also expressly delegates

administrative and rulemaking authority to the

Attorney General to “prescribe only such rules and

regulations as are necessary to carry out the provisions

of this chapter.” Id. § 926(a).

The Attorney General has delegated the

responsibility for administering and enforcing the

National Firearms Act and the Gun Control Act to the

Bureau. See 28 C.F.R. § 0.130(a).

Machine guns are generally prohibited by federal

law. See 18 U.S.C. § 922(o). On the other hand, many

firearms that require a distinct pull of the trigger to

shoot each bullet are lawful. See generally id. § 922; 26

U.S.C. § 5845.

A “bump stock” is a device that replaces the

standard stationary stock of a semiautomatic rifle—the

part of the rifle that typically rests against the

shooter’s shoulder—with a non-stationary, sliding stock

that allows the shooter to rapidly increase the rate of

fire, approximating that of an automatic weapon. 83

Fed. Reg. at 66,516. A bump stock does so by

channeling and directing the recoil energy from each

shot “into the space created by the sliding stock

(approximately 1.5 inches) in constrained linear

App. 100

rearward and forward paths.” Id. at 66,518. In so

doing, the bump stock “harnesses the firearm’s recoil

energy as part of a continuous back-and-forth cycle

that allows the shooter to attain continuous firing”

following a single pull of the trigger. Id. at 66,533. That

design allows the shooter, by maintaining constant

backward pressure on the trigger as well as forward

pressure on the front of the gun, to fire bullets

continuously and at a high rate of fire to “mimic” the

performance of a fully automatic weapon. Id. at 66,516.

Exercising his regulatory authority, the Attorney

General first included a bump-stock type device within

the statutory definition of “machinegun” in 2006. See

ATF Ruling 2006-2; see also Akins v. United States, 312

F. App’x 197, 199 (11th Cir. 2009) (summary order). In

later years, some other bump-stock devices were not

categorized as machine guns. 83 Fed. Reg. at 66,514.

On October 1, 2017, a shooter used multiple

semiautomatic rifles equipped with bump stocks to fire

several hundred rounds of ammunition into a crowd of

concert attendees within a roughly ten-minute span of

time. The “‘rapid fire’ operation” of the shooter’s

weapons enabled by the bump stocks left 58 dead and

approximately 500 wounded. 83 Fed. Reg. at 66,516.

The Las Vegas massacre prompted an immediate

outcry from the public and members of Congress. See

Guedes, 356 F. Supp. 3d at 120, 123. In response,

President Trump “direct[ed] the Department of Justice,

* * * as expeditiously as possible, to propose for notice

and comment a rule banning all devices that turn legal

App. 101

weapons into machineguns.” Application of the

Definition of Machinegun to “Bump Fire” Stocks and

Other Similar Devices, 83 Fed. Reg. 7,949, 7,949

(Feb. 20, 2018). The Bureau then revisited the status of

bump stocks and addressed the variation in its prior

positions. 83 Fed. Reg. at 66,516–66,517. On March 29,

2018, then-Attorney General Sessions issued a Notice

of Proposed Rulemaking that suggested “amend[ing]

the Bureau of Alcohol, Tobacco, Firearms, and

Explosives regulations to clarify that [bump-stock-type

devices] are ‘machineguns’” under 26 U.S.C. § 5845(b).

See Bump-Stock-Type Devices, 83 Fed. Reg. 13,442

(March 29, 2018).

The Bureau promulgated its final rule on

December 26, 2018. With respect to the statutory

definition of machine gun, the Bump-Stock Rule

provided that the National Firearms Act’s use of “the

term ‘automatically’ as it modifies ‘shoots, is designed

to shoot, or can be readily restored to shoot,’” 26 U.S.C.

§ 5845(b), “means functioning as the result of a selfacting or self-regulating mechanism that allows the

firing of multiple rounds through a single function of

the trigger.” 83 Fed. Reg. at 66,553–66,554 (codified at

27 C.F.R. §§ 447.11, 478.11, 479.11). The Rule further

defined “single function of the trigger,” 26 U.S.C.

§ 5845(b), to mean “a single pull of the trigger and

analogous motions.” 83 Fed. Reg. at 66,553–66,554

(codified at 27 C.F.R. §§ 447.11, 478.11, 479.11).

In light of those definitions, the Bump-Stock Rule

concluded that the statutory term “‘machinegun’

includes a bump-stock-type device”—that is, “a device

that allows a semiautomatic firearm to shoot more

App. 102

than one shot with a single pull of the trigger by

harnessing the recoil energy of the semiautomatic

firearm to which it is affixed so that the trigger resets

and continues firing without additional physical

manipulation of the trigger by the shooter.” 83 Fed.

Reg. at 66,553–66,554 (codified at 27 C.F.R. §§ 447.11,

478.11, 479.11).

In adopting the Bump-Stock Rule, the Bureau relied

on both the “plain meaning” of the statute and the

agency’s charge to implement the National Firearms

Act and the Gun Control Act. 83 Fed. Reg. at 66,527

(citing and invoking Chevron U.S.A. v. Natural Res.

Def. Council, 467 U.S. 837 (1984)). The Bureau

explained that the Bump-Stock Rule both “accord[s]

with the plain meaning” of the statute, and “rests on a

reasonable construction of” any “ambiguous” statutory

terms. Id. In the Bureau’s view, by not further defining

the terms “automatically” and “single function of the

trigger,” Congress “left it to the [Attorney General] to

define [them] in the event those terms are ambiguous.”

Id. (citing Chevron, 467 U.S. at 844); see also id. at

66,515 (citing delegations of regulatory authority under

26 U.S.C. §§ 7801(a)(2)(A), 7805(a), and 18 U.S.C.

§ 926(a)).

The Bureau was explicit that the Bump-Stock Rule

would only become “effective” on March 26, 2019,

ninety days after promulgation. 83 Fed. Reg. at 66,514.

The Bureau further assured that individuals would be

subject to “criminal liability only for possessing bumpstock-type devices after the effective date of regulation,

not for possession before that date.” Id. at 66,525; see

also id. (providing that the Rule “criminalize[s] only

App. 103

future conduct, not past possession of bump-stock-type

devices that ceases by the effective date”); id. at 66,539

(“To the extent that owners timely destroy or abandon

these bump-stock-type devices, they will not be in

violation of the law[.]”). Bump-stock owners were

directed to destroy their devices or leave them at a

Bureau office by March 26, 2019. Id. at 66,514.

Although most of the rulemaking process occurred

during the tenure of Attorney General Jefferson

Sessions, he resigned his office on November 7, 2018.

The President then invoked the Federal Vacancies

Reform Act of 1998 (“Reform Act”), 5 U.S.C.

§ 3345(a)(3), to designate Matthew Whitaker, who had

been Sessions’ chief of staff, “to perform the functions

and duties of the office of Attorney General, until the

position is filled by appointment or subsequent

designation.” Memorandum from President Donald

Trump to Matthew George Whitaker, Chief of Staff,

Department of Justice (Nov. 8, 2018), J.A. 277. The

final Bump-Stock Rule was signed by then-Acting

Attorney General Whitaker. Whitaker served as the

Acting Attorney General for 98 days, until William

Barr was sworn in as the Attorney General on

February 14, 2019. See Bump-Stock-Type Devices, 84

Fed. Reg. 9,239, 9,240 (March 14, 2019).

On March 11, 2019, Attorney General Barr

announced that he had “independently reevaluate[d]”

the Bump-Stock Rule and the “underlying rulemaking

record.” 94 Fed. Reg. at 9,240. “[H]aving reevaluated

those materials without any deference to [Whitaker’s]

earlier decision,” Attorney General Barr “personally

App. 104

c[a]me to the conclusion that it is appropriate to ratify

and affirm the final rule,” and did so. Id.

Three groups of bump-stock owners and advocates

filed suit in the United States District Court for the

District of Columbia to prevent the Bump-Stock Rule

from taking effect. See Damien Guedes v. Bureau of

Alcohol, Tobacco, Firearms, and Explosives, No. 18-cv2988; David Codrea v. William P. Barr, No. 18-cv-3086;

Firearms Policy Coalition, Inc. v. William P. Barr,

No. 18-cv-3083. As relevant here, the Guedes plaintiffs

(“Guedes”) and the Codrea plaintiffs (“Codrea”) argued

that the Bureau promulgated the Bump-Stock Rule in

violation of the Administrative Procedure Act, 5 U.S.C.

§ 500 et seq. Also, the Firearms Policy Coalition

(“Coalition”) and Codrea argued that Acting Attorney

General Whitaker lacked the legal authority to

promulgate the Rule because his designation as Acting

Attorney General violated the Attorney General Act, 28

U.S.C. § 508, and the Appointments Clause of the

Constitution, Article II, Section 2, Clause 2.

The district court denied all three motions for a

preliminary injunction. Guedes, 356 F. Supp. 3d at 119.

The district court concluded that Guedes, Codrea, and

the Coalition had not demonstrated a likelihood of

success on the merits. The court first held that “[m]ost

of the plaintiffs’ administrative law challenges are

foreclosed by the Chevron doctrine,” and the Rule

“adequately explained” the agency’s decision to classify

bump-stock-type devices as machine guns. Id. at 120.

As to the challenges to Whitaker’s authority, the

district

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