A federal appeals court last week vacated an earlier decision that upheld the federal government's ban on bump stocks and granted a petition for a rehearing.

The U.S. 10th Circuit, based in Denver, Colorado, agreed to an en banc petition in the case of Utah gun rights advocate W. Clark Aposhian, backed by the nonprofit New Civil Liberties Alliance, which takes issue with how government regulators moved to outlaw the devices in 2018. 

While a 2-1 panel of the same court previously upheld the ban in May by relying in part on what is referred to as the Chevron deference, which allows courts to default to agency interpretations of ambiguous statues, Judge Joel Carson III, a President Trump appointee, dissented at the time, describing the ban as an overreach, saying, “turning a blind eye to the government’s request and applying Chevron anyway—the majority placed an uninvited thumb on the scale in favor of the government."

Now, the full 12-judge court will rehear the challenge, with a special focus on if and how Chevron applies. 

“The full Tenth Circuit has recognized the troubling consequences of the panel’s prior decision," said Caleb Kruckenberg, Litigation Counsel, NCLA. "Chevron deference cannot guarantee a win for an agency even when the parties agree it doesn’t apply, because it contradicts the constitutional rule that criminal laws should be construed against the government. We look forward to the Court setting a major precedent limiting Chevron’s unconstitutional reach."

The original lawsuit, filed in 2019 in a Salt Lake City U.S. District Court, challenged the proper role of administrative agencies– such as the Bureau of Alcohol, Tobacco, Firearms and Explosives– and whether their regulations may contradict a law passed by Congress, specifically the definition of a “machine gun” as set by lawmakers in 1934 and 1968. The case argued that ATF essentially rewrote the definition as set out by previous laws, something that was not in the agency’s power to do.

Between 2008 and 2017, the ATF had issued several classification decisions concluding that certain bump-stock-type devices were not machine guns.

Upwards of 500,000 bump stocks were sold with current possession of an unregistered device punishable by up to 10 years in federal prison for first-time offenders. Last October, a federal court held that the government had the power to take the property without compensation.

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