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On Wednesday, October 20th, 2021, the 6th Circuit sitting en banc heard oral argument for the Gun Owners of America, et al. v. Garland, et al. While dealing with the specific issue of the ‘bump stock’ ban, this case deals with a much more profound question—to what extent can the ATF redefine or expand the reach of statutory criminal liability through regulatory fiat.

Previously, a 3-judge panel from the court had ruled in favor of GOA, holding that ATF’s rule banning ‘bump stocks’ was improper under various deference doctrines. The previous 3-judge panel had previously stated and ruled, in pertinent part:

Consistent with our precedent and mandated by separation-of-powers and fair-

notice concerns, we hold that an administering agency’s interpretation of a

criminal statute is not entitled to Chevron deference. Consequently, the district

court erred by finding that the ATF’s Final Rule, which interpreted the meaning

of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron

deference. And because we find that “single function of the trigger” refers to the

mechanical process of the trigger, we further hold that a bump stock cannot be

classified as a machine gun because a bump stock does not enable a

semiautomatic firearm to fire more than one shot each time the trigger is pulled.

Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits

and that their motion for an injunction should have been granted. Therefore, we

REVERSE the judgment of the district court and REMAND for proceedings

consistent with this opinion.

See page 37 of the previous 3-judge panel ruling.

Upon the government’s motion the court voted to both vacate that previous victorious ruling for the plaintiffs and to rehear the case en banc before all 16 sitting judges on the court. Oral argument for the en banc rehearing took place on Wednesday, October 20th, 2021 and the recording of the argument can be listened to here.

This “bump stock” case is now pending a ruling from the 6th Circuit en banc court. FRAC will

continue to monitor this case for developments and provide updates as they come.

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