Amicus Curiae Brief — Merrick B. Garland, Attorney General, et al., Petitioners v. Michael Cargill

Supreme Court briefJan 23, 2024

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Nos. 22-976

In the

Supreme Court of the United States

─────────────♦─────────────

MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.,

Petitioners,

MICHAEL CARGILL,

Respondent.

─────────────♦─────────────

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

────────────♦─────────────

AMICUS CURIAE BRIEF OF THE BUCKEYE

INSTITUTE IN SUPPORT OF RESPONDENT

────────────♦─────────────

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

The Buckeye Institute

88 East Broad Street

Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

QUESTIONS PRESENTED

Federal law restricts access to machineguns. A

“machinegun” is defined 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,”

as well as a “part designed and intended solely and

exclusively * * * for use in converting a weapon into a

machinegun.” 26 U.S.C. 5845(b). A “bump stock” is a

device designed and intended to permit users to fire a

semiautomatic rifle quickly.

The question presented is whether a bump

stock is a “machinegun” as defined in 26 U.S.C.

5845(b).

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

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

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

SUMMARY OF ARGUMENT ..................................... 1

INTRODUCTION AND ARGUMENT........................ 3

Introduction ......................................................... 3

II.

The Importance of the Rule of Lenity................. 4

III. Individuals face grievous consequences from

over-criminalization caused largely by

unaccountable

agencies’

regulatory

impositions........................................................... 7

IV. The ATF’s fluid bump stock rule shows the

perilousness of criminalization via regulation

............................................................................ 13

Applying the rule of lenity is especially

important

when

fundamental

constitutional right is involved ......................... 14

CONCLUSION .......................................................... 18

iii

TABLE OF AUTHORITIES

Cases

Abramski v. United States, 573 U.S. 169 (2014) ...... 13

Bond v. United States, 564 U.S. 211 (2011) ............. 15

Buffington v. McDonough, 143 S. Ct. 14 (2022) ......... 9

C.R.S. by D.B.S. v. United States, 11 F.3d 791 (8th

Cir. 1993) .................................................................. 3

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722

(6th Cir. 2013) ................................................ 6, 7, 15

City of Arlington Tex. v. F.C.C., 569 U.S. 290

(2013) ........................................................................ 7

Crandon v. United States, 494 U.S. 152 (1990)........ 10

Crowell v. Benson, 285 U.S. 22 (1932) ...................... 15

District of Columbia v. Heller, 554 U.S. 570

(2008) ...................................................................... 16

Egan v. Delaware River Port Auth., 851 F.3d 263 (3d

Cir. 2017) .................................................................. 5

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117

(2016) ...................................................................... 13

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 140 S. Ct. 789 (2020) ........................... 14

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

(6th Cir. 2021) .................................................. 10, 15

Gun Owners of Am., Inc. v. Garland, 992 F.3d 446

(6th Cir. 2021) .......................................................... 6

Johnson v. United States, 576 U.S. 591 (2015)....... 4, 5

Lane v. United States, 612 F. Supp. 3d 659 (N.D. Tex.

2020) ....................................................................... 17

Lockhart v. United States, 577 U.S. 347 (2016) ..... 2, 7

M. Kraus & Bros., Inc. v. United States, 327 U.S. 614

(1946) ...................................................................... 10

McDonald v. City of Chi., 561 U.S. 742 (2010) ......... 16

McKeiver v. Pennsylvania, 403 U.S. 528 (1971) ......... 9

Miller v. Bonta, 542 F. Supp. 3d 1009 (S.D. Cal. 2021)

................................................................................. 16

Mod. Sportsman, LLC v. United States, 145 Fed. Cl.

575 (Fed. Cir. 2019) ................................................ 17

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967 (2005) .................................... 10

Singer v. United States, 323 U.S. 338 (1945) ........... 15

United States v. Davis, 139 S. Ct. 2319 (2019) ........... 6

United States v. George, 228 U.S. 14 (1913) ............. 15

United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992)

................................................................................. 12

United States v. Santos, 553 U.S. 507 (2008) ..... 11, 12

United States v. Sharp, 27 F.Cas. 1041 (C.C.Pa.

1815) ......................................................................... 5

United States v. Stewart, 246 F.3d 728 (D.C. Cir.

2001) ....................................................................... 12

United States v. Thompson/Center Arms Co., 504

U.S. 505 (1992) ..................................... 11, 12, 13, 17

United States v. Valdovinos, 760 F.3d 322 (4th Cir.

2014) ......................................................................... 8

West Virginia v. E.P.A., 142 S. Ct. 2587 (2022).......... 9

Whitman v. United States, 574 U.S. 1003

(2014) .................................................................. 7, 13

Statutes

26 U.S.C. 5845(b) ......................................................... 3

Other Authorities

1 Commentaries on the Laws of England (1765) ........ 4

2 Blackstone’s Commentaries 143 (St. George Tucker

ed., 1803)................................................................. 16

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012). .............. 14

Avery Anapol, Gun Company Sues US Over Bump

Stock Ban, Claiming $20M in Losses, The Hill

(Apr. 9, 2019), https://thehill.com/regulation/courtbattles/438066-gun-company-sues-us-over-bumpstock-ban-claiming-20-million-in ........................... 17

Br. of Amici Curiae U.S. Senators Sheldon

Whitehouse, Mazie Hirono, Dianne Feinstein, &

Elizabeth Warren in Support of Respondents,

Loper Bright Enterprises v. Raimondo, Sec. of

Comm., No. 22-451 ................................................... 5

Charles G. Koch & Mark V. Holden, The

Overcriminalizaton of America, Politico Magazine

(Jan. 7, 2015),

https://www.politico.com/magazine/story/2015/01/ov

ercriminalization-of-america-113991/. .................... 8

James R. Copland & Rafael Mangual,

Overcriminalizing America, Manhattan Inst. for

Pol’y Rsch., Inc.,

https://manhattan.institute/article/overcriminalizin

g-america-an-overview-and-model-legislation-forstates ..................................................................... 8, 9

Overcriminalization, The Heritage Found.,

https://heritage.org/crime-and-justice/heritageexplains/overcriminalization ................................... 8

Paul J. Larkin, Jr, Public Choice Theory and

Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715

(2013) ................................................................ 7, 8, 9

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

Law, 32 J.L. & Pol. 211 (2017)................................. 6

Ronald A. Cass, Rulemaking Then and Now: From

Management to Lawmaking, 28 Geo. Mason L. Rev.

683 (2021) ................................................................. 9

The Chevron Doctrine: Constitutional and Statutory

Questions in Judicial Deference to Agencies:

Hearing before the H. Subcomm. on Regulatory

Reform, Commercial and Antitrust Law of the

Committee on the Judiciary, 114th Cong. (March

15, 2016) (Prepared Statement of the Honorable

Bob Goodlatte) .......................................................... 5

Tim Lynch, Cato Inst., Cato Handbook for

Policymakers (8th ed. 2017) ..................................... 8

Regulations

Bump-Stock Type Devices, 83 Fed. Reg. 66514 ....... 16

INTEREST OF AMICUS CURIAE 1

Amicus Curiae, The Buckeye Institute, was

founded in 1989 as an independent research and

educational institution—a think tank—to formulate

and promote free-market policy in the states. The

Buckeye Institute accomplishes the organization’s

mission by performing timely and reliable research on

key issues, compiling and synthesizing data,

formulating free-market policies, and marketing those

public policy solutions for implementation in Ohio and

replication across the country. The Buckeye Institute

assists executive and legislative branch policymakers

by providing ideas, research, and data to enable

lawmakers’ effectiveness in advocating free-market

public policy solutions. The Buckeye Institute is a nonpartisan, nonprofit, tax-exempt organization, as

defined by I.R.C. § 501(c)(3).

Through its Legal Center, The Buckeye

Institute works to restrain governmental overreach at

all levels of government. In fulfillment of that purpose,

The Buckeye Institute files lawsuits and submits

amicus briefs. As it relates to this case, The Buckeye

Institute’s Legal Center actively addresses issues

relating to administrative law, overcriminalization,

and the constitutional right to keep and bear arms.

SUMMARY OF ARGUMENT

When Congress defined the term machinegun,

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae, made any monetary contribution toward

the preparation or submission of this brief.

it did so in a straightforward, unambiguous way.

However, because of the ATF’s new interpretation of

the term “machinegun” to include bump stocks, the

courts of appeals have struggled to agree on whether

the definition is ambiguous or unambiguous, and what

is the best interpretation of the definition. If the Court

finds ambiguity in the definition, it should apply the

rule of lenity in interpreting the definition.

The rule of lenity—strictly construing a

criminal statute against the government—is a timehonored judicial doctrine. Its application to ambiguous

rules ensures that regulated parties have fair notice of

what the law requires of them. The rule is especially

important in the age of over-criminalization, largely

created through agency rule making. Indeed, there are

likely about 300,000 regulatory crimes that Congress

never enacted. Criminalizing behavior via regulation

is particularly offensive when agencies reverse

themselves—as was done here—creating a crime

when they previously said there was none. Finally, the

Court should be especially vigilant in applying the

rule of lenity when—as here—fundamental

constitutional rights are implicated.

As Justice Kagan succinctly stated, “[t]his

Court has a rule for how to resolve genuine ambiguity

in criminal statutes: in favor of the criminal

defendant.” Lockhart v. United States, 577 U.S. 347,

376 (2016) (Kagan, J., dissenting). So it should be

here.

INTRODUCTION AND ARGUMENT

Introduction.

The meaning of the term “machinegun” would

seem to be fairly straightforward to the average

person. But just to be abundantly clear as to its

meaning in the criminal context, Congress defined it

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,” as well as a “part designed and

intended solely and exclusively . . . for use in

converting a weapon into a machinegun . . . .” 26

U.S.C. 5845(b). That seems hard to confuse. Yet leave

it to bureaucrats and lawyers to find “ambiguity where

none exists,” C.R.S. by D.B.S. v. United States, 11 F.3d

791, 803 (8th Cir. 1993), and where no one else can

find it. But when they do, the law should be construed

strictly against the government, not against the

citizenry who may be criminally liable.

The rule of lenity has long been employed to

protect individuals from criminal penalties where a

rule or statute does not provide fair notice that his or

her conduct is unlawful. Traditionally, it was also used

to prevent the courts from imposing punishment that

the legislature did not specify. However, given the

growing number of administrative interpretations of

ambiguous statutes, these same fair notice and

separation of powers concerns apply to the executive

branch imposing criminal punishment on conduct not

expressly criminalized by Congress.

If, after employing the traditional rules of

statutory

construction—without

giving

any

unwarranted deference—the Court is unable to

determine the meaning of “automatically” or “single

function of the trigger” in the National Firearms Act

(NFA), the Court should interpret that term utilizing

the rule of lenity.

II.

The Importance of the Rule of Lenity.

The rule of strictly construing penal statutes

against the government—“better known today as the

rule of lenity—first emerged in 16th-century England

in reaction to Parliament’s practice of making large

swaths of crimes capital offenses . . . .” Johnson v.

United States, 576 U.S. 591, 613 (2015) (Thomas, J.,

concurring in the judgment).

Courts relied on this rule of construction

in refusing to apply vague capital-offense

statutes to prosecutions before them. As

an example of this rule, William

Blackstone described a notable instance

in which an English statute imposing the

death penalty on anyone convicted of

“stealing sheep, or other cattle” was “held

to extend to nothing but mere sheep” as

“th[e] general words, ‘or other cattle,’

[were] looked upon as much too loose to

create a capital offence.”

Id. at 614 (Thomas, J., concurring in the judgment)

(quoting 1 Commentaries on the Laws of England 88

(1765)). Parliament responded in the proper way by

passing another statute to clarify the ambiguity. Id. at

614 n. 2 (Thomas, J., concurring in the judgment).

The rule of lenity made its way to this Nation

where “American courts—like their English

predecessors—simply refused to apply [vague laws] in

individual cases under the rule that penal statutes

should be construed strictly” against the government.

Id. at 615 (Thomas, J., concurring in the judgment)

(citing United States v. Sharp, 27 F.Cas. 1041 (C.C.Pa.

1815) (Washington, J.)). Unfortunately, Congress has

not always followed its English predecessors in fixing

ambiguity through new statutes. Instead, it often

relies on executive agencies to sort out the

ambiguity—and, it seems, it sometimes purposely

implants ambiguity so the unaccountable agencies can

do its bidding. See Br. of Amici Curiae U.S. Senators

Sheldon Whitehouse, Mazie Hirono, Dianne Feinstein,

& Elizabeth Warren in Support of Respondents at 7,

Loper Bright Enterprises v. Raimondo, Sec. of Comm.,

No. 22-451 (“Congress has long legislated against the

backdrop of Chevron deference, which allows expert

agencies . . . to implement [ambiguous] statutes

passed by Congress.”).

Agency

unaccountability

and

“Chevron

deference ‘tempt[ ] Congress to let the hardest work of

legislating bleed out of Congress and into the

Executive Branch, since Congress knows judges will

defer to agency interpretations of ambiguities and

gaps in statutes Congress did not truly finish.’” Egan

v. Delaware River Port Auth., 851 F.3d 263, 279 (3d

Cir. 2017) (quoting The Chevron Doctrine:

Constitutional and Statutory Questions in Judicial

Deference to Agencies: Hearing before the H. Subcomm.

on Regulatory Reform, Commercial and Antitrust Law

of the Committee on the Judiciary, 114th Cong. (March

15, 2016) (Prepared Statement of the Honorable Bob

Goodlatte)). However, the rule of lenity prevents

Congress from passing an ambiguous criminal statute

in the hopes that the unaccountable agencies will read

it broadly.

“Each branch’s role and responsibility with

regard to criminal statutes is clear. First, ‘[o]nly the

people’s elected representatives in the legislature are

authorized to make an act a crime.’” Gun Owners of

Am., Inc. v. Garland, 992 F.3d 446, 464 (6th Cir. 2021)

(quotation marks omitted) (quoting United States v.

Davis, 139 S. Ct. 2319, 2325 (2019)), reh’g en banc

granted, opinion vacated, 2 F.4th 576 (6th Cir. 2021),

and on reh’g en banc, 19 F.4th 890 (6th Cir. 2021).

Making something a crime is serious

business.

visits

the

moral

condemnation of the community upon

the citizen who engages in the forbidden

conduct, and it allows the government to

take away his liberty and property. The

rule of lenity carries into effect the

principle that only the legislature, the

most democratic and accountable branch

of government, should decide what

conduct triggers these consequences.

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731

(6th Cir. 2013) (Sutton, J., concurring). See, e.g., Paul

J. Larkin, Jr., Chevron and Federal Criminal Law, 32

J.L. & Pol. 211, 235 (2017) (“The criminal law reflects

underlying moral judgments that it is the

responsibility of the people to make in a democracy.

Agencies lack expertise in making these moral

judgments; their skills lie elsewhere.”). If “unelected

commissioners and directors and administrators [are

given] carte blanche to decide when an ambiguous

statute justifies sending people to prison,” then this

ideal of democratic accountability diminishes. Carter,

736 F.3d at 731 (Sutton, J., concurring). The rule of

lenity, “the most venerable and venerated of

interpretive principles,” id. (Sutton, J., concurring),

upholds this ideal.

Congress cannot skirt its responsibility by

conferring its legislative authority to enact criminal

laws to agencies via ambiguous statutes. The rule of

lenity “vindicates the principle that only the

legislature may define crimes and fix punishments.

Congress cannot, through ambiguity, effectively leave

that function to the courts—much less to the

administrative bureaucracy.” Whitman v. United

States, 574 U.S. 1003, 1003 (2014) (statement of Scalia

& Thomas, JJ., respecting the denial of certiorari). To

the contrary, “[t]his Court has a rule for how to resolve

genuine ambiguity in criminal statutes: in favor of the

criminal defendant.” Lockhart, 577 U.S. at 376

(Kagan, J., dissenting).

III. Individuals face grievous consequences

from over-criminalization caused largely by

unaccountable

agencies’

regulatory

impositions.

In City of Arlington Tex. v. F.C.C., Chief Justice

Roberts observed that the “Framers could hardly have

envisioned today’s ‘vast and varied federal

bureaucracy’ and the authority administrative

agencies now hold over our economic, social, and

political activities.” 569 U.S. 290, 320 (2013) (Roberts,

C.J., dissenting). “This problem did not always exist.

The Framers were concerned that a voluminous

criminal code was a threat to liberty . . . .” Paul J.

Larkin,

Jr,

Public

Choice

Theory

and

Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715,

725 (2013). “There are so many federal criminal laws

that no one, including the Justice Department, the

principal federal law enforcement agency, knows the

actual number of crimes.” Id. at 726.

Organizations of many stripes and philosophies

agree that over-criminalization is a serious problem in

America today.

In February of [2014], the U.S. House of

Representatives renewed the bipartisan

task force it created to review the federal

criminal code and the trend toward

“over-criminalization;” groups who have

testified in support of reform include the

American Bar Association, the Heritage

Foundation, and . . . the Judicial

Conference of the United States and the

Sentencing Commission.

United States v. Valdovinos, 760 F.3d 322, 339 (4th

Cir. 2014) (Davis, J., dissenting). 2 And criminalization

via regulation is one of the phenomenon’s “core

2 See also, e.g., Tim Lynch, Cato Inst., Cato Handbook for

Policymakers 193–199 (8th ed. 2017); Overcriminalization, The

Heritage Found., https://heritage.org/crime-and-justice/heritageexplains/overcriminalization (last visited Jan. 9, 2024); James

R. Copland & Rafael Mangual, Overcriminalizing America,

Manhattan Inst. for Pol’y Rsch., Inc.,

https://manhattan.institute/article/overcriminalizing-americaan-overview-and-model-legislation-for-states (last visited Jan. 9,

2024); Charles G. Koch & Mark V. Holden, The

Overcriminalizaton of America, Politico Magazine (Jan. 7,

2015),

https://www.politico.com/magazine/story/2015/01/overcriminaliz

ation-of-america-113991/.

drivers.”

The number of “laws” imposed through

regulatory rulemaking has increased exponentially.

The growth of over-criminalization “has been

particularly immense with regard to the twentieth

century pursuit of ‘regulatory crimes,’ also known as

malum prohibitum crimes . . . .” Larkin, Public Choice

Theory and Overcriminalization, supra, at 728. The

sheer amount of federal criminal regulations is

impossible to follow. “If regulations enforceable in

criminal prosecutions are included, the number of

potentially relevant federal laws could exceed

300,000,” id. at 729, far in excess of the already

massive “3,300 congressionally enacted federal

criminal statutes,” id. at 728. Indeed, by one account,

the Code of Federal Regulations now spans more than

180,000 pages. Buffington v. McDonough, 143 S. Ct.

14, 20 (2022) (Gorsuch, J., dissenting from denial of

cert.). Each year, the agencies add between “three

thousand to five thousand final rules.” West Virginia

v. E.P.A., 142 S. Ct. 2587, 2619 n. 2 (2022) (Gorsuch,

J., concurring) (quoting Ronald A. Cass, Rulemaking

Then and Now: From Management to Lawmaking, 28

Geo. Mason L. Rev. 683, 694 (2021)). Nearly “98

percent of the more than 300,000 crimes on America’s

books were never voted on by Congress.” Copland &

Mangual, supra.

Over-criminalization

through

agency

rulemaking exponentially increases the risk that

citizens will be subject to the “serious deprivations of

liberty” that flow from “the consequences of criminal

guilt,” McKeiver v. Pennsylvania, 403 U.S. 528, 551

(1971) (White, J., concurring)—and it does so without

the ordinary checks the separation of powers and

political accountability provide. Where the stakes are

so high for so many, it is urgent to resolve when courts

should resolve ambiguity in favor of lenity against

ever-expanding criminalization through regulation.

Further, criminalization through regulation at

the whim of everchanging agency determinations

“turn[s] the normal construction of

criminal statutes upside-down, replacing

the doctrine of lenity with a doctrine of

severity.” Crandon v. United States, 494

U.S. 152, 178 (1990) (Scalia, J.,

concurring in the judgment). . . . [I]t

would allow an agency to depart from its

longstanding interpretation of a criminal

law merely for policy reasons associated

with

change

presidential

administrations and merely by going

through

the

notice-and-comment

process. See Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S.

967, 981–82 (2005). Such a policy-laden

expansion of the scope of prohibited

conduct has no place in this criminal

sphere. “[A] criminal conviction ought

not to rest upon an interpretation

reached by the use of policy judgments

rather than by the inexorable command

of relevant language.” M. Kraus & Bros.,

Inc. v. United States, 327 U.S. 614, 626

(1946).

Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 923

(6th Cir. 2021) (en banc) (Murphy, J., dissenting)

(citations cleaned up).

The Court has recognized as much when it

previously addressed the National Firearms Act. In

Thompson/Center Arms Co., after employing the

traditional tools of statutory interpretation—notably

not giving deference to the ATF—the Court

determined that it was

left with an ambiguous statute. The key

to resolving the ambiguity lies in

recognizing that although it is a tax

statute that we construe now in a civil

setting,

the

NFA

has

criminal

applications that carry no additional

requirement of willfulness. Making a

[machinegun] without approval may be

subject to criminal sanction, as is

possession of an unregistered firearm

and failure to pay the tax on one, 26

U.S.C.A. §§ 5861, 5871. It is proper,

therefore, to apply the rule of lenity and

resolve

the

ambiguity

Thompson/Center’s favor.

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

505, 517–18 (1992) (citations omitted). See also id. at

519 (Scalia, J., concurring in the judgment) (“[T]he

application of the National Firearms Act . . . is

sufficiently ambiguous to trigger the rule of lenity.”).

The Court rejected the idea that it is “inappropriate”

to apply the rule of lenity “in a civil setting, rather

than a criminal prosecution.” Id. at 518, n.10 (cleaned

up). “If anything, the rule of lenity is an additional

reason to remain consistent, lest those subject to the

criminal law be misled.” United States v. Santos, 553

U.S. 507, 523 (2008). See United States v. Harris, 959

F.2d 246, 258 (D.C. Cir. 1992) (Per curiam opinion,

joined by Ginsburg and Thomas, JJ.) (recognizing the

rule of lenity applies to NFA contexts), abrogated on

other grounds by United States v. Stewart, 246 F.3d

728 (D.C. Cir. 2001).

Thompson/Center Arms Co. makes clear that,

because of the criminal nature of the NFA, the rule of

lenity applies to all NFA interpretations should any

unresolved ambiguity arise. Given that the Court

must once again address the NFA, and the criminal

implications of the ATF’s bump stock rule are far

greater than those in Thompson/Center Arms Co., if

there is an unresolved ambiguity, the Court should

once again turn to the rule of lenity.

In Thompson/Center Arms Co., the question

was whether selling a parts kit that could be used to

turn a pistol into a short-barreled rifle regulated by

the NFA constituted “making” an NFA firearm, or

whether assembly was needed. Once an individual put

the parts kit together in an unintended fashion, the

individual would likely be subject to the NFA as he

“made” a short-barreled rifle. But, the Court could not

determine whether the NFA term “making” included

packaging parts together. Thus, applying the rule of

lenity, the Court found that simply selling the kits did

not fall under the NFA.

Here, on the other hand, the regulation affects

the manufacturing, selling, and most importantly,

possession of bump stocks by manufacturers,

retailers, and individuals. Instead of just affecting one

manufacturer’s selling of a parts kit, the bump stock

regulation affects a wide swath of regulated persons.

Those individuals who are unaware of the ATF’s bump

stock regulation, or the Court’s decision if it chooses to

uphold the regulation, face life altering criminal

consequences from an agency regulation. If lenity

applied in Thompson/Center Arms Co., then it

certainly applies here.

IV. The ATF’s fluid bump stock rule shows the

perilousness

criminalization

via

regulation.

Where an agency changes direction, it must

take into account whether its “prior policy has

engendered serious reliance interests.” Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126

(2016) (citation omitted). Allowing agencies the

freedom to broadly interpret “statutory provisions to

which criminal prohibitions are attached, federal

administrators can in effect create (and uncreate) new

crimes at will, so long as they do not roam beyond

ambiguities that the laws contain.” Whitman, 135 S.

Ct. at 353 (statement of Scalia & Thomas, JJ.,

respecting the denial of certiorari). And finding in

favor of the government’s interpretation of an

ambiguous criminal statute, simply because the

government posits the interpretation, “is especially

contrary to sound practice” given “that the

Government itself rejected [this interpretation] for

years.” Abramski v. United States, 573 U.S. 169, 203

(2014) (Scalia, J., with whom Roberts, C.J., Thomas &

Alito, JJ., join, dissenting).

The ATF has done here exactly what the Court

has warned against: After taking the position for years

that possession of a bump stock was legal, it then

changed course and decided that as of March 26, 2019

possession of a—lawfully acquired—bump stock is

illegal. As Justice Gorsuch highlighted when

discussing a prior case addressing the same ATF rule,

the problem is that “[t]he law hasn’t changed, only an

agency’s interpretation of it.” Guedes v. Bureau of

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

789, 790–91 (2020) (statement of Gorsuch, J.,

respecting denial of certiorari). This ability to shift

positions at will illustrates the perils of an

unconstrained executive branch and also creates

grave fair warning concerns.

Applying the rule of lenity is especially

important

when

fundamental

constitutional right is involved.

Individuals should “conform their conduct to

the fairest reading of the law they might expect from

a neutral judge.” Id. (statement of Gorsuch, J.,

respecting denial of certiorari). They should not be

required to guess whether an agency’s first

interpretation will be deemed reasonable and guess

whether the new—often opposite—position will be,

too. Requiring individuals to guess whether an

agency’s interpretation will be upheld is especially

chilling when the agency’s interpretation places new

limits on fundamental rights.

One of the tenets of our system of government

is that “statutes ought not to tread on questionable

constitutional grounds unless they do so clearly.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 249 (2012). The Court has

accordingly long recognized that courts should

construe statutes to avoid interpretations—even

reasonable ones—that raise serious constitutional

concerns. Crowell v. Benson, 285 U.S. 22, 62 (1932). In

the ordinary case, the “clear statement” rule suggests

that if a statute is ambiguous whether it implicates a

fundamental constitutional right, then reviewing

courts should err on the side of liberty. This ideal

further justifies the rule of lenity.

The clear-statement rule is “not a judicial

sport.” Singer v. United States, 323 U.S.

338, 350 (1945) (Frankfurter, J.,

dissenting). It reinforces a fundamental

separation-of-powers principle. Carter,

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

The Constitution allows only Congress to

create crimes. See United States v.

George, 228 U.S. 14, 22 (1913). . . . [T]he

President cannot create administrative

crimes, George, 228 U.S. at 22. This

principle promotes liberty by barring the

government from forcing Americans to

change their behavior on threat of

imprisonment

unless

their

representatives pass a bill that survives

the arduous journey through both

Houses of Congress and their President

signs this bill into law. See Bond v.

United States, 564 U.S. 211, 222 (2011).

Gun Owners of Am., Inc., 19 F.4th at 917–18 (en banc)

(Murphy, J., dissenting) (citations cleaned up).

Here, the ATF’s rule criminalizes conduct

connected to the exercise of Second Amendment

rights. The Second Amendment’s guarantee of the

right to keep and bear arms is a “true palladium of

liberty,” and “among those fundamental rights

necessary to our system of ordered liberty.” District of

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

2 Blackstone’s Commentaries 143 (St. George Tucker

ed., 1803)). McDonald v. City of Chi., 561 U.S. 742, 778

(2010). And bump stocks, like myriad other firearm

parts, are used for lawful purposes within the Second

Amendment’s scope, such as “home defense, militia

use, sporting competitions, hunting, [and] target

practice.” Miller v. Bonta, 542 F. Supp. 3d 1009, 1061

(S.D. Cal. 2021), vacated and remanded on other

grounds, No. 21-55608, 2022 WL 3095986 (9th Cir.

Aug. 1, 2022). ATF’s reading of the NFA to place bump

stocks under its purview adds enormous regulations—

with life altering criminal consequences—to a

protected firearm. The rule does not account for this

protected status. By its terms, all owners of previously

lawful bump stocks must have turned them over or

destroyed them by March 26, 2019.

The validity of the ATF’s bump stock rule also

directly affects the lives and property interests of as

many as half a million individuals who purchased

previously lawful bump stocks. In reliance on ATF’s

prior interpretations of the statutory definition of

“machinegun,” Americans across the country legally

purchased an estimated 280,000–520,000 bump stocks

at a total cost of between $59,000,000 and

$102,000,000. See Bump-Stock Type Devices, 83 Fed.

Reg. 66514, 66547. The agency’s new rule requires

these Americans to either surrender or destroy their

devices on pain of serious fines and imprisonment.

Indeed, one bump stock manufacturer reportedly was

forced to destroy over $20,000,000 worth of inventory

as well as stop manufacturing more. 3

While some states have criminalized bump

stock ownership through statutes, in states where

ownership remains legal, individuals have a property

interest in their bump stocks. The ATF’s bump stock

rule requires dispossession of that property interest

and criminalizes it to the tune of up to $10,000 and

ten-years imprisonment, “which may be imposed

without proof of willfulness or knowledge.”

Thompson/Center Arms Co., 504 U.S. at 508. This

raises serious Fifth Amendment takings questions.

Lane v. United States, 612 F. Supp. 3d 659, 660 (N.D.

Tex. 2020). The Takings Clause “protects individuals

who have an investment-backed expectation in private

property” that the government physically or through

regulation takes and applies to public use/benefit. Id.

at 663 (citing Horne v. Dep’t of Agric., 576 U.S. 350

(2015)). Bump stock owners’ expectation that they

could legally own bump stocks is especially strong

here where their state governments have granted a

property interest in the bump stocks, and—until

recently—the ATF sanctioned their possession.

Applying the rule of lenity will prevent these

unconstitutional takings.

The Court should not allow the owners of

280,000–520,000 bump stocks to face such a penalty

because of an administrative interpretation of an

ambiguous statute. Only the democratically elected,

3 See Mod. Sportsman, LLC v. United States, 145 Fed. Cl. 575, 576

(Fed. Cir. 2019); Avery Anapol, Gun Company Sues US Over Bump

Stock Ban, Claiming $20M in Losses, The Hill (Apr. 9, 2019),

https://thehill.com/regulation/court-battles/438066-gun-companysues-us-over-bump-stock-ban-claiming-20-million-in.

and accountable, officials in Congress can make such

a decision.

CONCLUSION

For the reasons stated in this amicus brief, if

the Court is unable to determine the meaning of

“automatic” or “single function of the trigger”—

without any deference—then the Court should apply

the rule of lenity. Thus, the Court should affirm the

decision of the United States Court of Appeals for the

Fifth Circuit, holding the ATF’s bump stock rule

invalid.

Respectfully submitted,