Sixth Circuits Grants DOJ En Banc Rehearing In GOA’s Bump Stock Case

This transferrable MAC-10 is a real, fully automatic machinegun, but the ATF classified bump stocks as legally the same thing. IMG Jim Grant

CINCINNATI, OH-( The United States Sixth Circuit Court of Appeals has granted an en banc rehearing of Gun Owners of America VS. Garland.

The Gun Owners of America (GOA) backed lawsuit deals with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) banning bump stocks through changing the definition of a machine gun. Most bump stock cases primarily focus on the Second Amendment issue. This case’s primary focus is the ATF’s use of Chevron Difference to create new laws through regulation instead of going through Congress. The courts seem keener on tackling Chevron Deference than taking on Second Amendment issues.

Chevron Deference dates to 1984. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, the United States Supreme Court set a legal test to determine whether to grant deference to a government agency’s interpretation of a statute. The test consists of two parts. The first is “whether the agency’s answer is based on a permissible construction of the statute.” The second is that Congress has not dealt with the exact issue in question.

GOA’s counsel argues Chevron Deference can be applied only to administrative law. They further state that since the definition of a machine gun is criminal law, that distinction means that the ATF cannot use Chevron Deference to redefine a machine to include bump stocks. A three-judge panel agreed with GOA’s reasoning and ordered the district court to enact an injunction against the ATF’s arbitrary ban of the item.

Because the court granted the Department of Justice (DOJ) an en banc rehearing of the case, the panel’s decision is vacated, which means the District Court will not issue an injunction against the bump stock ban until the full bench hears arguments from both GOA’s lawyers and the Government lawyers. For all intents and purposes, it is like the three-judge panel’s decision never happened.

The decision to grant an en banc rehearing was not a total surprise, with the Tenth Circuit Court of Appeals ruling in favor of the government in Aposhian v. Barr. That case was another case dealing with the bump stock ban. A three-judge panel ruled the ATF had the right to apply Chevron Deference to the definition of a machine gun. Counsel for Aposhian asked for an en banc review, but by a vote of 6-5, the Tenth Circuit Court of Appeals denied the plaintiffs an en banc rehearing.

Gun Owners of America and Gun Owners Foundation (GOF) doubled down on their commitment to fighting back against the ATF using rulemaking to ban certain items. GOF is GOA’s legal non-profit. The two groups also plan to fight back against the ATF’s attempts to restrict the sale of unfinished frames and receivers and the changing of the classification of pistol stabilizing devices. The ATF is trying to use rulemaking to push a de facto ban on items that Joe Biden does not like.

“Today, the Sixth Circuit Court of Appeals vacated a brilliantly written opinion on bump stocks,” GOA Senior Vice President Erich Pratt told AmmoLand News. “But the fight is not over. Gun Owners of America and Gun Owners Foundation are committed to combating the lawless ATF at every turn in GOA v. Garland. And as the battle continues, GOA will continue to champion the common-sense decision from the appellate panel that a bump stock is not a machine gun.”

The court has not set a new date for oral arguments but did ask both parties to file briefs as soon as possible.

About John Crump

En Banc GOA v. Garland by John Crump on Scribd

John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at

John Crump

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