“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 judges Joel Carson and Allison Eid strongly argued in a 6-5 dissent that the full court should overrule a three-judge court decision (in which Carson had dissented) and rule that the Bureau of Alcohol Tobacco and Firearms (ATF) was wrong to determine that weapons equipped with bump stocks are machine guns and therefore illegal. The majority instead reinstated the earlier decision so that dangerous bump stocks remain illegal in its March, 2021 decision in Aposhian v Wilkinson.

As previously reported in this blog entry, a three-judge panel of the 10^th Circuit last May upheld  an ATF rule that classified weapons equipped with bump stocks, which replace the “stationary stock of a semiautomatic rifle” so that the gun fires shots at a speed “approximating that of an automatic weapon,” as illegal machine guns. ATF promulgated the rule after a deadly Las Vegas shooting using bump stocks that left 58 people dead and around 500 wounded. The court explained that although the term “machine gun” in the federal statute was somewhat ambiguous, the ATF was clearly authorized to interpret the law as covering bump stocks, and the courts should defer to the agency’s view under the Chevron principle. Although the Trump DOJ claimed that Chevron should not be applied, it agreed that the rule was valid.

Trump judge Carson dissented, and the full court agreed to vacate the panel decision and rehear the case. After receiving supplemental briefs and hearing oral argument, the full court decided by a 6-5 vote that the panel was correct and ordered that its decision should be “reinstated.”

Trump judges Carson and Eid harshly dissented along with several others. Their primary argument, made in separate dissents, was that the statutory definition of “machine gun” was “not ambiguous” and clearly did not cover weapons equipped with bump stocks. Carson elaborated, maintaining that the law refers to machine guns as “automatically” firing multiple shots “with a single function of the trigger” and that bump stock-equipped weapons do not work that way. He also argued that Chevron did not apply because the Trump DOJ (which argued the case) had not “requested” it, and Eid suggested it should not be used because the penalties for violating the law are predominantly criminal. Both acknowledged that their arguments on the law’s penalties and the Trump DOJ’s non-reliance on Chevron were discretionary, but particularly because of the lack of ambiguity, they strongly claimed that the rule banning bump stock was illegal.

In the panel opinion, the majority had responded to the claim that the law clearly permitted bump stocks. Those devices, the panel had explained, transform a semiautomatic weapon into one that “automatically” fires multiple shots “with a single pull of the trigger” by “harnessing the recoil energy” of the weapon. This was a “reasonable” interpretation of the law, and the very fact that it could be interpreted either as the ATF or Carson did shows that the statute was at least ambiguous. In addition, the panel majority went on, its interpretation corresponded with “how the phrase was understood” at the time the law was passed, its legislative history, “how this court has interpreted the statute,” and rulings by two other federal appellate courts.

The future of the ATF’s bump stock rule remains unclear. Although the Supreme Court denied review of a different ruling upholding it, Trump Justice Neil Gorsuch stated then that he would be “open to hearing the issue at a future date.” In addition, one of the six judges on the 10^th Circuit majority, Judge Carlos Lucero, took senior status shortly after the case was decided. Hopefully, he will be replaced by a fair-minded judge nominated by the Biden Administration, and it will also hopefully use Chevron and all other tools to defend the rule. And for now, despite the arguments of Trump judges Eid and Carson, dangerous bump stocks remain illegal.