RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0070p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ GUN OWNERS OF AMERICA, INC.; GUN OWNERS │ FOUNDATION; VIRGINIA CITIZENS DEFENSE LEAGUE; │ MATT WATKINS; TIM HARMSEN; RACHEL MALONE, │ Plaintiffs-Appellants, │ > No. 19-1298 │ GUN OWNERS OF CALIFORNIA, INC., │ Movant, │ │ v. │ │ │ MERRICK B. GARLAND, in his official capacity as │ Attorney General of the United States; UNITED STATES │ DEPARTMENT OF JUSTICE; BUREAU OF ALCOHOL, │ TOBACCO, FIREARMS AND EXPLOSIVES; REGINA │ LOMBARDO, in her official capacity as Acting │ Director, Bureau of Alcohol, Tobacco, Firearms, and │ Explosives, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:18-cv-01429—Paul Lewis Maloney, District Judge. Argued: December 11, 2019 Decided and Filed: March 25, 2021 Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges. _________________ COUNSEL ARGUED: Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Appellants. Brad Hinshelwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Kerry No. 19-1298 Gun Owners of Am., Inc., et al. v. Garland, et al. Page 2 L. Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte, Michigan, for Appellants. Brad Hinshelwood, Abby C. Wright, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Ilya Shapiro, CATO INSTITUTE, Washington, D.C., James Bardwell, NATIONAL ASSOCIATION FOR GUN RIGHTS, Loveland, Colorado, for Amici Curiae. BATCHELDER, J., delivered the opinion of the court in which MURPHY, J., joined. WHITE, J. (pp. 38–60), delivered a separate dissenting opinion. _________________ OPINION _________________ ALICE M. BATCHELDER, Circuit Judge. The question before us is whether a bump stock may be properly classified as a machine gun as defined by 26 U.S.C. § 5845(b).1 But this case rests as much on who determines the statute’s meaning as it does on what the statute means. On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF” or “Agency”) promulgated a rule that classified bump stocks as machine guns, reversing its previous position. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479) (“Final Rule”). Plaintiffs-Appellants—three gun- rights organizations, two individuals who own bump stocks, and one individual who would purchase a bump stock if not for the Final Rule—filed a motion for a preliminary injunction to prevent the Final Rule from taking effect. After finding that the ATF’s interpretation was entitled to Chevron deference, the district court held that the Final Rule’s classification of bump stocks as machine guns was “a permissible interpretation” of § 5845(b). Accordingly, the court concluded that Plaintiffs-Appellants were unlikely to succeed on the merits and denied the preliminary injunction. Because an agency’s interpretation of a criminal statute is not entitled to Chevron deference and because the ATF’s Final Rule is not the best interpretation of § 5845(b), we REVERSE the district court’s judgment and REMAND for …
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