Amicus Curiae Brief — Damien Guedes, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al.
Supreme Court briefJul 20, 2023
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No. 22-1222
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IN THE
Supreme Court of the United States
____________________
DAMIEN GUEDES, ET AL.,
Petitioners,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND
EXPLOSIVES, ET AL., Respondents.
____________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the D.C. Circuit
____________________
Brief Amicus Curiae of Gun Owners of
America, Inc., Gun Owners Foundation, Gun
Owners of California, Virginia Citizens
Defense League, Tennessee Firearms
Association, Grass Roots North Carolina,
Rights Watch International, Heller
Foundation, America’s Future, and
Conservative Legal Defense and Education
Fund in Support of Petitioners
____________________
JOHN I. HARRIS III
Nashville, TN
RICK BOYER
Lynchburg, VA
KERRY L. MORGAN
Wyandotte, MI
WILLIAM J. OLSON*
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
(703) 356-5070
wjo@mindspring.com
Attorneys for Amici Curiae
*Counsel of Record
July 20, 2023
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I.
ATF’S REVERSAL OF ITS LONGSTANDING
POSITION THAT BUMPSTOCKS ARE NOT
MACHINE GUNS WAS DIRECTED BY PRESIDENT
TRUMP, NOT BASED ON A NEW AGENCY
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. THE D.C. CIRCUIT ASSUMED THAT
BUMPSTOCKS WERE USED IN THE LAS VEGAS
SHOOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III. THE D.C. CIRCUIT ADJUDGED ATF’S
POLITICALLY DIRECTED REINTERPRETATION
OF “MACHINEGUN” TO BE THE “BEST”
POSSIBLE INTERPRETATION . . . . . . . . . . . . . . . 15
A. The Regulation Amended the Statute . . . 15
B. The Statutory Term “Automatically” Is
Clear and Unambiguous, and Does Not
Require Supplementation . . . . . . . . . . . . . 16
ii
C. The Statutory Phrase “Single Function
of the Trigger” Is Clear and Does Not
Mean “Single Pull of the Trigger” . . . . . . 18
IV. TWO SIXTH CIRCUIT PANELS HAVE
INVALIDATED THE ATF BUMPSTOCK RULE . . . . 20
V. COURTS MAY NOT INTERPRET STATUTES
BASED ON MARKETING MATERIALS OR
REWRITE STATUTES TO BETTER IMPLEMENT
PERCEIVED CONGRESSIONAL CONCERNS . . . . . 23
A. Marketing Materials . . . . . . . . . . . . . . . . . 23
B. Perceived Congressional Concern . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii
TABLE OF AUTHORITIES
Page
STATUTES
26 U.S.C. § 5845 . . . . . . . . . . . . . . . . . . . 7, 11, 15, 17
REGULATIONS
27 C.F.R. § 478.11 . . . . . . . . . . . . . . . . . . . . . . . . . 16
CASES
Aposhian v. Barr, 374 F. Supp. 3d 1145 (D. Ut.
2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Bittner v. United States, 143 S. Ct. 713 (2023) . . . . 8
Chevron v. Nat. Res. Def. Council, 467 U.S.
837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Christensen v. Harris County, 529 U.S. 576
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Dig. Realty Trust, Inc. v. Somers, 138 S. Ct. 767
(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Gun Owners of Am. v. Barr, 363 F. Supp. 3d
823 (W.D. Mich. 2019) . . . . . . . . . . . . . . . . . . . 21
Gun Owners of Am., Inc. v. Garland, 992 F.3d
446 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . 13, 22
Gun Owners of Am., Inc. v. Garland, 19 F.4th
890 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . 22, 23
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142
(10th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . 12
Hardin v. Bureau of Alcohol, Tobacco, Firearms
& Explosives, 65 F.4th 895 (6th Cir. 2023). . . 21
Staples v. United States, 511 U.S. 600 (1994). . . . 19
United States v. Apel, 571 U.S. 359 (2014) . . . . . . 21
United States v. Davis, 139 S. Ct. 2319 (2019) . . . 12
Utility Air Regulatory Group v. EPA, 573 U.S.
302 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 25
iv
Whitman v. United States, 574 U.S. 1003
(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Wisconsin Central Ltd. v. United States, 138
S. Ct. 2067 (2018). . . . . . . . . . . . . . . . . . . . . . . 25
MISCELLANEOUS
A. Alexander, “Trump says he is ‘writing out’
bump stocks,” Politico (Feb. 26, 2018) . . . . . . 10
“Application of the Definition of Machinegun
to ‘Bump Fire’ Stocks and Other Similar
Devices,” 82 Fed. Reg. 60,929 (Dec. 26,
2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9
Application of the Definition of Machinegun
to “Bump Fire” Stocks and Other Similar
Devices, Memorandum for the Attorney
General (Feb. 20, 2018), 83 Fed. Reg. 7,949
(Feb. 23, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 10
ATF Deputy Chief, Disclosure Division Peter J.
Chisholm May 1, 2019 letter . . . . . . . . . . . . . . 14
“Bump-Stock-Type Devices,” 83 Fed. Reg.
13,442 (Mar. 29, 2018) . . . . . . . . . . . . . . . . . 2, 11
“Bump-Stock-Type Devices,” 83 Fed. Reg.
66,514 (Dec. 26, 2018) . . . . . . . . . . . . . . . . . 2, 11
D. Codrea, “Las Vegas Bump Stock FOIA
Claims ATF Not Allowed to Examine
Weapons,” Ammoland (Aug. 15, 2018) . . . . . . 14
FBI, Key Findings of the Behavioral Analysis
Unit’s Las Vegas Review Panel (LVRP) . . . . . 13
LVMPD Preliminary Investigative Report,
1 October / Mass Casualty Shooting (Jan.
18, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
v
C. Mossburg, “Guns belonging to Las Vegas
massacre shooter destroyed, property sold
with proceeds to be divided among victims’
families,” CNN (Apr. 21, 2023) . . . . . . . . . . . . 14
“President Trump ‘open’ to discussion of ‘bump
stocks’ ban,” CNN Wire (Oct. 5, 2017) . . . . . . . 9
A. Scalia and B. Garner, Reading Law (West
Publishing: 2012) . . . . . . . . . . . . . . . . . . . . . . 17
INTEREST OF THE AMICI CURIAE1
Gun Owners of America, Inc., Gun Owners
Foundation, Gun Owners of California, Virginia
Citizens Defense League,
Tennessee Firearms
Association, Grass Roots North Carolina, Rights
Watch International, Heller Foundation, America’s
Future, and Conservative Legal Defense and
Education Fund are nonprofit organizations, exempt
from federal income tax under either section 501(c)(3)
or section 501(c)(4) of the Internal Revenue Code.
These entities, inter alia, participate in the public
policy process, including conducting research, and
informing and educating the public on the proper
construction of state and federal constitutions, as well
as statutes related to the rights of citizens, and
questions related to human and civil rights secured by
law.
STATEMENT OF THE CASE
On October 1, 2017, the most deadly mass shooting
in the history of the country occurred in Las Vegas,
Nevada, targeting attendees at a music festival
adjacent to the Mandalay Bay Resort and Casino,
resulting in the death of at least 58 persons.
Bumpstocks were found attached to certain of the
1
It is hereby certified that counsel of record for all parties
received notice of the intention to file this brief at least 10 days
prior to the filing of it; that no counsel for a party authored this
brief in whole or in part; and that no person other than these
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
2
semi-automatic rifles found in the room of Stephen
Paddock.
In response, President Donald Trump directed the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) to take action against bumpstocks. Prior to
that, ATF had maintained the longstanding position
that non-mechanical bumpstocks were not machine
guns and did not convert a semi-automatic firearm
into a machinegun. However, after the President’s
directive, ATF began the process to reverse that
position. On December 26, 2017, ATF published an
Advance Notice of Proposed Rulemaking (“ANPRM”)
entitled “Application of the Definition of Machinegun
to ‘Bump Fire’ Stocks and Other Similar Devices,” 82
Fed. Reg. 60,929 (Dec. 26, 2017). On March 29, 2018,
ATF published a Notice of Proposed Rulemaking
entitled “Bump-Stock-Type Devices,” 83 Fed. Reg.
13,442 (Mar. 29, 2018). Exactly one year after its
ANPRM, on December 26, 2018, ATF published its
final rule, effective on March 26, 2019.
“Bump-Stock-Type Devices,” 83 Fed. Reg. 66,514 (Dec.
26, 2018). The ATF rule criminalized possession of
519,927 bumpstocks, ordering those who had lawfully
acquired them in accordance with prior ATF ruling
letters to either destroy them or surrender them to law
enforcement.
Plaintiff Damien Guedes, joined by another
individual and three organizational plaintiffs,
challenged the Rule in the U.S. District Court for the
District of Columbia. On February 25, 2019, the
district court denied Plaintiffs’ request for a temporary
injunction. Guedes v. BATFE, 356 F. Supp. 3d 109
3
(D.D.C. 2019) (“Guedes I”). Relying on Chevron v. Nat.
Res. Def. Council, 467 U.S. 837 (1984), despite the fact
that no party had argued it applied, the district
deferred to the ATF’s revised interpretation:
“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’ ... but it did not further
define the terms ‘single function of the trigger’ or
‘automatically.’
According to the district court,
because both terms were ambiguous, ATF was
permitted to reasonably interpret them.” Guedes I at
120.
In April 2019, the D.C. Circuit affirmed the district
court’s denial of injunctive relief. Guedes v. BATFE,
920 F.3d 1 (D.C. Cir. 2019) (“Guedes II”), and this
Court declined to stay the Final Rule. Guedes v.
BATFE, 2019 U.S. LEXIS 2483 (2019). This Court
then denied Plaintiffs’ petition for certiorari. Guedes
v. BATFE, 140 S. Ct. 789 (2020).
In 2021, the district court granted summary
judgment to ATF. Guedes v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 520 F. Supp. 3d 51
(D.D.C. 2021) (“Guedes III”). The D.C. Circuit
affirmed, but on different grounds. Although the
district court had found the disputed statutory terms
ambiguous and gave Chevron deference to ATF’s
interpretation, the Court of Appeals ruled that the
ATF’s reinterpretation was actually the “best”
interpretation of the statutory language. Guedes v.
BATFE, 45 F.4th 306, 313 (D.C. Cir. 2022) (“Guedes
IV”). In May 2023, the D.C. Circuit denied Plaintiffs’
4
petition for rehearing en banc. Guedes v. Bureau of
Alcohol, 66 F.4th 1019 (D.C. Cir. 2023).
SUMMARY OF ARGUMENT
The D.C. Circuit Court treated the challenged ATF
Rule, which reversed more than a decade of ATF letter
rulings that bumpstocks were not machineguns, as if
it was the product of a thoughtful reexamination of the
statutory text. It was not. The Rule implemented a
political, not legal, Presidential decision to ban
bumpstocks after the most deadly mass shooting in the
history of the country near the Mandalay Bay Resort
and Casino in Las Vegas. Making the decision to ban
bumpstocks even more curious, the court simply
assumed that bumpstocks had been used in Las Vegas,
despite the absence of any law enforcement source for
that assertion. ATF later admitted it has no records
showing that bumpstocks had ever been used in
crimes. Nevertheless, as the ATF Rule explained, all
519,927 privately owned bumpstocks that had been
purchased lawfully were required either to be turned
into law enforcement or destroyed, or their law-abiding
owners would be charged with felonies.
Despite the fact that the ATF Rule was directed by
President Trump, the court believed it to provide the
“best” possible interpretation of the statute. The only
reason the court offered for why the statute had been
viewed differently in the past was that the agency had
not “engaged” with the statute. To achieve President
Trump’s directive, ATF was required to make
substantial changes to the regulatory definition of
machine gun that are at odds with the statutory
5
definition. Even with those changes, ATF found it
necessary to add a sentence expressly decreeing that
bumpstocks are now machineguns.
The statute requires that a “machinegun” operate
“by a single function of the trigger,” but the Rule
rewrites that phrase as “by a single pull of the
trigger.” “Single function of the trigger” clearly and
unambiguously refers to the mechanical process
through which the trigger goes (what the firearm is
doing). The phrase clearly does not refer to the
biological process (what the shooter is doing) which
sets this mechanical process into motion. The statute
requires that a machinegun fire “automatically ... by
a single function of the trigger.” But bumpstocks
require coordinated human inputs not involving the
trigger — applying forward pressure to the rifle and
rearward pressure on the bumpstock (which the court
disregarded as incidental “analogous motions”).
While the court below believed ATF had achieved
the “best” interpretation of the statute, in other
challenges the Rule was considered to be inconsistent
with the statute. In one of these cases, where eight
circuit court judges took this position, a Petition for
Certiorari is before the Court in Garland v. Cargill,
No. 22-976. These amici urge that the Guedes petition
be held, the Cargill petition be granted, and the Rule
be overturned.
ARGUMENT
The Petition for Certiorari (“Pet. Cert.”)
summarizes the multitude of challenges that have
6
been brought against the ATF Bumpstock Rule across
the country, and recounts the conflicting decisions
reached in those challenges. Noting the split among
the circuits on the issue, the Petition notes that “at
least 30 opinions authored or joined by 57 different
federal judges, totaling over 400 reported pages, have
addressed” the Rule. Pet. Cert. at 5, 16-24.
These amici agree that this Court’s review is
required to resolve a circuit split, and resolve an
important but undecided matter of federal law. In
fact, some of these amici (Gun Owners of America,
Gun Owners Foundation, and Virginia Citizens
Defense League) brought a challenge against the Rule
in the Western District of Michigan which, on appeal
to the Sixth Circuit, achieved the first decision
overturning the Rule, but which was later vacated
when the Sixth Circuit split evenly (8-8) after
argument on rehearing en banc. This Court chose not
to grant review in that case. See Section IV, infra.
This amicus brief primarily seeks to supplement
Petitioners’ treatment of the opinion of the D.C.
Circuit below, and set out additional facts about the
origin and approach of the ATF in devising its new
Rule banning bumpstocks.
Amici urge that the petition should be held
pending resolution of the petition for writ of certiorari
in Garland v. Cargill, No. 22-976, which should be
granted, and the bumpstock rule overturned.
7
I.
ATF’S REVERSAL OF ITS LONGSTANDING
POSITION THAT BUMPSTOCKS ARE NOT
MACHINE GUNS WAS DIRECTED BY
PRESIDENT TRUMP, NOT BASED ON A
NEW AGENCY ANALYSIS.
Repeatedly, the D.C. Circuit asserted that the ATF
Rule refining the statutory meaning of “machinegun”
(26 U.S.C. § 5845(b))2 provides not just a “reasonable”
interpretation, but rather “the best interpretation of
‘machine gun’ under the governing statutes.” Guedes
IV at 310; see also id. at 313, 314, 317, 319, 322. By
sidestepping the district court’s finding of statutory
ambiguity, the D.C. Circuit avoided the need to
address the thorny issue of Chevron deference.
The circuit court summarized
longstanding position as follows:
the
ATF’s
Between 2008 and 2017 ... 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
2
The ATF reinterpretation focused primarily on two elements of
the definition found in 26 U.S.C. § 5845, which are bolded here:
“Machinegun. The term ‘machinegun’ means any weapon which
shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by
a single function of the trigger.” (Emphasis added.)
8
did not engage with the meaning of the
term. [Id. at 311 (emphasis added) (citing
ATF’s Bump Stock Rule at 66,518).]
Apparently, the circuit court did not find it the least
bit surprising that, for many years, ATF had
repeatedly and consistently interpreted and applied a
Congressional statute without — as the circuit court
put it — ever having “engage[d]” with the meaning
of the statutory text. Rather, the circuit court
impliedly concluded that, only when ATF was under
political pressure did it finally bother to examine the
statute it was charged with enforcing, and only then
did it arrive at not just a “reasonable” or “permissible”
interpretation — but the very “best” one. On the
contrary, “when the government … speaks out of both
sides of its mouth, no one should be surprised if its
latest utterance isn’t the most convincing.” Bittner v.
United States, 143 S. Ct. 713, 722 n.5 (2023).
The circuit court provided a one-sentence
explanation of what motivated ATF to change its
longstanding position:
In the aftermath of the Las Vegas shooting,
then-President 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-announcesbump-stock-type-devices-final-rule. [Guedes
IV at 311 (emphasis added).]
9
This abbreviated version of events not only fails to
provide relevant information, but also is profoundly
misleading. President Trump did not “urge” the
Bureau to “revisit” its position, but rather explicitly
“direct[ed]” the agency to “propose” a rulemaking to
reverse its position.
On October 5, 2017, the Trump White House
initially signaled its willingness to support legislation
to ban bumpstocks.3 But the administration quickly
shifted from supporting legislation to demanding
administrative action — without Congress. Shortly
thereafter, ATF published its Advance Notice of
Proposed Rulemaking entitled “Application of the
Definition of Machinegun to ‘Bump Fire’ Stocks and
Other Similar Devices” on December 26, 2017.4 The
deadline for comments was January 25, 2018.5
On February 20, 2018, President Trump then
issued an order to the U.S. Department of Justice in
the form of a “Memorandum for the Attorney General”
that was published in the Federal Register on
February 23, 2018:
3
“President Trump ‘open’ to discussion of ‘bump stocks’ ban,”
CNN Wire (Oct. 5, 2017).
4
Gun Owners of America’s Comments in response to the ANPRM
were submitted on January 9, 2018. Gun Owners Foundation’s
Comments were filed on January 18, 2018.
5
In response, over 115,000 comments were received, and over
35,000 comments were posted on regulations.gov, with 85 percent
of commenters opposing the ban.
10
Today, I am directing the Department of
Justice to dedicate all available resources to
complete the review of the comments
received, and, as expeditiously as possible,
to propose for notice and comment a rule
banning all devices that turn legal weapons
into machineguns.
[Application of the
Definition of Machinegun to “Bump Fire”
Stocks and Other Similar Devices,
Memorandum for the Attorney General (Feb.
20, 2018), 83 Fed. Reg. 7,949 (Feb. 23, 2018).]
That February 23, 2018 Memorandum
(i) confirmed the Presidential directive was motivated
by the Las Vegas Shooting, and (ii) blamed the Obamaera ATF for having “repeatedly conclud[ing] that
particular bump stock type devices were lawful.” Id.
And, after noting that the Department of Justice had
received “100,000 comments” on its Advance Notice of
Proposed Rulemaking, where comments concluded
January 25, 2018, the President essentially directed
that the comments from the public be scanned
through, and regardless of what problems they
revealed, ATF simply should issue a rule “banning”
bump stocks through “swift and decisive action.” Id.
Three days later, on February 26, 2018, President
Trump made his direction to ATF even more clear:
“Bump stocks, we are writing that out. I am writing
that out.” “I don’t care if Congress does it or not, I’m
writing it out myself.”6
6
A. Alexander, “Trump says he is ‘writing out’ bump stocks,”
Politico (Feb. 26, 2018).
11
This series of statements provides no indication
that President Trump ordered that ATF ban bump
stocks based on any thoughtful re-examination of the
statutory text, 26 U.S.C. § 5845(b). Nevertheless, on
March 29, 2018, ATF followed the President’s
directive, issuing its Notice of Proposed
Rulemaking entitled “Bump-Stock-Type Devices,”
with comments due by June 27, 2018.7 The Comments
filed by amicus Gun Owners Foundation8 asserted:
ATF has only the authority delegated to it by
Congress through statute.
President
Trump’s ordering ATF to ban bump
stocks by administrative fiat may place the
agency in an uncomfortable position, but it
does [not] grant ATF the authority to regulate
bump stocks.
The NPRM reflects a
political decision, not a legal one, which is
in clear conflict with both the law and with all
prior ATF rulings on the subject, and therefore
should be withdrawn. [Emphasis added.]
On December 26, 2018, ATF published its final
rule, effective on March 26, 2019. “Bump-Stock-Type
Devices,” 83 Fed. Reg. 66514 (Dec. 26, 2018).
To be sure, when an agency is ordered to reverse
its position, and basically to disregard the comments
7
8
The ATF received 193,297 comments.
Gun Owners Foundation’s Comments in response to the NPRM
were submitted on May 9, 2018. Gun Owners of America’s
Comments were filed on May 15, 2018.
12
submitted in response to a proposed rulemaking, the
Administrative Procedure Act is flouted, not followed.
Even more significantly, when the agency reverses its
position on a dime based on orders from elected
officials rather than reasoned analysis, this is not the
rule of law, but rather “‘the King ... creat[ing] an[]
offence by ... proclamation, which was not an offence
before.’” Whitman v. United States, 574 U.S. 1003,
1004 (2014) (Scalia, J., dissenting from denial of
certiorari).
Indeed, an agency cannot “reverse its current view
180 degrees anytime based merely on the shift of
political winds and still prevail.” Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch,
J., concurring). Nor may an agency “rewrit[e] ...
unambiguous statutory terms” to suit “bureaucratic
policy goals.” Utility Air Regulatory Group v. EPA, 573
U.S. 302, 325 (2014). These principles have particular
application when the sanctions that the agency seeks
to impose on Americans are criminal, as they are here.
Rather, “[o]nly the people’s elected representatives in
Congress have the power to write new federal criminal
laws.” United States v. Davis, 139 S. Ct. 2319, 2323
(2019).
II. THE D.C. CIRCUIT ASSUMED THAT
BUMPSTOCKS WERE USED IN THE LAS
VEGAS SHOOTING.
The D.C. Circuit decision repeatedly asserted,
without citation, that bumpstocks were “used” in the
Las Vegas shooting. Guedes IV at 310, 311 n.2, 318.
Insofar as that shooting provided the political impetus
13
for President Trump to direct the Department of
Justice to reverse its position that bumpstocks were
not machineguns, it is important to locate a source for
the Court’s factual representation.9 Based on reports
on the shooting from the Las Vegas Metropolitan
Police Department10 and the FBI,11 the more correct
statement would be that rifles equipped with
bumpstocks were found in the hotel room of Stephen
Paddock.
Three other facts also make it even more uncertain
as to whether there was any “use” of bumpstocks in
Las Vegas. First, there was no ATF report on the Las
Vegas shooting to that effect. In fact, the FBI actually
9
Numerous court opinions have stated as fact that bumpstocks
were used without citation to any authority. See, e.g., Aposhian
v. Barr, 374 F. Supp. 3d 1145, 1148 (D. Ut. 2019) (“a lone shooter
employing multiple semi-automatic rifles with attached bumpstock-type devices fired several hundred rounds of ammunition
into a crowd”); Gun Owners of Am., Inc. v. Garland, 992 F.3d 446,
452-453 (6th Cir. 2021) (“The gunman used bump-stock devices
attached to his semiautomatic rifles to increase his rate of firing”).
10
The Las Vegas Police report on the shooting showed pictures of
approximately 13 rifles in Paddock’s room, to which were affixed
bumpstocks, but did not state they were used. See LVMPD
Preliminary Investigative Report, 1 October / Mass Casualty
Shooting (Jan. 18, 2018).
11
The FBI’s report on the shooting shocked many, in that it
consisted only of a three-page behavioral analysis, which did not
assert that bumpstocks were used. See FBI, Key Findings of the
Behavioral Analysis Unit’s Las Vegas Review Panel (LVRP)
(undated). Lastly, the FBI released in its “The Vault” website two
groups of heavily-redacted documents involving Paddock which do
not appear to establish use of bumpstocks.
14
refused to allow the ATF personnel to inspect the rifles
found in Paddock’s room.12 Second, when a FOIA
request was made to ATF about the use of bumpstocks
in a crime, ATF provided the following response: “We
have conducted a search for ‘any records documenting
the use of a bump fire-type stock used during the
commission of any crime to date,’ and found no
responsive records.”13 This ATF response, made on
May 1, 2019, was long after the October 1, 2017 Las
Vegas shooting. While it is possible, one would assume
that if bumpstocks had been known to have been
“used” in the Las Vegas shooting, ATF would have had
records of such a report, and would have produced
them. Lastly, it appears that no further examination
of many of Paddock’s weapons will be possible, as it
has been reported that “[o]f the 49 guns Paddock
owned, 13 have been retained by the FBI and the rest
were destroyed....”14
12
See ATF briefing slide on “Las Vegas Recovered Weapons and
Ammunition” (“ATF personnel were not allowed to physically
examine the interior of the weapons for machinegun fire-control
components....”). See D. Codrea, “Las Vegas Bump Stock FOIA
Claims ATF Not Allowed to Examine Weapons,” Ammoland (Aug.
15, 2018).
13
See ATF Deputy Chief, Disclosure Division Peter J. Chisholm
May 1, 2019 letter to attorney Stephen Stamboulieh (emphasis
added).
14
C. Mossburg, “Guns belonging to Las Vegas massacre shooter
destroyed, property sold with proceeds to be divided among
victims’ families,” CNN (Apr. 21, 2023).
15
III. THE D.C. CIRCUIT ADJUDGED ATF’S
P O L I T I C A L L Y
D I R E C T E D
REINTERPRETATION OF “MACHINEGUN”
TO BE THE “BEST” POSSIBLE
INTERPRETATION.
As discussed supra, the D.C. Circuit had no
problem with ATF being directed to issue a revised
regulation to achieve a politically desired result,
despite its variance from the statutory text and despite
its reversing more than a decade of ATF’s own contrary
rulings. See Guedes IV at 311. Rather, the court went
further to conclude that this politically directed rewrite
somehow achieved the “best” possible interpretation of
the statute. See id. at 310. To the contrary, the Rule
presents neither the “best,” nor even a “reasonable”
interpretation.
A. The Regulation Amended the Statute.
According to Congress, a machinegun is “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) (emphasis
added). When this definition, which was repeated in
the ATF regulation, is applied to a bumpstock, ATF’s
longstanding position that a bumpstock is not a
machinegun is clearly correct. Thus, to implement the
directive it received, it was necessary for ATF to issue
the following regulation that both substantially varied
from, and supplemented, the statute, for the sole
purpose of covering bumpstocks:
16
For purposes of this definition, the term
“automatically” as it modifies “shoots, is
designed to shoot, or can be readily restored to
shoot,” means functioning as the result of a
self-acting or self-regulating mechanism
that allows the firing of multiple rounds
through a single function of the trigger; and
“single function of the trigger” means a
single pull of the trigger and analogous
motions. [27 C.F.R. § 478.11 (emphasis
added).]
Yet even after literally replacing a key word (“pull”) in
the statute, ATF still found it necessary to add another
sentence to the end of its revised definition:
The term “machine gun” includes a
bump-stock-type device.... [Id. (emphasis
added)]
Were there any remaining doubt, this last provision in
the new regulation confirms that ATF was seeking not
to achieve the “best” interpretation of the statute, but
rather to achieve the particular result that President
Trump directed.
B. The Statutory Term “Automatically” Is
Clear and Unambiguous, and Does Not
Require Supplementation.
A shooter using a bumpstock must apply both
forward pressure to the rifle, and rearward pressure on
the bumpstock, in order both to begin and to maintain
a sequence of bump fire. This necessary application of
17
simultaneous and opposing pressures by the shooter
means that a bumpstock does not in any sense operate
“automatically.”
Nor could the required human inputs, made on
parts of the firearm that are not the trigger, mean that
the weapon fires “automatically ... by a single function
of the trigger.” The statute must be read as a whole.
A machinegun is one 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). A “single function of the trigger” is
critical limiting language for “automatically,”
representing the starting and the ending point of just
how much input is allowable.
Paradoxically, the D.C. Circuit previously asserted
that “by a single function of the trigger” does not
necessarily mean “by only a single function of the
trigger,” but instead could mean “by a single function
of the trigger” plus “some further degree of manual
input.” Guedes II at 31. This explanation blatantly
violates the rule that “[n]othing is to be added to what
the text states or reasonably implies ... a matter not
covered is to be treated as not covered.” A. Scalia and
B. Garner, Reading Law at 93 (West Publishing:
2012). As Judge Henderson explained in her dissent to
the D.C. Circuit’s denial of a preliminary injunction,
“[t]he statute specifies a single function; the Rule
specifies a single function plus.” Guedes II at 35
(Henderson, J., dissenting). To stop reading after
“automatically” would be to miss the meaning of the
statute; the definition of machinegun is not limited
simply to automatic shooting, but to automatic
18
shooting that occurs without manual reloading and
by a single function of the trigger. See id. at 43
(Henderson, J., dissenting).
“In sum,” the D.C. Circuit eventually held in the
case below, “automatically is best understood to mean
a ‘result of a self-acting or self-regulating mechanism.’”
Guedes IV at 317. But a bumpstock-equipped rifle is
not “self-acting” or “self-regulating.” Rather, it is
human-acted and human-regulated.
Without
continuous forward pressure to the rifle and
continuous rearward pressure to the bumpstock by the
operator, there would be no counteracting of the
firearm’s recoil, no additional forward pressure, and
thus no additional “functions of the trigger” and no
additional shots fired.
In criticizing Plaintiffs’ approval of ATF’s historic
interpretation of “automatically,” the court asserts that
even a conventional machine gun requires more than
a “single function of the trigger,” because “the shooter
must both pull the trigger and keep his finger
depressed on the trigger to continue firing.” Guedes
IV at 321 (emphasis added). This is equivalent to
arguing that putting your foot down involves multiple
“functions of the foot,” since after putting your foot
down, it remains on the ground.
C. The Statutory Phrase “Single Function of
the Trigger” Is Clear and Does Not Mean
“Single Pull of the Trigger.”
The statute defines a “machinegun” as one that
operates “by a single function of the trigger,” but the
19
Rule rewrites that phrase as “by a single pull of the
trigger.” The words “function” and “pull” are not
synonyms, nor are they even related concepts. “Single
function of the trigger” clearly and unambiguously
refers to the mechanical process through which the
trigger goes (i.e., what the firearm is doing). The
phrase clearly does not refer to the biological
process (i.e., what the shooter is doing) which sets
this mechanical process into motion.
According to the D.C. Circuit, the ATF rewrite of
the statute relied on part of a footnote from this Court
which states: “a weapon that fires repeatedly with a
single pull of the trigger.” Staples v. United States,
511 U.S. 600, 602 n.1 (1994); see Guedes IV at 314.
But this excerpt from Staples distorts this Court’s
actual meaning. The cited note in Staples continues:
“once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is
released.” Id. (emphasis added). It is clear that this
Court was describing an actual machine gun — not a
bumpstock-equipped semiautomatic rifle where which
the trigger is “released” and reset with every shot.
In further blue penciling the statutes, the court
below ruled that, “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....’” Guedes IV at 317 (emphasis
added). Apparently substituting “pull” for “function”
was not enough, so ATF gratuitously added “and
analogous motions” — not to achieve the “best”
interpretation of the statute, but to ban bumpstocks.
20
If the statutory text were applied, it is clear a
bumpstock-equipped rifle fires only a single round “by
a single function of the trigger.” Each time the trigger
of a semiautomatic firearm is depressed and reset (one
complete function of the trigger), one round is fired.
Click, bang, click. A bumpstock does not change this
mechanical operation, but only facilitates the shooter
making the process occur more rapidly. On the other
hand, an actual machinegun fires a series of shots for
each “function” of the trigger. Click, bang, bang, bang,
click.
Indeed, the D.C. Circuit has previously
acknowledged as much, noting that the statute as
written “would tend to exclude bump-stock devices: ...
a semiautomatic rifle outfitted with a bump stock ...
engender[s] a rapid bumping of the trigger against the
shooter’s stationary finger, such that each bullet is
fired because of a distinct mechanical act of the
trigger.” Guedes II at 29 (emphasis added). Judge
Henderson’s dissent to that decision was even more
clear — “a bump stock cannot fire more than one round
with a single function of the trigger.... If the focus is —
as it must be — on the trigger, a bump stock does not
qualify as a ‘machinegun.’” Id. at 47-48 (Henderson,
J., dissenting).
IV. TWO SIXTH CIRCUIT PANELS HAVE
INVALIDATED THE ATF BUMPSTOCK
RULE.
In its August 9, 2022 opinion, the D.C. Circuit
reported that “every circuit to have considered this
question has so far upheld the Bump Stock Rule.”
21
Guedes IV at 322. That review of the circuits counted
the Sixth Circuit as having upheld the rule, but there
is more to that story.
Since the court below ruled, on April 25, 2023, as
pointed out by Petitioners, a Sixth Circuit panel
invalidated ATF’s Rule, concluding that the statutory
term “machinegun” does not include non-mechanical
bumpstocks. See Hardin v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 65 F.4th 895 (6th Cir.
2023); see also Pet. Cert. at 5. In fact, this was
actually the second time a Sixth Circuit panel reversed
the ATF. An earlier Sixth Circuit panel had also
rejected the Rule in a case brought by three of these
amici — Gun Owners of America, Gun Owners
Foundation, and Virginia Citizens Defense League.
The earlier challenge was brought to the Rule in
the Western District of Michigan. The district court
concluded that, although Congress had not explicitly
declared whether bump stock-equipped weapons were
machineguns, applying Chevron deference, ATF’s
definition was permissible. Gun Owners of Am. v.
Barr, 363 F. Supp. 3d 823, 831-832 (W.D. Mich. 2019).
On appeal, however, a divided Sixth Circuit panel
reversed in an opinion written by Judge Batchelder.
Citing this Court’s decision in United States v. Apel,
571 U.S. 359, 369 (2014), the panel observed that “we
have never held that the Government’s reading of a
criminal statute is entitled to any deference,” and
“Chevron deference categorically does not apply to the
judicial interpretation of statutes that criminalize
conduct, i.e., that impose criminal penalties.” Chevron
22
deference should not apply in the criminal context
because criminal laws are not based so much in
“agency expertise” as in “the moral condemnation of
the community.” Gun Owners of Am., Inc. v. Garland,
992 F.3d 446, 454-55, 462 (6th Cir. 2021) (vacated en
banc in Gun Owners of Am., Inc. v. Garland, 19 F.4th
890 (6th Cir. 2021). Thus, the panel concluded:
for criminal statutes, where the primary
question is what conduct should be condemned
and punished, the first rationale of Chevron
deference — deferring to an agency’s expertise
— is unconvincing because the agency's
technical specialized knowledge does not assist
in making the value-laden judgment
underlying our criminal laws. That judgment
is reserved to the people through their duly
elected representatives in Congress. [Id. at
463.]
The panel further explained that Chevron
deference in the criminal context would violate the
Constitution’s separation of powers. “[G]iving one
branch the power to both draft and enforce criminal
statutes jeopardizes the people’s right to liberty,” the
court noted. Id. at 465.
On June 25, 2021, the Sixth Circuit granted en
banc review and heard oral argument on October 20,
2021, after which the court split evenly 8 to 8, thereby
affirming the district court opinion by default. See
23
Gun Owners of Am., Inc. v. Garland, 19 F.4th 890 (6th
Cir. 2021).15
V. COURTS MAY NOT INTERPRET STATUTES
BASED ON MARKETING MATERIALS OR
REWRITE STATUTES TO BETTER
I M P L E M E N T
P E R C E I V E D
CONGRESSIONAL CONCERNS.
A. Marketing Materials.
To bolster ATF’s regulatory revisions to the
statutory text, the D.C. Circuit quoted from bumpstock
sales brochures, including one manufacturer that
referred to a bumpstock-equipped rifle as “a legal
method of ‘full-auto firing,’” and a device which allows
the shooter “‘to recreate the feeling of automatic
firing.’” Guedes IV at 306, 318. Another stated that its
device would allow for “‘[s]praying 900 rounds in 60
seconds.’” Id. at 322. None of these statements
establish whether a bumpstock is a machinegun under
the statute. This is not a consumer fraud case where
the courts attempt to divine whether a product meets
the self-serving promotional claims of its
manufacturer. Rather, it is purely a question of
statutory interpretation, and marketing materials are
neither an accepted nor permissible way to interpret
statutory text.
15
Concurring opinions were filed by Judges White (joined by
Judges Moore, Cole, Clay, and Stranch) and Gibbons (joined by
Moore, Cole, White, and Stranch), while a dissenting opinion was
filed by Judge Murphy (joined by Chief Judge Sutton and Judges
Batchelder, Kethledge, Thapar, Bush, Larsen, and Nalbandian.)
24
B. Perceived Congressional Concern.
In finding ATF’s new interpretation of
“machinegun” to be the “best” possible interpretation,
the D.C. Circuit interpreted “machinegun” as viewed
through the lens of congressional concern about
lethality and rate of fire:
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. [Guedes IV at 316
(emphasis added).]
From this, the court concluded: “It is therefore
consistent with congressional purpose to define ‘single
function’ [of the trigger] with a focus on the weapon’s
ease of use.” Guedes IV at 316. The court seemed to
believe that ATF’s substitution of “single pull” for
Congress’ test “single function,” better served
congressional “concerns” than the term that Congress
had chosen.
Yet all firearms are potentially destructive and
lethal. If Congress had wanted to make rate of fire the
test for what qualifies as a machine gun, it certainly
could have done so. Having not done so, what rate of
fire is to be permitted? Although today 180 bullets per
minute might seem fine, why could a future court not
conclude that this allows too much “destructive
25
potential,” “exacerbation of serious crime,” or
“heightened capacity for lethality”? How many rounds
per minute is too many? When the statutory definition
is abandoned in favor of a perceived “congressional
concern” test, there is no certainty to be had.
Agencies are neither free to edit statutes to fit
their own policy agendas, nor to implement some
alleged “concern” that bureaucrats divine from a
congressional enactment. Rather, “Congress alone has
the institutional competence, democratic legitimacy,
and (most importantly) constitutional authority to
revise statutes in light of new social problems and
preferences. Until it exercises that power, the people
may rely on the original meaning of the written law.”
Wisconsin Central Ltd. v. United States, 138 S. Ct.
2067, 2074 (2018). See also Utility Air Regulatory
Group v. EPA, 573 U.S. 302, 325-28 (2014) (“[a]n
agency has no power to ‘tailor’ legislation to
bureaucratic policy goals by rewriting unambiguous
statutory terms ... to suit its own sense of how the
statute should operate ... [the agency’s] need to rewrite
[the statute] should have alerted [it] that it had taken
a wrong interpretive turn.”); Christensen v. Harris
County, 529 U.S. 576, 588 (2000) (an agency may not,
“under the guise of interpreting a regulation ... create
de facto a new regulation.”); Dig. Realty Trust, Inc. v.
Somers, 138 S. Ct. 767, 782 (2018) (“[t]he statute’s
unambiguous ... definition ... precludes the [agency]
from more expansively interpreting that term.”).
26
CONCLUSION
For the foregoing reasons, the petition should be
held pending resolution of the petition for writ of
certiorari in Garland v. Cargill, No. 22-976, which
should be granted, and the Rule vacated.
Respectfully submitted,
JOHN I. HARRIS III
WILLIAM J. OLSON*
SCHULMAN, LEROY, & JEREMIAH L. MORGAN
BENNETT, P.C.
ROBERT J. OLSON
3310 West End Ave.
WILLIAM J. OLSON, P.C.
Suite 460
370 Maple Ave. W., Ste. 4
Nashville, TN 37203
Vienna, VA 22180
(703) 356-5070
RICK BOYER
wjo@mindspring.com
INTEGRITY LAW FIRM Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
July 20, 2023
KERRY L. MORGAN
PENTIUK, COUVREUR
KOBILJAK, P.C.
2915 Biddle Avenue
Wyandotte, MI 48192
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.