“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Tenth Circuit judge Joel Carson tried to throw out a Bureau of Alcohol, Tobacco and Firearms (ATF) rule that classified bump stocks as illegal machine guns. The Tenth Circuit majority rejected that view and affirmed the denial of a preliminary injunction against the ATF rule in its May 2020 decision in Aposhian v. Barr.
A bump stock is a “device that replaces the stationary stock of a semiautomatic rifle” and allows the gun to fire shots at a speed “approximating that of an automatic weapon.” After a Las Vegas shooter used bump stocks in a 2017 mass shooting that left 58 dead and approximately 500 wounded, ATF promulgated a regulation that sought to “clarify” the National Firearm Act’s (NFA) definition of a “machine gun”, which is already illegal under federal law, to include weapons equipped with bump stocks.
Utah resident Clark Aposhian had purchased a bump stock before the rule took effect. Once it did, he filed a lawsuit in a district court, seeking a preliminary injunction against the rule, claiming that the NFA clearly banned only machine guns and did not allow the banning of bump stocks. The lower court denied the injunction, and Aposhian appealed.
In a 2-1 decision, the Tenth Circuit affirmed the district court’s denial of the injunction against the bump stock rule. The majority explained that the machine gun law had some ambiguity, but ATF’s interpretation of it to include bump stocks was clearly correct under the Chevron principle that courts should generally defer to agency interpretations of ambiguous statutes. (The Trump DOJ denied that Chevron should be applied, although it did defend the rule).
More specifically, the majority explained that federal law defines a machine gun as a weapon that “automatically” causes the discharge of multiple rounds as a result of a “single function of the trigger.” The majority ruled that it was unlikely that Aposhian would succeed in invalidating ATF’s “reasonable” interpretation that the definition includes a device that allows a “semiautomatic weapon” to shoot multiple shots “with a single pull of the trigger by harnessing the recoil energy of the semiautomatic weapon” so that the trigger “resets and continues firing without additional manipulation of the trigger by the shooter.”
Judge Carson harshly dissented. He accused ATF and the majority of violating the principle that it is Congress that “has the power to make and change laws” by effectively amending what he considered an “unambiguous” law banning machine guns. He claimed that the terms “automatic” and “single function of the trigger” mean that the trigger itself “must function only once” to fire more than one shot, and that the mechanism must be “self-acting or self-regulating,” and this means bump stocks are not included. Carson would have granted a preliminary injunction against what he considered an invalid ATF bump stock rule.
The majority firmly rejected Carson’s arguments. The very fact that the law could be interpreted either as the ATF or as Carson did shows that the statute is ambiguous. The majority explained that ATF’s interpretation of “single function of the trigger” as meaning “single pull of the trigger” was “reasonable” since it was in accord with “how the phrase was understood” at the time of enactment of the machine gun law, its legislative history, a decision by the Eleventh Circuit, and “how this court has interpreted the statute.” ATF’s interpretation of “automatically” was also reasonable, the majority went on, since it “accords with the everyday understanding of the word” and decisions by both the Eleventh and the Seventh Circuits.
Although the Supreme Court denied review of a different decision upholding the bump stock rule in March despite requests by pro-gun groups, it is quite possible the Court will agree to consider the issue; Trump Justice Neil Gorsuch stated in the March case that he would be “open to hearing the issue at a future date.” For now at least, the majority in the Tenth Circuit and elsewhere have rejected arguments like Carson’s and upheld the bump stock rule.