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

Supreme Court briefJan 26, 2024

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No. 22-976

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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

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE UNITED STATES

SENATORS CYNTHIA LUMMIS, MIKE LEE, ET AL.,

PROFESSORS OF SECOND AMENDMENT LAW,

AND THE INDEPENDENCE INSTITUTE IN

SUPPORT OF RESPONDENT AND AFFIRMANCE

---------------------------------♦--------------------------------CHRIS LAND

OFFICE OF U.S.

SEN. CYNTHIA M. LUMMIS

127A Russell Senate Office Building

Washington, D.C. 20510

(202) 224-3424

Chris_Land@lummis.senate.gov

Counsel for Amici Curiae

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, Colorado 80203

(303) 279-6536

david@i2i.org

Counsel of Record

GEORGE A. MOCSARY

Professor of Law

UNIVERSITY OF WYOMING

COLLEGE OF LAW

1000 East University Ave., Dept. 3035

Laramie, Wyoming 82071

(307) 766-5262

gmocsary@uwyo.edu

January 26, 2024

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

Interests of Amici Curiae ....................................

Summary of Argument ........................................

Argument .............................................................

Chevron’s unlawful delegation and the resulting instability are harmful for criminal law .......................................................

A. Separation of powers is especially important in criminal law, and Chevron

permits unlawful delegation ...............

B. Chevron fosters agency reversals ........ 16

II.

Petitioners and amici have not come to

terms with the text of the NFA ................. 20

III.

Clear drafting of criminal statutes is essential ........................................................ 28

A. The “reasonable doubt” standard of

the rule of lenity is constitutionally

appropriate .......................................... 28

B. Rules of interpretation should encourage, not discourage, clear definitions

in criminal statutes ............................. 32

Conclusion............................................................ 36

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES

Abramski v. United States, 573 U.S. 169 (2014) ........11

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) .................12

Buffington v. McDonald, 143 S. Ct. 14 (2022) .... 2, 5, 17

Chevron v. Natural Resources Defense Council,

467 U.S. 837 (1984) .............................7-14, 16-20, 34

Dixon v. United States, 548 U.S. 1 (2006)...................32

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........34

Harrison v. Vose, 50 U.S. (9 How.) 372 (1850) ............31

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

(1974) ................................................................. 28, 29

Liparota v. United States, 471 U.S. 419 (1985) ..........32

Loper Bright v. Raimondo, No. 22-451 (2023) .... 8, 9, 12

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) .........................................................................9

Moskal v. United States, 498 U.S. 103 (1990) ............28

Randall v. Sorrell, 548 U.S. 230 (2006) ......................18

Relentless, Inc., et al. v. Dept. of Commerce, et al.,

No. 22-1219 (2023) .............................................. 8, 12

Touby v. United States, 500 U.S. 160 (1990)......... 14, 15

United States v. Apel, 571 U.S. 359 (2014) .................11

United States v. Davis, 139 S. Ct. 2319 (2019).............9

United States v. Hudson & Goodwin, 11 U.S. (7

Cranch) 32 (1812) ....................................................33

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. O’Hagan, 521 U.S. 642 (1997) ..........12

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

U.S. 505 (1992) .................................................. 29, 30

United States v. Wiltberger, 18 U.S. 76 (1820) ...........31

Whalen v. United States, 445 U.S. 684 (1980) ............33

Whitman v. United States, 574 U.S. 1003 (2014) .......11

Wooden v. United States, 142 S. Ct. 1063 (2022).....28, 29, 34

OTHER CASES

The Adventure, 1 F. Cas. 202 (C.C. Va. 1812) (No.

93) ............................................................................30

Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020) ........10

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

2021) ........................................................................16

Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023)... 10, 19, 29

The Enterprise, 8 F. Cas. 732 (C.C.D.N.Y. 1810)

(No. 4,499) ......................................................... 31-32

Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020)..... 33-34

Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019) ... 10, 14, 34

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

(6th Cir. 2021).................................................... 11, 14

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th

Cir. 2016) .................................................................11

Humanitarian Law Project v. Reno, 205 F.3d

1130 (9th Cir. 2000) .................................................34

TABLE OF AUTHORITIES—Continued

Page

Okla. Oil & Gas Ass’n v. Thompson, 414 P.3d 345

(Okla. 2018) .............................................................18

United States v. Alkazahg, 81 M.J. 764 (N-M. Ct.

Crim. App. 2021) ............................................... 11, 12

United States v. Mann, 26 F. Cas. 1153 (C.C. N.H.

1812) (No. 15,718) ...................................................31

CONSTITUTION AND STATUTES

U.S. Const., art. I, §1 ...................................................19

U.S. Const., art. I, §3 ...................................................13

U.S. Const., art. I, §6 ...................................................13

U.S. Const., art. I, §7 ...................................................19

U.S. Const., art. I, §8 ............................................. 13, 33

U.S. Const., art. I, §9 ...................................................13

U.S. Const., art. I, §10 .................................................13

U.S. Const., art. III, §3 ................................................14

U.S. Const., amend. I ..................................................14

U.S. Const., amend. II .................................... 2-6, 14, 32

U.S. Const., amend. V .................................................14

U.S. Const., amend. VI ................................................14

U.S. Const., amend. XIV, §1 ........................................14

U.S. Const., amend. XVIII, §2 .....................................14

U.S. Const., amend. XXI, §2 ........................................14

18 U.S.C. §921 .............................................................13

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. §922 .............................................................13

21 U.S.C. §811 .............................................................15

26 U.S.C. §5845 ......................................... 13, 26, 27, 29

BOOKS AND ARTICLES

1 William Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND (1765) .........................................30

1 George M. Chinn, THE MACHINE GUN: HISTORY,

EVOLUTION, AND DEVELOPMENT OF MANUAL,

AUTOMATIC, AND AIRBORNE REPEATING WEAPONS (Bureau of Ordnance, Dept. of the Navy

1951) .................................................................. 21, 25

Elmer Davis, HISTORY OF THE NEW YORK TIMES

(1921) .......................................................................22

The Federalist 47 ........................................................19

The Federalist 62 ........................................................20

Stephen Halbrook, FIREARMS LAW DESKBOOK

(2023 ed.) .................................................................24

2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF

THE CROWN (1736)....................................................30

Brett Kavanaugh, Fixing Statutory Interpretation, Judging Statutes, 129 Harv. L. Rev. 2118

(2016) .......................................................................17

Julia Keller, MR. GATLING’S TERRIBLE MARVEL

(2008) .......................................................................22

Robert C. Kennedy, How to Escape the Draft,

N.Y. Times, “On this Day, Aug. 1, 1863”..................22

TABLE OF AUTHORITIES—Continued

Page

Richard J. Pierce, Jr., The Combination of Chevron and Political Polarity Has Awful Effects,

70 Duke L.J. Online 91 (2021) ................................18

Harvey A. Silverglate & Monica R. Shah, The

Degradation of the “Void for Vagueness” Doctrine: Reversing Convictions While Saving the

Unfathomable “Honest Services Fraud” Statute, 2010 Cato Sup. Ct. Rev. 201 .............................33

Paul Wahl & Don Toppel, THE GATLING GUN (2d

printing 1971)..........................................................22

Lewis Winant, FIREARMS CURIOSA (2009) (1st

pub. 1954) ................................................................25

OTHER MATERIALS

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

(2018) .........................................................................9

GianCarlo Canaparo, Patrick McLaughlin, Jonathan Nelson, & Liya Palagashvili, Count the

Code: Quantifying Federalization of Criminal

Statutes, Heritage Foundation (Jan. 7, 2022) ........33

Dep’t of Justice, ATF Ruling 2004-5 .................... 23, 24

Dep’t of Justice, ATF Firearms Technology

Branch, determinations of Oct. 13, 2006; June

7, 2010; July 9, 2012; July 13, 2012; Feb. 11,

2013; May 1, 2013; Jan. 14, 2014; July 31,

2014; June 29, 2015; Apr. 6, 2017 ..................... 16, 17

Dep’t of the Treasury, Revenue Ruling 1955523 .......................................................................23

vii

TABLE OF AUTHORITIES—Continued

Page

Feinstein Statement on Regulation to Ban Bump

Stocks, S. Comm. on the Judiciary, Press Release (Mar. 23, 2018) ...............................................27

H.R. 396, 118th Cong., 1st Sess. (2023) .....................32

Loper Bright Ent. v. Raimondo, No. 22-451, Brief

of Senator Ted Cruz, Congressman Mike Johnson and Senator Cynthia M. Lummis et al. as

Amici Curiae in Support of Petitioners (2023) .........9

Patent No. 36,836 (Nov. 4, 1862) (“Improvement

in Revolving Battery-Guns”) ..................................21

Patent No. 502,185 (July 25, 1893) (electric Gatling gun) ..................................................................24

S. 1909, 118th Cong., 1st Sess. (2023) ........................32

S. 1916, 115th Cong., 2d Sess. (2018) .........................32

INTERESTS OF AMICI CURIAE

Amici United States Senators have a strong interest in preserving our constitutional framework of separated powers.1 They are keenly interested in ensuring

Congress articulates its statutory enactments in a

clear and constitutional manner. Amici urge this Court

to adopt statutory interpretation methodologies that

affirm the apposite roles of both Congress and this

Court and take into account the realities of the legislative process.

Amici have introduced or co-sponsored legislation

relating to firearms. They also serve on committees

with jurisdiction over firearms, including the Senate

Committee on the Judiciary.

Amici Senators are:

Sen. Cynthia M. Lummis (Wyoming)

Sen. Mike Lee (Utah)

Sen. Kevin Cramer (North Dakota)

Sen. John Barrasso (Wyoming)

Sen. Pete Ricketts (Nebraska)

Sen. Steve Daines (Montana)

Sen. Cindy Hyde-Smith (Mississippi)

Sen. Mike Rounds (South Dakota)

Sen. Markwayne Mullin (Oklahoma).

Founded in 1985 on the eternal truths of the Declaration of Independence, the Independence Institute

is a 501(c)(3) public policy research organization based

in Denver, Colorado. The briefs and scholarship of

No counsel for any party authored the brief in any part.

Only amici funded its preparation and submission.

Research Director David Kopel have been cited in

seven opinions of this Court, including Bruen, McDonald (under the name of lead amicus Int’l Law Enforcement Educators & Trainers Association (ILEETA)),

and Heller (same). Kopel has also been cited in over

one hundred opinions of lower courts. The Institute’s

Senior Fellow in Constitutional Studies, law professor

Robert Natelson, has been cited in a dozen opinions by

Justices of this Court.

Amici law and history professors teach or write on

the Second Amendment and on administrative law related to firearms. They are familiar with the problem

of citizens having their lawfully acquired property declared to be contraband by questionable administrative fiat.

Like the Senators, the Professors and the Independence Institute are keenly interested in upholding

our constitutional framework and ensuring that criminal statutes enacted by legislatures are clearly written and are not changeable based on the Executive

Branch’s shifting whims.

Cited by this Court in Heller and McDonald, and

oft-cited by lower federal courts and state high courts,

amici professors include authors of the first law school

textbook on firearms law, and many other books and

law review articles on the subject.

For the professors, institutional affiliations are for

identification purposes only.

Royce de R. Barondes is the James S. Rollins

Emeritus Professor of Law at the University of Missouri School of Law. Before retiring, he taught firearms

law and business law subjects. He has published articles on firearms law in the (U. Virginia) Journal of

Law & Politics, Texas Review of Law & Politics, Houston Law Review, Regent University Law Review, Idaho

Law Review, and Southern Illinois University Law

Journal. His scholarship concerning firearms law has

been cited by the Supreme Court of Pennsylvania, the

Eastern and Western Districts of Texas, and by a dissent in the Supreme Court of Iowa.

F. Lee Francis is an Assistant Professor at Mississippi College Law, where he teaches Civil Procedure and Administrative Law. He also serves as the

Director of the Center for Litigation and Alternative

Dispute Resolution. Before joining the faculty in 2023,

he served in the Army JAG Corps and as a federal

prosecutor with the U.S. Attorney’s Office (E.D.N.C.).

His research and scholarship focus on the Second

Amendment and firearms law. He is the author of

Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen, forthcoming

in the Marquette Law Review. His articles have also

appeared in the Southern University Law Review,

Southern Illinois University Law Review, and Brazilian Journal of Public Policy. His work has been cited

by the Fifth Circuit and the Eastern District of Michigan.

Nicholas J. Johnson is a Professor of Law at

Fordham University, School of Law. He is coauthor of

the first law school textbook on the Second Amendment, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers 3d ed.

2022) (with David B. Kopel, George A. Mocsary, E.

Gregory Wallace, and Donald Kilmer). The casebook

has been cited in 29 opinions, including this month by

both the majority and dissent in the Third Circuit

(Lara v. Commissioner Pennsylvania State Police), by

the Illinois Supreme Court (People v. Chairez), and

then-Judge Kavanaugh’s dissent in Heller II.

Professor Johnson is also author of Negroes and

the Gun: The Black Tradition of Arms (2014). He has

written 14 law journal articles on the right to arms,

including in Law and Contemporary Problems, Hastings Law Review, Ohio State Law Journal, and Wake

Forest Law Review. Courts citing his right to arms

scholarship include the Seventh Circuit, Eastern District of New York, and Washington Court of Appeals.

Donald E.J. Kilmer, Jr., is Professor of Constitutional Law at Lincoln Law School in San Jose, where

his courses include Second Amendment and Firearms

Law. His en banc Ninth Circuit case Nordyke v. King

was the first federal case to hold the Second Amendment incorporated against states via the Fourteenth

Amendment. Having litigated many arms law cases, he

brings a practitioners’ perspective to the coauthored

textbook Nicholas J. Johnson, David B. Kopel, George

A. Mocsary, E. Gregory Wallace, & Donald E. Kilmer,

Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers 3d ed. 2022).

Joyce Malcolm is emerita Professor of Law at

George Mason University, Antonin Scalia Law School.

Previously she was the Patrick Henry Professor of

Constitutional Law and the Second Amendment. She

is also a council member of the National Endowment

for the Humanities.

Professor Malcolm is author of nine books on British and American history, most notably To Keep and

Bear Arms: The Origins of an Anglo-American Right

(Harvard Univ. Pr. 1994).

Her work was cited by the majority opinions in

District of Columbia v. Heller and McDonald v. Chicago, and by Justice Thomas’s concurrence in Printz v.

United States. She has also been cited in 51 cases in

lower courts, including by then-Judge Barrett’s dissent

in Kantar v. Barr.

Joseph V. Muha is Adjunct Professor of Law at

the University of Akron, where he has taught health

care law and currently teaches arms law. He has written about arms law in the Western Michigan University

Cooley Journal of Practical and Clinical Law.

Joseph E. Olson is emeritus Professor of Law at

Mitchell Hamline School of Law, where he taught Second Amendment, business law, and tax law.

His scholarship on the right to arms was cited by

District of Columbia v. Heller, and in a dozen lower

court cases, including the Ninth Circuit, and the Supreme Courts of Connecticut and Washington.

Professor Olson has written 8 articles on the right

to arms, including in the Stanford Law and Policy Review, Georgetown Journal of Law & Public Policy, and

University of Michigan Journal of Law Reform.

David A. Raney is Professor of History and holds

the John Anthony Halter Chair in American History,

the Constitution, and the Second Amendment at Hillsdale College. He specializes in teaching American history, including the right to arms.

Glenn H. Reynolds is the Beauchamp Brogan

Distinguished Professor of Law at the University of

Tennessee College of Law, where he teaches constitutional law and technology law.

The Seventh Circuit cited his scholarship as a

model of “originalist interpretive method as applied to

the Second Amendment.” Ezell v. City of Chicago, 651

F.3d 684, 699 n.11 (7th Cir. 2011). The writings of

Professors Kopel and Mocsary were likewise cited as

originalist models.

Professor Reynolds’ right to arms scholarship has

also been cited by 7 Circuit Courts of Appeals, 20 U.S.

District Courts, the Supreme Courts of Kentucky and

Oregon, and the Illinois and New Jersey intermediate

appellate courts.

His 16 law journal articles on the right to arms

have been published, inter alia, in the Columbia Law

Review, Northwestern University Law Review, Texas

Law Review, University of Pennsylvania Law Review,

and Virginia Law Review.

E. Gregory Wallace is Professor of Law at the

Norman Adrian Wiggins School of Law at Campbell

University. He is also a member of the North Carolina

State Advisory Committee to the U.S. Commission on

Civil Rights.

Professor Wallace is a coauthor of the Johnson et

al. Firearms Law textbook described above. His articles on arms law have appeared in the Tennessee Law

Review and Southern Illinois University Law Journal.

They have been cited in the Seventh Circuit and two

U.S. District Court cases.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This Court should hold Chevron deference inapplicable to the interpretation of criminal statutes,

including the National Firearms Act’s definition of

“machinegun” at issue in this case. Granting deference

to an agency’s interpretation of a statute when the

agency has both formulated the interpretation and is

responsible for bringing criminal prosecutions under

its interpretation raises especially serious separation

of powers and due process concerns.

As this case evinces, Chevron can often result in

wild swings in policy as new Presidents take office. Interpretation of criminal statutes is poorly suited to

agency reversals of the type that Chevron enables.

Regarding the particular text of the National Firearms Act (NFA), some of the arguments in support of

Petitioners urge interpreting the NFA as if Congress

had chosen different words than the words Congress

actually did choose.

Because penal sanctions deprive citizens of life,

liberty and property, criminal statutes are subject to

higher substantive and procedural protections under

the Constitution. This Court should apply the rule of

lenity when criminal statutes are written unclearly.

The reasonable doubt standard for the rule of lenity is

the least subjective formulation of the canon and has

significant grounding in our Nation’s history and jurisprudence.

This Court safeguards the separation of powers

and democratic accountability when its precedents encourage Congress to speak clearly and precisely in enacting statutes.

---------------------------------♦---------------------------------

ARGUMENT

Chevron’s unlawful delegation and the resulting instability are harmful for criminal

law.

A. The separation of powers is especially

important in criminal law, and Chevron

permits unlawful delegation.

This Court is currently considering the future of

Chevron v. Natural Resources Defense Council, 467 U.S.

837 (1984), and its progeny, in other cases. See Loper

Bright v. Raimondo, No. 22-451 (2023); Relentless, Inc.,

et al. v. Dept. of Commerce, et al., No. 22-1219 (2023).

As some amici Senators in the instant case argued in

Loper Bright, there are compelling and just reasons

for this Court to find that Chevron does not comport

with our constitutional separation of powers. Chevron

fosters an unlawful delegation of authority from Congress and the Judiciary to the Executive Branch. Congress, not the Executive, is responsible for making

laws. See, e.g., United States v. Davis, 139 S. Ct. 2319,

2323 (2019) (“Only the people’s elected representatives

in Congress have the power to write new federal criminal laws.”). Interpreting the law is not an Executive

Branch power; Chevron contradicts “the province and

duty of the judicial department to say what the law is.”

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803); Brief Amici Curiae in Support of Petitioners of

Senators Ted Cruz, Cynthia M. Lummis, et al., in Loper

Bright Enterprises v. Raimondo, No. 22-451 (July 24,

2023).

This case exemplifies the pernicious effects of

Chevron in the criminal context, where separation of

powers and personal liberty concerns are at their apex.

The Department of Justice (DOJ) explicitly invoked Chevron as its legal authority when adopting

its final administrative rule on bump stocks in 2018

(Final Rule), proscribing possession of bump stocks

under the National Firearms Act of 1934 (NFA). See

Bump-Stock-Type Devices, 83 Fed. Reg. 66514, 66527

(2018). The Final Rule stated:

Congress thus implicitly left it to the Department to define ‘‘automatically” and ‘‘single

function of the trigger’’ in the event those

terms are ambiguous. See Chevron, 467 U.S.

at 844. Courts have appropriately recognized

that the Department has the authority to

interpret elements of the definition of ‘‘machinegun’’ like ‘‘automatically’’ and ‘‘single

function of the trigger.’’ Id.

The asserted rule stated that “the Department’s construction of those terms is reasonable under Chevron.”

Id.

The Courts of Appeals in the bump stock cases divided on the applicability of Chevron. The D.C. Circuit

agreed with the Chevron-based justification of the Final Rule; “in the criminal context, as in all contexts,

the separation of powers ‘does not prevent Congress

from seeking assistance from its coordinate Branches’

so long as Congress ‘lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.’ ” Guedes v. BATFE,

920 F.3d 1, 25 (D.C. Cir. 2019) (citations omitted). The

Tenth Circuit agreed: “Because the precedents cited

call for the application of Chevron, we now examine the

Final Rule under Chevron.” Aposhian v. Barr, 958 F.3d

969, 984 (10th Cir. 2020).

Conversely, the Fifth Circuit held that “Chevron

does not apply here because the statutory language at

issue implicates criminal penalties.” Cargill v. Garland, 57 F.4th 447, 468 (5th Cir. 2023). The Sixth Circuit agreed that this Court’s precedents “cannot be

read to support the proposition that the agency’s interpretation of a criminal statute receives Chevron

deference.” Gun Owners of Am. v. Garland, 992 F.3d

446, 457 (6th Cir. 2021). Likewise, the Navy-Marine

Corps Court of Criminal Appeals stated in a bump

stock case, “On balance, we are skeptical that when

the judiciary interprets an ambiguous criminal statute it must defer to the judgment of the same executive who is prosecuting the defendant.” United States

v. Alkazahg, 81 M.J. 764, 777 (N-M. Ct. Crim. App.

2021).

This Court’s precedents on the applicability of

Chevron to criminal statutes are mixed. According to

United States v. Apel, the Court has “never held that

the Government’s reading of a criminal statute is entitled to any deference.” 571 U.S. 359, 369 (2014); cf.

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155 (10th

Cir. 2016) (Gorsuch, J., concurring) (“The Supreme

Court has expressly instructed us not to apply Chevron

deference when an agency seeks to interpret a criminal statute.”). As this Court has declared, “criminal

laws are for the courts, not for the Government, to

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

191 (2014); cf. Whitman v. United States, 574 U.S. 1003

(2014) (Scalia, J., joined by Thomas, J., respecting denial of certiorari) (agreeing that the case was a poor

vehicle for review, but criticizing Chevron deference in

a criminal case as replacing the doctrine of lenity

“with a doctrine of severity”).

In some earlier cases, however, Chevron deference

was accorded to agency interpretations of criminal

statutes. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon deferred to a Department of Interior rule that interpreted a criminal provision of the

Endangered Species Act. 515 U.S. 687, 703 (1995) (citing Chevron). In United States v. O’Hagan, a Securities

and Exchange Commission rule that implicated criminal penalties for insider trading was granted Chevron

deference. 521 U.S. 642, 673 (1997) (“Because Congress

has authorized the Commission, in §14(e), to prescribe

legislative rules, we owe the Commission’s judgment

‘more than mere deference or weight.’ . . . [W]e must

accord the Commission’s assessment ‘controlling

weight unless [it is] arbitrary, capricious, or manifestly

contrary to the statute.’ ”) (quoting Chevron, 467 U.S.

at 844).

As the Alkazahg court summarized, “the Supreme

Court as a whole has not conclusively provided an answer to whether Chevron deference applies in criminal

cases where an ambiguous statute is defined by an

agency rule subject to notice and comment rulemaking

procedures.” 81 M.J. 764, 777 (N-M. Ct. Crim. App.

2021).

Whatever the result in Loper Bright and Relentless, this Court should accept the invitation offered by

this case to hold that Chevron has no applicability to

interpretation of a criminal statute. Because of the

high and severe stakes for the criminal defendant, judicial interpretation should be de novo.

In this case, DOJ is both the lawmaker and the law

enforcer. DOJ created the Final Rule that interpreted

the definition of “machinegun” in the NFA, 26 U.S.C.

5845(b), to include bump stocks. And DOJ exercises the

power to bring criminal prosecutions based on its own

interpretation.2 Rather than respecting the separation

of powers, Chevron has been used to consolidate powers: the Executive Branch declares what the law is, and

then brings felony prosecutions based on its declaration.

Only if a court determines de novo that the plain

meaning of a statute naturally encompasses a prosecutor’s asserted meaning should a citizen be subject to

criminal conviction and loss of life, liberty, or property.

Criminal liability is a constitutional issue of the first

order.

Because criminal liability is a fundamental matter, thirteen sections of the Constitution address it. See

U.S. Const. art. I, §3 (impeached officers may also be

criminally convicted); art. I, §6 (no criminal liability for

congressional Speech or Debate); art. I, §8 (subjects on

which Congress may create criminal liability); art. I, §9

(forbidding criminal liability from a Bill of Attainder

or ex post facto Law); art. I, §10 (same, for State Law);

The National Firearms Act of 1934 created a tax and registration system for machine guns. The Gun Control Act of 1968,

as amended in 1986, forbids the acquisition of machine guns manufactured after the effective date of the amendments, namely

May 19, 1986. See 18 U.S.C. §921(a)(24) (“machinegun” has same

meaning as in NFA); §922(o) (forbidding nongovernment acquisition of new machine guns).

The NFA uses the spelling “machinegun,” whereas modern

spelling splits to “machine gun.” This brief uses the current

spelling, except in quotations.

art. III, §3 (defining criminal liability for treason, and

setting restrictions on congressional statutes for punishment thereof ); amend. I (the exercise of certain natural rights may not be subject to criminal liability);

amend. II (same); amend. V (double jeopardy, procedural requirements for imposition of criminal penalties); amend. VI (more procedural requirements);

amend. XIV, §1 (multiple restrictions on criminal liability); amend. XVIII, §2 (authorizing Congress and the

States to impose criminal liability for intoxicating liquors); amend. XXI, §2 (repeal of XVIII; outlawing

transportation or importation of intoxicating liquor

into nonconsenting States).

The Chevron standard is loose for Executive

Branch expansion of criminal liability; anything is allowed, short of arbitrary and capricious. The Constitution’s text, considered cumulatively, perhaps counsels

a higher standard.

While the Sixth Circuit did not rely on Chevron

and the D.C. Circuit did, both courts held that the Final Rule was justified by Touby v. United States, 500

U.S. 160 (1990). See Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 903 (6th Cir. 2021); Guedes v.

BATFE, 920 F.3d 1, 28 (D.C. Cir. 2019). Touby affirms

that Congress can expressly delegate to an agency the

power to outlaw items. This is true, but irrelevant here.

Unlike Touby, this case does not involve a Delegation Doctrine challenge. Both sides agree that BATFE

has the authority to adopt any regulation that is

compliant with the statutory text of the National Firearms Act. No more, and no less.

The statute at issue in Touby—an amendment to

the Controlled Substances Act (CSA)—showed how

Congress sometimes expressly delegates the power to

criminalize additional items. In the Controlled Substances Act, Congress prohibited or restricted various

substances; and expressly delegated to the Drug Enforcement Agency (DEA) the power to add new substances to the controlled substances schedules. Later,

Congress expressly delegated to the DEA a more limited power to temporarily schedule substances without prior notice and comment. The effect of temporary

scheduling was to criminalize possession of the substance. 500 U.S. 160, 165-66 (1990); 21 U.S.C. §811. The

Touby Court upheld the temporary scheduling because

the statutory criteria were sufficiently “intelligible . . .

even if greater congressional specificity is required in

the criminal context.” Touby at 166.

Although the statute had declared temporary

scheduling “not subject to judicial review,” the Court

held (as the Solicitor General had conceded) that judicial review was available as a defense in a criminal

prosecution. It was only preenforcement review that

would have to wait until the temporary scheduling

later went through notice-and-comment to become permanent scheduling. Id. at 168-69.

Touby involved an express congressional grant of

power to the Drug Enforcement Agency to add newlyinvented substances to the Controlled Substances Act.

In contrast, only an “implicit” grant is asserted to have

come from the National Firearms Act. See Aposhian v.

Wilkinson, 989 F.3d 890, 900 n.6 (10th Cir. 2021).

The Touby case affirms congressional power expressly to delegate the definition of criminal offenses.

The difference between Touby and the instant case is

that in Touby, Congress explicitly granted the Drug

Enforcement Agency the power to add new substances

to the controlled substances list. In the National Firearms Act, there is no such grant. To the contrary, the

NFA statute itself defines what is unlawful. The NFA

does not delegate the power to expand, contract, or go

beyond any statutory definition.

Touby would be supportive of the Final Rule if

Congress had expressly delegated to BATFE a power

to expand federal laws against arms, ammunition, or

accessories.

B. Chevron fosters agency reversals.

This case highlights another Chevron flaw—agency

reversals. Starting in 2006 and continuing through

2017, ten legal decisions of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), held that

bump stock devices were not a “machinegun” as defined by the NFA. Final Rule, at 66517.3 The BATFE

The decisions are collected in the Joint Appendix. Decisions

that use the word “bump” are, in Joint Appendix order, dated: Oct.

13, 2006; June 7, 2010; July 13, 2012; July 9, 2012; Feb. 11, 2013;

May 1, 2013; Jan. 14, 2014; July 31, 2014; June 29, 2015; Apr. 6,

2017.

“ultimately concluded that these devices did not qualify as machineguns because . . . they did not ‘automatically’ shoot more than one shot with a single pull of

the trigger.” Id. Then in 2018, the Bureau reversed all

prior legal opinions. In the new 2018 view, none of the

ten prior decisions “extensively examined the meaning

of ‘automatically.’ ” Id.

It seems surprising that a bureau would neglect

plain statutory text ten out of ten times, and then get

things right on the eleventh try. As then-Judge Kavanaugh observed in 2016, “Chevron encourages the

Executive Branch (whichever party controls it) to be

extremely aggressive in seeking to squeeze its policy

goals into ill-fitting statutory authorizations and restraints.” Brett Kavanaugh, Fixing Statutory Interpretation, Judging Statutes, 129 Harv. L. Rev. 2118, 2150

(2016).

Or as Justice Gorsuch explained:

When the law’s meaning is never liquidated

by a final independent judicial decision, when

executive agents can at any time replace one

reasonable interpretation with another, individuals can never be sure of their legal rights

and duties. Instead, they are left to guess

what some executive official might “reasonably” decree the law to be today, tomorrow, next

year, or after the next election.

Buffington v. McDonald, 143 S. Ct. 14, 20 (2022) (Gorsuch, J., dissenting). Even if arguments can be made

for Chevron in routine administrative matters (such as

the meaning of “stationary source” in the Clean Air

Act), or in civil cases, it is overreach to permit agencies

freely to reverse themselves, impose criminal liability

with the reversal, and turn the reversal into the full

force of the Federal penitentiary.

Precedents that cause legal instability are particularly appropriate for reversal. See, e.g., Randall v. Sorrell, 548 U.S. 230, 243 (2006) (stare decisis exists to

“avoid[ ] the instability and unfairness that accompany

disruption of settled legal expectations”); Okla. Oil &

Gas Ass’n v. Thompson, 414 P.3d 345, 350 (Okla. 2018)

(“stare decisis is intended to counter ‘capricious instability’ ”).

Today, Chevron is such a precedent. As a recent

law review article explained, “the increasing political

polarity in America makes Chevron, as originally envisioned, a source of extreme instability in our legal system. Political polarity combined with Chevron will

create (and has already created) radical changes in the

meaning of numerous laws every few years.” Richard

Pierce, Jr., The Combination of Chevron and Political

Polarity Has Awful Effects, 70 Duke L.J. Online 91, 92

(2021).

It is unsettling to think that something that is legal one day can be subject to criminal sanctions the

next with no intervening act of Congress. That, more

than anything, evinces a clear separation of powers

problem. Such changes are characteristic of the legal

environment of an authoritarian regime, not the

United States.

This case brings to mind the warning given by

James Madison in Federalist 47: “accumulation of all

powers, legislative, executive, and judiciary, in the

same hands . . . may justly be pronounced the very definition of tyranny.” One reason only Congress should

impose criminal penalties is the importance and legitimacy of the people’s elected representatives enacting

laws that deprive a person of liberty, property, or life.

Our constitutionally separated powers should not permit unelected functionaries to create new crimes with

the stroke of a pen.

Our Constitution requires nothing less. Article I,

section 1, clause 1 states: “All legislative powers herein

granted shall be vested in a Congress of the United

States.” Likewise, Article I, section 7 requires passage

of the same legislative proposal by both Houses of Congress followed by presentment to the President as conditions precedent for the enactment of a federal law.

The Constitution could not be clearer: neither unelected functionaries nor anyone other than Congress

has the authority to make federal law creating entirely

new crimes—with the stroke of a pen. Chevron is not

fit for use in the criminal law context.

The position of the DOJ in this case is telling.

Although the DOJ invoked Chevron when creating the

Final Rule, the Solicitor General here does not seek

Chevron deference for the Department’s interpretation

of “machinegun”; that case is not cited in the Government merits brief. See Pet. Brief, Garland v. Cargill,

No. 22-976 (2023).

The Federalist 62 described the disadvantages of

instability in government, which the author (Hamilton

or Madison) expected to be reduced by six-year senatorial terms. The limitless agency reversals allowed by

Chevron promote the legal instability that our Constitution is intended to prevent:

The internal effects of a mutable policy are

still more calamitous. It poisons the blessings

of liberty itself. It will be of little avail to the

people that the laws are made by men of their

own choice, if the laws be so voluminous that

they cannot be read, or so incoherent that

they cannot be understood; if they be repealed

or revised before they are promulged, or undergo such incessant changes that no man

who knows what the law is today can guess

what it will be tomorrow. Law is defined to be

a rule of action; but how can that be a rule,

which is little known and less fixed?

This Court should enforce the separation of powers in the criminal law context, where strict fidelity to

the Constitution is especially important. Chevron deference should be inapplicable to criminal statutes and

agency reversals. This case involves both.

II.

Petitioners and amici have not come to

terms with the text of the NFA.

Petitioners’ amici argue that bump stocks ought to

be encompassed by the National Firearms Act, but the

plain text and regulatory history of the statute are unsupportive.

First, many amici urge that the NFA must be construed to encompass every “rapid fire” gun. But it is

indisputable that the NFA’s definition of “machinegun”

is narrower. Consider the Gatling gun. Patented in

1862 (No. 36,836), the Gatling has been widely described as a “machine gun,” which it may be in a functional sense, but not as defined by the NFA.

The original Gatling gun, as improved over the

1860s, had six or ten barrels; a single barrel would

have melted from the very quick succession of gunpowder explosions. The Gatling is fed from an ammunition

belt, as many future machine guns would be. It is operated by a hand crank. As the user rotates the barrels

successively into alignment with the next round of ammunition, the gun fires. See 1 George M. Chinn, THE

MACHINE GUN: HISTORY, EVOLUTION, AND DEVELOPMENT

OF MANUAL, AUTOMATIC, AND AIRBORNE REPEATING

WEAPONS 48-57 (Bureau of Ordnance, Dept. of the

Navy 1951).

The Gatling gun was “advertised as firing 300 to

500 shots a minute,” and “any time reliably constructed

ammunition was used, the weapon’s performance was

equal to, and sometimes beyond, the claims of its promoters.” Id. at 56-57. With continuing improvements,

“By 1880 Gatling was getting fire at a rate of 1,200

rounds per minute from his light gun.” Id. at 60. It was

adopted by militaries around the world. Id. at 57-59. It

was also purchased by citizens, militias, or police departments who could afford it.4

In July 1863 in New York City, anti-draft rioters

set buildings on fire, tore up rails, and cut down telegraph poles, causing over two million dollars in damage (about $48 million today). According to the New

York Times, when a mob targeted the Times building,

the Times mounted two Gatling guns in windows, and

one on the roof; Times editor Henry Jarvis Raymond

manned one of them. The rest of the Times staff had

rifles. See Robert C. Kennedy, How to Escape the Draft,

N.Y. Times, “On this Day, Aug. 1, 1863”5; Julia Keller,

MR. GATLING’S TERRIBLE MARVEL 167-68 (2008).

“When the livid citizens approached the newspaper office, their gaze rose up and up and up to the rooftop, where they saw the gleaming barrels of the

ultimate deterrent: a Gatling gun. . . . The mob backed

down.” Id. at 168.

While Petitioners’ amici insist that the NFA must

be interpreted to apply to any “rapid fire” firearm, the

argument is unsustainable in light of the statutory language and derivative federal regulation. Not appearing

As of 1874-76, average sales prices by the Gatling Gun

Company were $850 to $1,800, depending on model. Paul Wahl &

Don Toppel, THE GATLING GUN 70-71 (2d printing 1971).

https://archive.nytimes.com/www.nytimes.com/learning/

general/onthisday/harp/0801.html. The first published version

of the story was authored by a Times writer in 1921. See Elmer

Davis, HISTORY OF THE NEW YORK TIMES 59-60 (1921).

in Petitioners’ brief or any supporting amici are the

regulatory rulings relating to Gatling guns.

In the 1950s, the NFA was administered by the

Department of the Treasury’s Alcohol Tax Unit, which

is the predecessor of today’s BATFE. In 1955, the ATU

ruled that the hand-cranked Gatling gun was not encompassed by the NFA. And obviously so. Rather than

being operated “automatically” by a “single function of

the trigger,” Gatling guns operate as the user continues the physical motion of turning the crank. See Dep’t

of the Treasury, Revenue Ruling 1955-523.6

In 2004, the Bureau of Alcohol, Tobacco, Firearms,

and Explosives again explained why. See Dep’t of Justice, ATF Ruling 2004-5.7 Here, the BATFE ruled

that the “six-barrel, electrically powered” “Aircraft

Machine Gun,” commonly known as the “Minigun,” is

a NFA “machinegun.” BATFE explained why the

Minigun is a NFA “machinegun” and the classic Gatling gun is not. Unlike the hand-cranked Gatling gun,

the Minigun “shoots more than one shot, without manual reloading, by a single function of the trigger.” Id.

While the Gatling gun and the Minigun both have multiple rotating barrels, “the Minigun does not incorporate any of Gatling’s original components and its feed

mechanisms are entirely different.” Id. “The original

Gatling Gun is a rapid-firing, hand-operated weapon.

https://www.atf.gov/firearms/docs/ruling/1955-528-classificationcrank-operated-gear-driven-gatling-guns.

https://www.atf.gov/firearms/docs/ruling/2004-5-minigunruling/download.

The rate of fire is regulated by the rapidity of the handcranking movement, manually controlled by the operator. The original, crank-operated Gatling Gun, and

replicas thereof, are not automatic firearms or machineguns as defined.” Id.8

Thus, today a citizen can buy a modern replica of

the classic Gatling gun, capable of firing modern ammunition. The federal laws for sale are the same as for

other firearms that are not machine guns.

There is no dispute that a Gatling gun is capable

of “rapid fire.” For all the words that Petitioners and

Petitioners’ amici spend insisting that the NFA must

be construed to outlaw every “rapid fire” gun, the longstanding, unchallenged BATFE Rulings about Gatling

guns belie the claim. No brief on Petitioners’ side addresses the issue, even though the 2004 Ruling is the

first item in the Joint Appendix.

The reason is obvious. The NFA definition has

nothing to do with rate of fire. The NFA definition of

“machinegun” includes many firearms that fire more

slowly than any genuine machine gun, including Gatlings or Thompson submachine guns. For example,

some firearms that are classified as NFA “machineguns”

fire two or three shots with a single trigger pull. See

Stephen Halbrook, FIREARMS LAW DESKBOOK §6:6 (2023

ed.). This is very different from the continuous rapid

The 1955 Ruling had said some, not all, electrically-powered

Gatling guns (patented July 25, 1893, no. 502,185) are NFA “machineguns.” That part of the ruling was superseded to the extent

inconsistent with the 2004 Ruling. ATF Ruling 2004-5.

fire that colloquial usage associates with machine

guns.

It might seem surprising that a gun that fires two

shots per trigger function is an NFA “machinegun,”

whereas “rapid-fire” Gatling guns are not. The statutory NFA definition is not based on rate of fire.

Petitioners and supportive amici strive to persuade that the NFA definition actually means “rapid

fire.” The text does not say so, nor do the Gatling gun

Rulings.

Only a single brief in support of Petitioners even

contains the word “Gatling”: “the advent of the machine gun goes back at least to 1861, with the invention

of the Gatling gun. . . .” Patrick Charles Br., at 4.9 That

brief then abandons the subject to develop a theory

that the NFA really means a “single pull of the trigger,”

rather than the statutory text of “single function of the

trigger.” The “pull” theory elides the Gatling gun issue

because that gun does not operate by pulling a trigger.

The Charles amicus brief lists sources that described the NFA as applying to a “pull” of the trigger,

such as in regard to WWII trophies that had been captured by American soldiers. Charles Br., at 23-32.

To be precise, the first machine gun dates back to at least

1580, with a wheel-lock gun (predecessor of the flintlock) that

with one trigger pull fired 16 “superposed” rounds, the rounds being stacked on one another. See Lewis Winant, FIREARMS CURIOSA 168-70 (2009) (1st pub. 1954). The first machine gun in the

modern sense was the 50-barrel Belgian mitrailleuse, invented in

1851. See Chinn, at 64.

Other amicus briefs for Petitioner also propound the

“single pull” theory. See District of Columbia Br., at 614; American Medical Assoc. Br., at 31-34; Constitutional Accountability Center Br., at 9-12.

If Congress had enacted a statute that said “single

pull,” then a serviceman who came home with an old

Maxim or Vickers machine gun (which use push triggers, Pet. Br., at 22) would have been exempt from the

NFA. The formal regulatory Rulings of 1955 and 2004,

which are not cited by Petitioners’ amici, noncolloquially used the actual NFA text, “single function.”

Mr. Charles argues that following the statutory

text of “function” rather than his preferred “pull”

“would mean that the Tommy Gun and other contemporaneous, multi-functional submachine guns and automatic-fire capable firearms conceivably fell outside

the definition of a ‘machine gun,’ given that these firearms, even when placed in automatic-fire mode, could

technically fire a single shot with a quick pull and release of the trigger.” Charles Br., at 16-17.

The argument is implausible. The Charles theory

overlooks the NFA statutory definition, “any weapon

which shoots . . . ” 26 U.S.C. §5845(b). The definition is

based on the characteristics of the firearm, and is not

evaded by the user exercising an option to only fire a

single shot on a given occasion.

Wisely, Congress chose “function” instead of “pull,”

and Petitioners’ brief explains why. Triggers can be designed to be engaged in a variety of ways, including by

being “pushed.” Pet. Br., at 21-22. Instead of “pull” or

“pull or push,” Congress enacted the more comprehensive language “single function of the trigger.” 26 U.S.C.

§5845(b).

When using a bump stock, the user fires each shot

“by a single function of the trigger,” either by pulling

the trigger with the user’s finger or pushing the trigger

into the user’s finger.

The NFA could, arguably, be criticized for being

underinclusive and overinclusive. If there is something

to be fixed, the solution must come from legislation enacted by Congress. As Senator Dianne Feinstein explained when introducing legislation to amend the

NFA to include bump stocks:

Unbelievably, the regulation hinges on a dubious analysis claiming that bumping [i.e.,

pushing] the trigger is not the same as pulling

it. . . . Both Justice Department and ATF lawyers know that legislation is the only way to

ban bump stocks. The law has not changed

since 1986, and it must be amended to cover

bump stocks. . . .

S. Comm. on the Judiciary, Press Release, Feinstein

Statement on Regulation to Ban Bump Stocks (Mar. 23,

2018).10

https://www.judiciary.senate.gov/press/dem/releases/feinsteinstatement-on-regulation-to-ban-bump-stocks.

III. Clear drafting in criminal statutes is essential

A. The “reasonable doubt” standard of the

rule of lenity is constitutionally appropriate.

Fair notice of the requirements of a criminal statute is a fundamental constitutional right. The best

means of fostering fair notice is application of the rule

of lenity based on a reasonable doubt standard—

whether reasonable minds could disagree about the

scope of a statute. See Wooden v. United States, 142

S. Ct. 1063, 1084 (2022) (Gorsuch, J., & Sotomayor, J.,

concurring) (noting that “this Court’s early cases” used

a reasonable doubt standard); Moskal v. United States,

498 U.S. 103, 108 (1990) (“[W]e have always reserved

lenity for those situations in which a reasonable doubt

persists about a statute’s intended scope. . . .”).

A “reasonable doubt” standard is much easier to

apply than the “grievous ambiguity” standard announced in dicta in Huddleston v. United States, 415

U.S. 814, 831 (1974); Wooden, 142 S. Ct. at 1084-85

(Gorsuch, J., & Sotomayor, J., concurring) (criticizing

Huddleston).

The “grievous ambiguity” approach adds complexity to judicial review by forcing jurists to consider how

much ambiguity is enough. Measuring “grievous” ambiguity is difficult. “One major problem with that kind

of ambiguity trigger is that ambiguity is in the eye of

the beholder and cannot be readily determined on an

objective basis.” Wooden, 142 S. Ct. at 1076 (Kavanaugh,

J., concurring).

It is a simpler judicial task to determine whether

reasonable minds can disagree. As shown by the instant case, reasonable doubt might be inferred where

there are thoughtful and thoroughly-analyzed, but

conflicting, opinions on a statute’s meaning from multiple neutral judicial arbiters.

The “reasonable doubt” standard is particularly

easy to use for the rule of lenity because there is substantial case law governing reasonable doubt in the

criminal law. If reasonable minds can disagree about

the meaning of a criminal statute enacted by Congress,

then the scope of what is criminalized extends to what

is clear, and not to what is doubtful.

The competing standard for the rule of lenity—

namely “grievous ambiguity”—seemingly appeared out

of thin air in a 1974 dictum. See FAMM Amicus Br., at

10-11 (discussing Huddleston v. United States, 415 U.S.

814, 831 (1974)).

In a case involving the same section of the National Firearms Act (section 5845, at issue in Cargill),

this Court produced four different opinions, and not

one of them asserted that the rule of lenity applied only

when ambiguity was “grievous.” Justice Souter’s plurality opinion simply stated, “After applying the ordinary rules of statutory construction, then, we are left

with an ambiguous statute.” United States v. Thompson/

Center Arms Co., 504 U.S. 505, 517 (1992) (plurality

op.). While the Thompson/Center case immediately

concerned whether the manufacturer had to pay a

NFA tax, failure to pay the tax was a criminal offense

with “no additional requirement of willfulness,” so it

was “proper” “to apply the rule of lenity.” Id. at 517-18.

Justice Scalia’s concurrence thought that different

words in the statute were “sufficiently ambiguous to

trigger the rule of lenity.” Id. at 519 (Scalia, J., concurring). Dissenting Justices White and Stevens

considered the statute unambiguous, so lenity was

inapplicable. Id. at 523 (White, J., dissenting); 525-26

(Stevens, J., dissenting).

Although “grievous ambiguity” has thin support in

this Court’s precedents, and none from the Founding,

the reasonable doubt standard is well-grounded in our

legal tradition. It is based on the Anglo-American rule

that penal statutes must be strictly construed. Strict

construction of penal statutes had been affirmed in

English common law treatises that were widely influential in the American colonies. See 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 88

(1765) (“Penal statutes must be construed strictly.”); 2

Matthew Hale, THE HISTORY OF THE PLEAS OF THE

CROWN 335 (1736) (“only in such cases and as to such

persons, as are expressly comprised within such statutes [ousting benefit of clergy] . . . such statutes are

construed literally and strictly.”).

Chief Justice Marshall, riding circuit in 1812, affirmed that “Penal laws should be construed strictly.”

The Adventure, 1 F. Cas. 202, 204 (C.C. Va. 1812) (No.

93) (Marshall, C.J.). Similarly, Justice Story, riding circuit that same year, declared that “It is a principle

grown hoary in age and wisdom, that penal statutes

are to be construed strictly. . . . I will not be the first

judge, to strain a proviso against [a] citizen, beyond the

fair import of its expressions.” United States v. Mann,

26 F. Cas. 1153 (C.C. N.H. 1812) (No. 15,718).

In an 1820 case before this Court, Chief Justice

Marshall again explained that the plain meaning of

the words of a criminal statute should control:

The case must be a strong one indeed, which

would justify a Court in departing from the

plain meaning of words, especially in a penal

act, in search of an intention which the words

themselves did not suggest. . . . It would be

dangerous, indeed, to carry the principle, that

a case which is within the reason or mischief

of a statute, is within its provisions, so far

as to punish a crime not enumerated in the

statute, because it is of equal atrocity, or of

kindred character, with those which are enumerated.

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95

(1820).

Therefore, “In the construction of a penal statute,

it is well settled, also, that all reasonable doubts concerning its meaning ought to operate in favor of the respondent.” Harrison v. Vose, 50 U.S. (9 How.) 372, 378

(1850). Or Justice Henry Brockholst Livingston, when

circuit-riding, wrote: “If it be the duty of a jury to acquit where such doubts exist concerning a fact, it is

equally incumbent on a judge not to apply the law to a

case where he labours under the same uncertainty as

to the meaning of the legislature.” The Enterprise, 8 F.

Cas. 732, 734 (C.C.D.N.Y. 1810) (No. 4,499).

BATFE’s Final Rule argues in effect that bump

stocks are “of kindred character” to “machineguns.”

But BATFE had made ten previous determinations,

over eleven years, that bump stocks are not “machineguns” as defined by the NFA.11 They do not cause

more than one bullet to leave a firearm with “a single

function of the trigger.” When a rule-making agency

cannot agree with itself on a statute’s meaning, this

Court should construe the criminal statute narrowly

and apply the rule of lenity using the reasonable doubt

standard. The Court should hold the BATFE regulation invalid.

Congress knows how to ban bump stock possession, should it choose to do so. See, e.g., H.R. 396, 118th

Cong., 1st Sess. (2023); S. 1909, 118th Cong., 1st Sess.

(2023) (proposing banning bump stocks and many

other items, some of which might implicate the Second

Amendment); S. 1916, 115th Cong., 2d Sess. (2018)

(same).

B. Rules of interpretation should encourage, not discourage, clear definitions in

criminal statutes.

“[F]ederal crimes ‘are solely creatures of statute.’ ”

Dixon v. United States, 548 U.S. 1, 12 (2006) (quoting

Liparota v. United States, 471 U.S. 419, 424 (1985)); see

See supra n.3.

also Whalen v. United States, 445 U.S. 684, 698 (1980)

(the power to define crimes and punishments “resides

wholly with the Congress”); United States v. Hudson &

Goodwin, 11 U.S. (7 Cranch) 32 (1812) (federal courts

have no common law criminal jurisdiction). Hence,

“Congress, in writing statutes and the federal courts in

interpreting them, do not have the full benefit of the

common law’s wisdom and experience.” Harvey Silverglate & Monica Shah, The Degradation of the “Void for

Vagueness” Doctrine: Reversing Convictions While Saving the Unfathomable “Honest Services Fraud” Statute,

2010 Cato Sup. Ct. Rev. 201, 219. Congress therefore

has always had a particularly strong duty to draft

criminal statutes with clear definitions.

Starting with the New Deal, there has been a massive proliferation of federal criminal statutes, which

shows little sign of slowing. See, e.g., GianCarlo

Canaparo, Patrick McLaughlin, Jonathan Nelson, &

Liya Palagashvili, Count the Code: Quantifying Federalization of Criminal Statutes, Heritage Foundation

(Jan. 7, 2022).12

Establishing penal offenses that deprive individuals of life, liberty or property are among the most

weighty actions that Congress can take under its enumerated Article I, section 8 powers. When courts apply

the rule of lenity, they encourage careful drafting.

“Only the people’s elected representatives in Congress have the power to write new federal criminal

https://www.heritage.org/crime-and-justice/report/countthe-code-quantifying-federalization-criminal-statutes.

laws.” Gallardo v. Barr, 968 F.3d 1053, 1059 (9th Cir.

2020) (citation omitted). Accounting for the heightened

scrutiny, fair notice, and due process imbued in the

Constitution, Congress when creating new penal laws

must draft with precision and clarity. See Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972) (in the context of constitutional rights, “[i]t is a basic principle of

due process that an enactment is void for vagueness if

its prohibitions are not clearly defined.”); Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir.

2000) (“When a criminal law implicates [constitutional] concerns, the law must be ‘sufficiently clear so

as to allow persons of ‘ordinary intelligence a reasonable opportunity to know what is prohibited.’ ’ ”).

It has been claimed that allowing Chevron deference to trump the rule of lenity is respectful of the separation of powers. See Guedes v. BATFE, 920 F.3d 1, 27

(D.C. Cir. 2019) To the contrary, the rule of lenity serves

a crucial separation of powers function, holding Congress accountable for its work. The rule:

[P]laces the weight of inertia upon the party

that can best induce Congress to speak more

clearly, forcing the government to seek any

clarifying changes to the law rather than impose the costs of ambiguity on presumptively

free persons. In this way, the rule helps keep

the power of punishment firmly “in the legislative, not in the judicial department.”

Wooden v. United States, 142 S. Ct. 1063, 1083 (2022)

(Gorsuch, J., and Sotomayor, J., concurring) (emphasis

added).

When enacting criminal laws, Congress has the

duty to write clear, precise instructions for the Executive and Judicial Branches. If the Court expects Congress to speak clearly, it must not allow the Executive

Branch a free hand with ambiguously written statutes.

Otherwise Congress has every political incentive to

evade democratic accountability by shirking decisions

to unelected administrators. Such shirking is the opposite of the constitutional function of Congress.

In the best tradition of our separation of powers

jurisprudence, this Court should apply the criminal

laws that Congress has written with unmistakable

clarity. If there is reasonable doubt as to meaning, Congress can remove the doubt with new legislation.

A decision in favor of Respondent will lead to better-written laws. In the long run, such laws make the

judicial task of federal criminal statutory interpretation easier. Although this Court and the lower federal

courts will benefit, the most important beneficiaries

will be the American people, who have the constitutional right to be criminally punished only for transgression of clear, legislatively enacted laws.

---------------------------------♦---------------------------------

CONCLUSION

The decision below should be affirmed.

January 26, 2024

Respectfully submitted,

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, Colorado 80203

(303) 279-6536

david@i2i.org

Counsel of Record

CHRIS LAND

OFFICE OF U.S. SEN. CYNTHIA M. LUMMIS

127A Russell Senate Office Building

Washington, D.C. 20510

(202) 224-3424

Chris_Land@lummis.senate.gov

GEORGE A. MOCSARY

Professor of Law

UNIVERSITY OF WYOMING COLLEGE OF LAW

1000 East University Ave., Dept. 3035

Laramie, Wyoming 82071

(307) 766-5262

gmocsary@uwyo.edu

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.