# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Filed Ma y 2, 2023

No. 21-5045

D A M I E N G U E D E S

, E T A L

., A P P E L L A N TS

F I R E A R M S P O L I C Y C O A L I TI O N

, I N C

., A P P E L L E E

v.

B U R E A U O F A L C O H O L

, T O B A C C O

, F I R E A R M S A N D

E X P L O S I V E S

, E T A L

., A P P E L L E E S

Appea l from the United States District Court

for the D istrict of Columbia

(No. 1:18-c v-02988)

On Petition for Rehea

ring En Ba

nc

Be fore : S R

I N I V A S A N

, Chief Judge ; H E

N D E R S O N ***,

M I L L E TT **, P I L L

A R D

, W I L K I N S **, K A TS A S *, R A O *,

W A L K E R ****, C H I L D S

, and P A N *, Circuit Judges

O R D E R2

Appellants’ pe tition for rehe aring en banc and the

response there to were circ ulated to the full cour t, and a vote

was re quested. The rea fter, a majority of the judg es elig ible to

participa te did not vote in favor of the petition. Upon

considera tion of the fore g oing, it is

ORDERED that the petition be denied.

P er C uriam

F OR THE COURT:

Mark J. L ang er, Cler

k

BY : /s/

Daniel J. Reidy

Deputy Clerk

* Circuit J udg es Ka tsas, Rao, and Pan did not participa te in

this matter.

** A statement by

Circuit J udg e Wilkins , joined by Circuit

J udg e Millett, concurr ing in the de nial of re hear ing e n banc, is

attache d.

*** Circuit J udg e He nderson would g rant the pe tition for

rehe aring en banc . A statement by Circuit J udg e He nderson,

dissenting f

rom the denia l of rehe aring en banc , is attache d.

**** Circuit J udg e Walker w ould gr ant the petition for

rehe aring en banc . A statement by Circuit J udg e Walker,

dissenting f

rom the denia l of rehe aring en banc , is attache d.W ILKINS

, Circuit Judge

, with whom M ILLETT

, Circuit

Judge

, joins, concurring in the denial of the petition for

rehearing en banc : Petitioner s raised two arguments as reasons

of “exceptional importance” for granting the petition, see F ed

. R. App. P

. 35(a)(2), namely ( 1) whether the interpretation of

the statutory terms defining a “ machine gun ” to include bump

stocks by the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF” or the “Bureau”) is the best reading of the

statute, and (2) whether the purported ambiguity in the

statutory definition compels an interpretation in their favor

pursuant to the rule of le nity. The panel opinion thoroughly

addressed both arguments, see Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives

, 45 F.4th 306 (D.C. Cir.

2022), and neither merit further review by our court.

I write only to clarify a couple of matters and to respond

to some of the points made in the rehearing petition and by my

dissenting colleague s

.

I.

F irst

, I must address some misconceptions about the

legislative and regulatory history.

“Representing the first major federal attempt to regulate

firearms, the [National Firearms Act of 1934 ] concentrated on

particularly dangerous weapons and devices such as machine

guns, sawe d off shotguns and silencers. ” Lomont v. O’Neill

, 285 F.3d 9, 11 (D.C. Cir. 2002). See P ub

. L. No. 73

- 474, 48

Stat. 1236 (1934). As originally conceived, t he Act and its

implementing regulations did not ban the possession of

machine guns outright; instead, they required a person seeking

to obtain a machine gun to file an application with the Treasury

Department, pay a hefty transfer tax, and submit a photograph,

fingerprin ts, and a certificate from a local law enforcement

official attesting their belief that the person intend ed to use the

firearm for lawful purposes. Lomont

, 285 F.3d at 11

– 12. If the2

Treasury Department granted the application

, the person’s

name and address, along with the serial number of the machine

gun, were placed in a registry. Id

. The Act made the

manufacture, transfer

, or possession of a machine gun without

Treasury approval and payment of applicable taxes unlawful

. See 26 U.S.C. § 5861

. In 1986, Congress prohibit ed the

transfer or possession of machine guns, except by authorized

military or governmental officials, unless the person lawfully

possessed the machine gun prior to May 19, 1986

. See Act of

May 19, 1986, P ub

. L. No. 99

- 308

, § 102, 100 Stat. 4 49 (1986) ;

see also 1 8 U.S.C. § 922(o).

As drafted in 1934, t he National Firearms Act defined a

“machine gun” as follows:

The term “machine gun” means any weapon

which shoots, or is designed to shoot,

automatically or semiautomatically, more than

one shot, without manual reloading, by a single

function of the trigger. 1

1 As my dissenting colleague s point out, see Walker Op. 2 n.1 ;

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives

, 920

F.3d 1, 4 4

– 4 5 (D.C. Cir. 2019 ) (Henderson, J., concurring in part and

dissenting in part)

, Congress amended the definition of machine gun

in 1968. The amendment deleted the word s “ or semiautomatically”

from the above

- quoted sentence. Pub. L. No. 90

- 618, 82 Stat. 1213,

1231 (1968). The 1968 Act also added a second sentence specifying

that “ the frame or receiver ” of the weapon, or “any combination of

parts designed and intended ” to conv ert a weapon into a machine gun

or to assemble a machine gun

, also qualified as a machine gun. Id.

The legislative history clearly indicates that Congress did not

consider the deletion of “ or semiautomatically ” to be a substantive

change, because Congres s stated “[t]his subsection defines the term

‘machinegun’ and the first sentence is existing law.” S. R ep

. No. 90

-

150 1

, at 45 (1968) (section

- by

- section analysis of the bill) ; see also3

Pub. L. No. 73

- 474, § 1(b), 48 Stat. 1236, 1236 (1934).

P etitioners and my dissenting colleague complain that the

panel’s conclusion that “a ‘ single f unction of the trigger ’ is best

understood as a ‘single pull of the trigger’ and ‘analogous

motions’ ” is somehow novel. Pet. at 11 (quoting Guedes

, 45

F.4th at 315, 317) ; Walker Op. 6

– 7. Not so.

Both the Senate and House reports on the National

Firearms Act explained that the bill “contains the usual

definition of machine gun as a weapon designed to shoot more

than one shot without reloading and by a single pull of the

trigger .” S. R ep

. No. 73

- 1444

, at 2 (1934) (quoting H. R. Rep.

No. 73

- 1780 (1934) ) (emphasis added). Immediately

following the Act’s passage

, the Treasury Department

published a letter ruling defining a machine gun as “a

semiautomatic pistol or an autoloading pistol when converted

into a weapon which shoots automatically, that is, one capable

of discharging the entire capacity of its magazine with one pull

of the trigger

. . . . ” Rev. Rul. XIII

- 38

- 7035, S.T. 77 2, 13

- 2

C.B. 433

– 34 (Jul.

- Dec. 1934) (emphasis added). 2 Thus,

Federal Firearms Legislation, Hearings before the Senate Judiciary

Committee, Juvenile Delinquency Subcommittee

, 90th Cong

. 135

(1968) ( quoting from section

- by

- section analysis submitted to

Congress by Hon. Sheldon S. Cohen, Commissioner of Internal

Revenue) (“This subsection defines the term ‘machine gun’ and t he

first sentence is existing law.”)

. Accordingly, attempts to rely upon

the 1968 deletion of “ or semiautomatically” to narrow the reach of

the text, see Pet. at 12; Walker Op. 8

– 9 ; Guedes

, 920 F.3d at 44

– 45

(Henderson, J., concurring in part and dissenti ng in part), are without

merit.

2 This 1934 letter ruling was not cited in the briefing or in the panel

opinion. I found it when performing subsequent research after the

rehearing petition was filed.4

“single function of the trigger” was construed as equivalent to

“single pull” of the trigger at the outset.

Significantly, the 1934 Treasury letter ruling defines

machine gun consistent with how a bump stock operates,

because it is a device that is “capable of discharging the entire

capacity of its magazine with one pull of the trigger.” 13

- 2

C.B. at 434. As the District Court found, “[o]nce the shooter

pu lls the trigger, a bump stock harnesses and directs the

firearm ’ s recoil energy, thereby forcing the firearm to shift

back and forth, each time ‘ bumping ’ the shooters stationary

trigger finger. The shooter is thus able to reengage the trigger

without addit ional pulls of the trigger .” Guedes v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives

, 520 F. Supp. 3d 51,

58 (D.D.C. 2021) (emphasis added)

. Petitioner s did not

properly challenge the predicate for these factual findings when

proposed by the government at the summary judgment stage,

and they did not challenge the District Court’s factual findings

as clearly erroneous on appeal. See Guedes

, 45 F.4th at 317

–

18. P etitioners’ attempt to wriggle out of these findings at the

r ehearing stage

, see Pet. at 10 n.2, comes way too late and is at

least doubly forfeited.

I refer to this 1934 letter ruling not because its

interpretation is binding upon or must be deferred to by this

Court. Instead, it bears mention because it refutes Petitioners’

contention that t he 2018 bump stock r ule “ contradict s eight

decades of interpretation s by the Treasury Department and the

ATF.” Pet. at 15 ; see also Guedes

, 920 F.3d at 4 6

– 4 7

(Henders on, J., concurring in part and dissenting in part)

. To

the extent the relative gravitas of the various letter rulings is

relevant to the debate

, I note that the 1934 letter ruling was

public, issued by the Acting Commissioner of Internal

Revenue

, and approved by the Secretary of the Treasury

, s ee

13

- 2 C.B. at 440, whereas the bump stock letter rulings issued5

between 2008 and 2017 cited by P etitioners and the dissent

were all private

, rather than public, and issued by subordinate

Bureau officials

, see A dministrative R ecord (“A.R.”) 424

– 84.

See 26 C.F.R. § 601.601 (d)(2)(v) (d) (“Revenue Rulings

published in the Bulletin do not have the force and effect of

[regulations]

, but are published to provide precedents to be

used in the disposition of other cases, and may be cited and

relied upon for that purpose. No unpublished ruling or decision

will be relied on, used, or cited, by any officer or employee of

the Service as a p recedent in the disposition of other cases.”)

. Further, the suggestion by P etitioners and the dissent that

purchasers of bump stocks were entitled to rely on the 2008

-

2017 private letter rulings is wholly without merit. See i d .; see

also McCutchen v. United States

, 14 F.4th 1355, 1368

– 70 (Fed.

Cir. 2021), cert

. denied

, 143 S. Ct. 422 (2022) (holding that

bump stock private letter rulings d id not establish a property

right because the Bureau’s handbook, “which is public, states

that a [fir earm] classification provided by letter is ‘subject to

change if later determined to be erroneous

, ’ ” and also because

the letter rulings were informal, unpublished

, and not issued

through rulemaking ); Hanover Bank v. Comm ’ r

, 369 U.S. 672,

686 (1962) (“ [P] etitioners are not entitled to rely upon

unpublished private rulings which were not issued specifically

to them [.] ”)

.

Relatedly, the dissent’s characterization of the 2018 Rule

as Executive overreach ignores the constitutional and statutory

context and exaggerates what happened here. Walker Op. 1

, 10

– 16. As we have previously held, Congress explicitly gave

the Secretary of Treasury “interpretative rulemaking power ” in

the National Firearms Act

. See Lomont

, 285 F.3d at 16 (citing

26 U.S.C. § 7805(a))

. Thus, the statute, and the Executive’s

power to “take C are that the L aws be faithfully executed,” U.S.

C ONST

. a rt. II

, § 3, made it perfectly appropriate for the Bureau

to issue a rule explaining what it believed the statute meant and6

how it would enforce the law going forward. The 2018 Rule

was not an extraconstitutional “ power grab [] ,” Walker Op. 1,

but rather a fitting response to many reasonable questions about

the Executive’s view of the scope of the statut ory machine gun

prohibition and how it would be enforced following a national

tragedy

. And while the Executive can pronounce its statutory

interpretation consistent with th e constitution al order, the

judicial branch has the power and responsibility to render the

authoritative interpretation of the statute

. There is no

constitutional crisis.

II.

As the panel explained, “a ‘single function’ of the trigger

is best understood as a ‘single pull of the trigger’ and

‘analogous motions,’ while automatically is best understood to

mean a ‘result of a self

- acting or self

- regulating mechanism.’”

Guedes

, 45 F.4th at 317. I will let the panel opinion speak for

itself. I add only that the 1934 letter ruling, issued by the

Commissioner and adopted by the Secretary, is consistent with

the panel’s interpretation, and thus corroborates that the panel

interpretation is the best reading of the statute.

As the 1934 Cumulative Bul letin indicates, none other

than Robert H. Jackson

— as Assistant General Counsel of the

Bureau of Internal Revenue

— authored over two dozen

regulations

, letter rulings, and opinion letters that were

published contemporaneously with the 1934 machine gun lette r

ruling. 13

- 2 C.B.

, passim

. We do no t know whether then

- Mr.

Jackson draft ed or approved the 1934 machine gun letter

ruling, though it is probable. But w e do know that

, a few years

later, then

- Justice Jackson warned that “if the Court does not

temper its doctrinaire logic with a little practical wisdom, it will

convert the constitutional Bill of Rights into a suicide pact .”

Terminiello v. City of Chicago

, 337 U.S. 1, 37 (1949) (Jackson,7

J., dissenting). The 58 people killed and approximately 500

wounded in Las Vegas by a shooter using bump stock devices

behoove us to heed Justice Jac k s on’s prescient admonition

. W here we can employ tools of statutory interpretation to derive

a reasonable interpretation of the statute

, we should not find a

“grievous ambiguity” to rule in Petitioners’ favor pursuant to

the rule of lenity

. Maracich v. Spears

, 570 U.S. 48, 76 (2013).

One of the manufacturers of bump stocks bragged on its

website

, “Did you know that you can do full

- auto firing and it

is absolutely legal?” A.R. 840. We do n o t have to “ guess as to

what Congress intended,” Maracich

, 570 U.S. at 76, to

determine whether text prohibiting “ any weapon which shoots

. . . automatically more than one shot, without manual

reloading, by a single function of the trigger

, ” 26 U.S.C. §

5845(b), covers a device that concededly replicate s “full

- auto

firing

, ” A.R. 840. “There is no war between the Constitution

and common sen se.” Mapp v. Ohio

, 367 U.S. 643, 657 (1961).

The petition for rehearing en banc is properly denied.K AREN L E C RAFT H ENDERSON

, Circuit Judge , dissenting

from the denial of rehearing en banc: For the reasons explained

at the preliminary injunction stage in my separate panel

opinion, which is hereby incorporated by reference thereto,

Guedes v. ATF , 920 F.3d 1, 35

– 49 (D.C. Cir. 2019)

(Henderson, J., concurring in part and dissenting in part ), I

dissent from the denial of rehearing en banc

. And I echo Judge

Walker’s view that the case presents “question [s] of

exceptional importance.” D.C. Cir. R. 35(a)(2); see infra at 1 1

– 16 (Walker, J., dissenting from denial of rehearing en banc).W ALKER

, Circuit Judge , dissenting from the denial of

rehearing en banc: Congress recently considered at least five

bills restricting or banning bump stocks. None passed. Yet

bump stocks are illegal anyway. That’s because the Bureau of

Alcohol Tobacco, Firearms, and Explosives stepped into

Congress’s shoes and criminalized owning a bump stock.

Like other power grabs by impatient agencies, the Bureau

decided Congress was taking too long. So it relied on a

misguided reading of an old statute to solve the problem itself.

According to the agency, that old statute had banned bump

stocks all a long.

The Bureau’s overreach is troubling because it turns law

abiding Americans into criminals. Before the Bureau issued its

rule, it spent a decade telling the public that bump stocks were

legal. After the rule, bump

- stock owners who relied on that

adv ice are felons if they do not discard their devices.

Congress makes the laws

— especially the criminal laws

. The executive branch does not. To reestablish that principle, I

would grant rehearing en banc.

I

Relying on a strained reading of an old statute

, the Bureau

banned bump stocks. But no statute gives it that authority.

A

The Firearms Owners’ Protection Act of 1986 “effectively

banned private ownership of machine guns.” Guedes v. ATF

, 920 F.3d 1, 35 (D.C. Cir. 2019) ( Guedes I ) (Henderson, J.,

concurring in part and dissenting in part) (citing Pub. L. No.

99- 308, 100 Stat. 449). The Act made it a crime to “transfer or

possess a machinegun” that was not “lawfully possessed”

before 1986. 18 U.S.C. § 922(o)(1) , (2)(B)

. To define2

“machinegun

, ” the Act drew on a long

- standing definition in

the National Firearms Act of 1934 , as amended in 1968 : a

“machinegun” is a “weapon which shoots

. . . automatically

more than one shot

. . . by a single function of the trigger.” 26

U.S.C. § 584 5(b). 1

For decades, the government interpreted that definition to

exclude guns that fire only a single bullet each time the trigger

moves. In 1955, for instance, the government said that a crank

operated gatling gun was not a machinegun because it was “ not

designed to shoot automatically

. . . more than one shot with a

single function of the trigger.” Rev. Rul. 55

- 528, 1955 WL

9410. The crank just let the user fire the gun more quickly.

Fast forward to 2008. The Bureau relied on similar

reasoning to find that a bump stock did not turn a

semiautomatic gun into a machinegun. A bump stock replaces

the standard stock of a semiautomatic rifle. When a shooter

fires the rifle, it naturally recoils backwards into the shooter’s

shoulder. The bump stock cap tures that recoil energy,

returning the rifle forward. When that happens, the trigger

bumps into the shooter’s stationary trigger finger, firing the

weapon. The rifle will keep firing as long as the shooter keeps

forward pressure on the bump stock. In “ ten letter rulings

between 2008 and 2017,” the Bureau said “bump

- stock

- type

devices” did not “qualify as machineguns” because they do not

work “ automatically. ” 83 Fed. Reg. 66,514 , 66,517 (Dec. 26,

2018)

. Instead, they require “the maintenance of pressur e by

the shooter” to work. Id. at 66,518.

1 The Act original ly defined a machinegun as “any weapon which

shoots, or is designed to shoot, automatically or semiautomatically

, more than one shot.” Pub. L. No. 73

- 474, 48 Stat. 1236 (emphasis

added)

. The Gun Control Act of 1968 deleted the words “or

semiautomatically.” Pub. L. No. 90

- 618, 82 Stat. 123 1

.3

Then in 2017, a gunman using a bump stock killed 58

people and wounded 500 others in Las Vegas

. In the wake of

that tragedy, Congress considered legislation to ban or restrict

bump stocks. See, e.g.

, H.R. 4168, 115th Cong. (2017); S.

1916, 115th Cong. (2017); S. 2475, 115th Cong. (2018); H.R.

4594, 116th Cong (2019); H.R. 5427, 117th Cong. (2021). Yet

for better or worse, those bills did not become laws.

In our system of separated powers, that should have been

the end of the story. Congress alone makes the laws. U.S.

Const., Art. I. And Congress has not yet decided to ban bump

stock s . If tha t is bad policy, Americans can show their

dis ap proval at the ballot box by voting out their representatives.

But i nstead of letting the democratic process play out, the

Bureau took matters into its own hands. While legislative

efforts were ongoing, the Bureau issued a rule reinterpreting

the statutory definition of “machinegun” to include bump

stocks. 83 Fed. Reg. at 66,514 . In doing so the Bureau

reversed the interpretation of the statute it had stuck to for a

decade. Id. at 66,517.

The Bureau al so went further than some of the proposals

Congress rejected. For instance, the proposed Closing the

Bump

- Stock Loophole Act would have required bump

- stock

owners to “register ” their devices with the Bureau. H.R. 4168,

115th Cong. (2017). The Bureau esc hewed all such half

measures; its reinterpretation of the statute banned bump stocks

altogether.

After the Bureau ’s interpretive about

- face , Damien Guedes

and several other plaintiffs brought a challenge under the

Administrative Procedure Act. See Guedes v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives , 520 F. Supp. 3d 51

(D.D.C. 2021 ). Guedes argued that the Bureau lacked statutory4

authority to ban bump stocks because they are not covered by

the National Firearm s Act’s definition of “machinegun.” Id. at

61. The district court rejected that argument and a panel of this

court affirmed. Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives , 45 F.4th 306, 317 (D.C. Cir. 2022)

( Guedes II ). Guedes now petition s for rehearing en banc.

B

T he Bureau’s rule misreads the National Firearms Act

. Under the Act, a “machinegun” must “ shoot [ ]

. . . automatically more than one shot

. . . by a single function of

the trigger.” 26 U.S.C. § 5845(b). A bump stock neither lets a

shooter “automatically [fire] more than one shot” nor lets him

do so by “a single function of the trigger.” Id. So Congress ’s

ban on machineguns unambiguously does not cover them.

1

Start with the phrase “single function of the trigger.”

In 1934, when the statutory definition of “machinegun”

became law, “function” meant the “natural and proper action”

of a thin g. Webster’s New International Dictionary 876 (2d ed.

1933)

. Something’s “function” was “[t]he special kind of

activity proper to [it]; the mode of action by which it fulfills its

purpose.” 4 Oxford English Dictionary 602 (1933) ; see also

Wisconsin Cent ral Ltd. v. United States , 138 S. Ct. 2067, 2070

(2018 ) (courts should “ interpret the words consistent with their

ordinary meaning at the time Congress enacted the statute”

(cleaned up) ).

So here, we must ask whether the “natural and proper

action” of the trigger lets a rifle modified by a bump stock fire

“ more than one shot. ” 26 U.S.C. § 5845(b). It does not. When5

shooting with a bump stock, only one shot fires each time the

trigger mov es. See Guedes II , 45 F.4th at 320 (“a bump stock

device [ ] fires only one round with each mechanical movement

of the trigger ”). “T he trigger

. . . must necessarily ‘pull’

backwards and release the rifle ’ s hammer

. . . every time that

the rifle discharges

. . . . The rifle cannot fire a second round

until both the trigger and hammer reset.” Aposhian v. Barr

, 958 F.3d 969, 995 (10th Cir.) (Carson, J., dissenting). Every

shot requires a new movement of the trigger. If a gun fitted

with a bump stock fires more than one round with a single

movement of the trigger, it has malfunctioned.

The Bureau avoids that conclusion by rewriting “ single

function of the trigger ” as “ single pull of the trigger. ” 83 Fed.

Reg. at 66,5 14, 66,518

. Because a shooter firing with a bump

stock need pull the trigger only once to start firing , the Bureau

says that a bump stock counts as a machinegun under the

statute. Id. at 66,514. After that initial pull, the bump stock

repeatedly pushes the trigger into the shooter’s stationary

finger, firing additional shots. No additional pulls are required.

But the Bureau provides scant evidence to support its edit

of the statute. Relying on a footnote from Staples v. United

States , 511 U.S. 600, 602 n.1 (1994)

, and a snippet of testimony

from a congressional hearing , the Bureau claims that its

interpretation is “consonant with the statute and its legislative

history.” 83 Fed. Reg. at 66,51 8 (quoting Akins v. United

States , 312 F. App ’ x 197, 200 (11th Cir. 2009) )

.

That is a flimsy foundation for reading the word “function”

to mean something different

. True, in Staples , the Supreme

Court described an automatic weapon as one that “fires

repeatedly with a single pull of the trigger.” 511 U.S. at 602

n.1. But it did so in a footnote describing background facts, not

when definitively interpreting the National Firearms Act. See6

United States v. Olofson , 563 F.3d 652, 657 (7th Cir. 2009) (the

Staples footnote “was providing a glossary for terms frequently

appearing in the opinion” and not “interpreting a statute”).

That leaves the agency with a solitary sentence from a

committee hearing on the 1934 National Firearms Act to

support its interpretation

. There, the National Rifle

Association’s then

- president testified that a machinegun is a

weapon “capable of firing more than one shot by a single pull

of the trigger, a single function of the trigger.” 83 Fed. Reg. at

66,518 (quotation marks omitted)

. But legislative history is

notoriously unreliable. The text of the statute controls, not a

throw

- away line cherry

- picked from the 170

- page record of a

congressional hearing. See National Firearms Act: Hearings

Before the Committee on Ways and Means , H.R. 9066, 73rd

Cong. (1934) ; see also Epic Sys tems Corp. v. Lewis , 138 S. Ct.

1612, 1631 (2018) (warning against “ divin [ing] messages from

congressional commentary ”). 2

Perhaps realizing that the agency’s argument is weak, the

panel offer ed a different explanation for why “function” really

means “pull .” It reasoned that “function” means an “ activity;

doing; [or] performance,” and “the shooter’s pull is the single

2 To the agency’s evidence, Judge Wilkins’s eagle

- eyed research

adds a 1934 tax ruling. Wilkins Op. 3. There, the Treasury said a

“semiautomatic” or “autoloading” pistol becomes a “machine gun”

wh en converted to “discharg[e] the entire capacity of its magazine

with one pull of the trigger.” Rev. Rul. XIII

- 38

- 7035, S.T. 772, 13

-

2 C.B. 433

– 34 (Jul.

- Dec. 1934)

. True, that ruling is probative of the

original public meaning of the Act. But tax ruling s can be mistaken,

even when they may have been written by Robert Jackson

. Cf.

Horace, Ars Poetica (“ sometimes even good Homer nods off ”). And

here, for the reasons explained above , strong textual clues counsel

against equating, as the Treasury did, “single function of the trigger”

with “one pull of the trigger.”7

‘activity’ or ‘performance’ of the trigger that causes the gun to

shoot automat ically more than one shot.” Guedes II

, 45 F.4th

at 315 ( quotation marks omitted ). But that focuses on the

reason why the trigger moves, not, as the statute requires, on

how often the trigger moves . That gets it backwards. The

statute is indifferent abo ut why the trigger moves

— pull,

bump, or otherwise

— it looks only to how many shots are

fired each time the trigger moves

.

Plus, reading “function” as “pull” ignores the fact that

Congress knows how to write “single pull of the trigger” when

it wants to. Indeed, the National Firearms Act’s definition of

“ rifle” uses that phrase. See 26 U.S.C. § 5845(c) (a rifle “fire[s]

only a single projectile through a rifled bore for each single pull

of the trigger”); see also 18 U.S.C. § 921(a)( 5 ) (a shotgun

“fire[s] through a smooth bore either a number of ball shot or a

single projectile for each single pull of the trigger”). Yet the

panel’s interpretation of “function” gives no meaning to

Congress’s decision to use “single function” in one place and

“single pull” in another. Cf. Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of Legal Texts 170 (2012)

(courts should pay attention to meaningful variation in

statutory language)

.

Even if the agency is right th at “function” means “pull

, ” it

is still not clear that the statute covers bump stocks. The agency

claims, and the panel accepts, that a “pull” of the trigger can

include other “ analogous ” ways of “activat[ing]

. . . a trigger”

like a “ push, or some other action .” 83 Fed. Reg. at 66,515,

66,518 n.5 ; see also Guedes II

, 45 F.4th at 311 (the statute

covers a “single pull of the trigger and analogous motions.”).

Here, it is undisputed that a bump stock works by bumping the

trigger into the shooter’s stationary finger, thus firing the

weapon. So w hy does that not count as a motion that is

analogous to a “pull of the trigger”? The agency has no answer.8

And if a bump is analogous to a pull, then rifles fitted with

bump stocks are not machineguns under the National Firearms

Act

. Each bump, like each pull, fires one bullet. A single

action never causes the rifle to fire more than one shot.

2

A bump stock is not a “machinegun” for a second reason.

A machinegun must “shoot [ ] automatically more than one

shot.” 26 U.S.C. § 5845 (b) (emphasis added) . A bump stock

does not.

In 1934, “ automatic ally ” meant “having a self

- acting or

self

- regulating mechanism,” Webster’s New International

Dictionary 187 (2d ed. 1934), or “[s]elf

- acting under the

conditions fixed for it, going of itself.” 1 Oxford English

Dictionary 574 (193 3).

A mechanism cannot be self

- acting or self

- regulating if it

requires user input to keep working. And a bump stock needs

constant input from the shooter if a gun is to keep firing. He

must keep forward pressure on the bump stock for it to work.

If h e does not, the weapon will fire only one shot. So firing

with a bump stock requires “skill [ ] and coordination,” as

explained in comments on the Bureau’s proposed rule. 8 3 Fed.

Reg. at 66,531

– 32.

Rather than grappling with that inconvenient fact, the

Bureau largely ignores it. It says that a bump stock lets a

shooter fire more than one shot automatically because “the

device harnesses the firearm’s recoil energy in a continuous

back

- and

- forth cycle that allows the shooter to attain

continuous firing af ter a single pull of the trigger.” Id. at

66,519. That is true enough. But it does not account for the

undisputed fact that a shooter must maintain “forward pressure9

on the barrel” for a bump stock to let him fire more than one

shot. Guedes II , 45 F.4th at 318. And tellingly, the Bureau

reached a different conclusion for years, finding that bump

stocks require “multiple inputs by the user for each successive

shot.” Letter from Richard W. Marianos, ATF Assistant

Director Public and Governmental Affairs, to Rep. Ed

Perlmutter, at 1

– 2 (Apr. 16, 2013)

, https://perma.cc/46VL

J88S

.

Even worse , the agency’s reading of the statute elides an

important distinction between automatic and semiautomatic

guns. In 1934, the “difference between an ‘automatic ’ and a

‘semiautomatic’ gun depended on whether the shooter played

a manual role in the loading and firing process.” Guedes I , 920

F.3d at 45 (Henderson, J., concurring in part and dissenting in

part ). A semiautomatic gun is one “in which part, but not a ll,

of the operations involved in loading and firing are performed

automatically.” Id. (quoting Webster’s New International

Dictionary 187 (2d ed. 1934)). By contrast, after the first shot

is fired

, an automatic gun reloads and fires automatically , so

lo ng as the shooter keeps his finger on the trigger

. Id . A gun

modified by a bump stock works semi automatically: the

shooter plays a manual role in the firing process because he

must keep constant pressure on the bump stock.

If Congress had wanted to call a semiautomatic weapon a

machinegun, it could have

. In fact, in 1934, it did. Originally,

the National Firearms Act defined machinegun to cover both

guns that fire more than one shot “semiautomatically” and

those that do so “automatically.” Pub. L. No. 73

- 474, 48 Stat.

1236

. But in 1968, Congress deleted the word

“semiautomatically” from the statutory definition. Pub. L. No.

90

- 618, 82 Stat. 1213

. The Bureau’s rule essentially writes it

back in.10

3

To make matters worse, the Bureau’s rule has no

grandfather clause . That means that hundreds of thousands of

law

- abiding Americans who legally bought bump stocks before

2018 now possess illegal property. What are they to do?

According to the Bureau, they should “destroy or abandon th e ir

devices.” 83 Fed. Reg. at 66,5 30

.

That suggestion is startling. For one thing, many bump

stock owners purchased their devices in reliance on the

Bureau’s assurance that they were not prohibited. See 83 Fed.

Reg. at 66,517

. For another, when Congres s passed its ban on

machineguns in 1986, it grandfathered in “machinegun[s] that

w[ere] lawfully possessed before” the ban became effective.

18 U.S.C. § 922(o)(2)(B). It is hard to imagine that a Congress

that sought to protect lawful gun owners when it passed the ban

would have sanctioned the Bureau’s subsequent bait and

switch.

* * *

To sum up

, a gun fitted with a bump stock is not a

machinegun because it does not automatically fire more than

one shot each time the trigger moves.

In reaching that conclusion, I join other judges who have

persuasively explained why the Act does not ban bump stocks.

See Cargill v. Garland

, 57 F.4th 447 (5th Cir. 2023) (en banc);

Guedes I , 920 F.3d at 35 (Henderson, J., concurring in part and

dissenting in part ); Gun Owners of America v. Garland , 19 F.

4th 890, 910 (6th Cir. 2021) (en banc) (Murphy, J., dissenting);

Aposhian v. Wilkinson , 989 F.3d 890, 896 (10th Cir. 2021)

( Tymkovich, C.J., dissenting from vacatur of en banc order).11

II

If this were an ordinary case about statutory interpretation

, I would not call for rehearing en banc, even if I disagreed with

the panel’s analysis. En banc review is reserved for

“ question[s] of exceptional importance.” D.C. Cir. R. 35(a)( 2 ).

But the bump stock ban is not ordinary

. It’s the source of

a circuit split. It’s the product of an a gency’s impatience with

Congress . And it’s an affront to 800 years of Anglo

- American

legal history restricting the executive’s power to create new

crimes

.

In short, even in an era of aggressive executive rulemaking

, the bump stock ban is a bridge too far

.

A

En banc rehearing is often appropriate when a panel

opinion conflicts with other circuit -court decisions. Sweet

Home Chapter of Communities for a Great Oregon v. Babbitt

, 30 F.3d 190, 195 (D.C. Cir. 1994) (Silberman, J., dissenting

from denial of rehearing en banc) (“[T]he issue would seem of

sufficient importance, particularly in light of the circuit split.”);

cf. D.C. Cir. R. 35( b) (1) (B) (litigants should flag circuit splits

in their en banc petitions ).

Here, c ircuits are split on the best reading of the National

Firearms Act’s definition of “machinegun.”

The Fifth and Sixth Circuit s have held , as I would, that the

Act does not let the Bureau ban bump stocks

. See Cargi ll

, 57

F.4th at 447 ; Hardin v. Bureau o f Alcohol, Tobacco, Firearms

a nd Explosives , 2023 WL 3065807 (6th Cir. 2023)

. T he Tenth12

Circuit upheld the Bureau’s rule, as did this Court

. Aposhian

, 9 58 F.3d at 9 8 9 ; Guedes II , 45 F.4th at 3 10

.

B

T wo further factors weigh in favor of reconsideration en

banc.

1

T he bump

- stock ban is a glaring example of an

increasing ly common story:

1. Congress consider s a highly controversial solution to a

modern problem that attracts great public attention

.

2. Despite that at tention, Congress does not pass

legislation addressing it

.

3. T he executive then finds within an old statute the power

to address the problem that Congress did not.

That is also what happened with student loan forgiveness.

Compare H.R. 6800, 116th Cong. (2020) with Loan

Forgiveness Fact Sheet , White House (Aug. 24, 2022). And

the COVID vaccine mandate. NFIB v. OSHA , 142 S. Ct. 661,

662 (2022)

. And the COVID eviction moratorium

. Alabama

Association of Realtors v. HHS , 141 S. Ct. 2485, 2486 (2021)

. And a n attempted nationwide shift away from coal

- fired power

stations. West Virginia v. EPA , 142 S. Ct. 2587, 2614 (2022).

And efforts to build a wall at our southern border. See

P roclamation 9844, 84 Fed. Reg. 4949 ( Feb. 15

, 2019 )

(declaring an emergency at the southern border to get more

funding than Congress had appropriated)

. And net neutrality.

United States Telecom Association v. FCC

, 855 F.3d 381, 476

(D.C. Cir. 2017) (Kavana u gh, J, dissenting from denial of

rehearing en banc) ( “ Congress has debated net neutrality for13

many years, but Congress has never enacted net neutrality

legislation or clearly authorized the FCC to impose common

carrier obligations on Internet servi ce providers .”).

The point is not that any of those policies is good or bad.

The point is that the executive branch is acting when Congress

does not. That intrudes on Congress’s constitutionally

assigned role and disincentivizes it from legislating in the

future. Why would Congress bear the political costs of passing

laws when it can let bureaucrats shoulder them instead? See

Elena Kagan, Presidential Administration , 114 Harv. L. Rev.

2245, 2255

– 56 (2001) (Congress sometimes enacts “open

ended grants of power” in order to “pass on to another body

politically difficult decisions”).

I will not rehash here all the reasons why lawmaking by the

executive is problematic . I’ve written about it before

. America n Lung Association v. EPA , 985 F.3d 914, 996

– 97

(D.C. Cir. 2021) (Walker, J. concurring in part and dissenting

in part ), overruled by West Virginia , 142 S. Ct. at 2614. So

have many of our nation’s finest judges and scholars

. See, e.g.

, Baldwin v. United States , 140 S. Ct. 690, 691 (2020) (Thomas,

J., dissenting from denial of certiorari); Steven G. Calabresi et

al., The Rise and Fall of the Separation of Powers , 106 N w . L.

Rev. 527 , 545

– 46 (2012). And Madison before them. The

Federalist No. 48 (J. Madison)

. And Montesquieu before him

. 1 Montesquieu, The Spirit of the Laws 151

– 62 (Thomas Nugent

trans. 1777 )

.

2

T he Bureau’s rule turns law

- abiding bump

- stock owners

into criminals. But the Anglo

- American legal system has long

restricted the executive branch ’s power to creat e new crimes.

Crimes are made by legislation, not executive fiat.14

That principle has its roots in Magna Carta. After King

John used “summary process” to “arrest and imprison [ ]”

Englishmen on “administrative order[s],” English Barons

forced him to agree to a new set of limits on his power. J.C.

Holt, Magna Carta 276 (3d ed. 2015). Chief among those

limits was a commitment that “[n]o free man shall be arrested

or imprisoned

. . . except by the lawful judgment of his pee rs

or by the law of the land .” Magna Carta , Ch. 39 (1215). After

1215, the King could not punish an Englishman “without the

application of general rules to the case by a tribunal of [his]

peers.” Nathan S. Chapman & Michael W. McConnell, Due

Process as Separation of Powers , 121 Yale L.J. 1672, 1682

(2012). Those “general rules” were the “law of the land ,” the

“standing law that governed all of the King’s subjects in

England.” Id. No longer could the King impose criminal

punishment whenever it suited h is whims

.

Hard

- won by the English Barons, that right was cherished

by the American colonists

. It was their inheritance as

Englishmen. And w hen they enumerated the limits of a central

government in their new nation, the founders guarantee d that

“life, l iberty, or property ” may not be taken “ without due

process of law.” U.S. Const. Amend. V

.

That means that “our Government [must] proceed

. . . according to written constitutional and statutory provisions

. . . before depriving someone of life, liberty, or property.” Nelson

v. Colorado , 581 U.S. 128, 15 0 n.1 (2017) (Thomas, J.,

dissenting) (quotation marks omitted) ; see also Pacific Mutual

Life Insurance Co. v. Haslip , 4 99 U.S. 1, 28 (1991) (Scalia, J.,

concurring) (noting that the phrase “due p rocess of law” meant

“law of the land”). In other words, the executive branch may

prosecute only those criminal offenses that Congress has

authorized by law. The Due Process Clause “ was a separation

-15

of

- powers concept designed as a safeguard against unlic ensed

executive action, forbidding only deprivations not authorized

by legislation or common law. ” United States v. Vaello

Madero , 142 S. Ct. 1539, 1545 (2022) (Thomas, J., concurring)

(quotation marks omitted).

To Magna Carta’s guarantee of due process, the

Constitution added a second safeguard

— an independent

legislature, beholden in no way to the Executive . Article I’s

Vesting Clause makes clear that Congress alone has the

“legislative power.” U.S. Const. Art. I, § 1.

“Perhaps the most important consequence of th[at]

assignment concerns the power to punish. Any new national

laws restricting liberty require the assent of the people’s

representatives and thus input from the country’s ‘many parts,

interests and classes. ’” Wooden v. United States , 142 S. Ct.

1063, 1083 (2022) (Gorsuch, J., concurring) (quoting The

Federalist No. 51 (J. Madison))

. Indeed, since 1812, the

Supreme Court has said that Congress alone defines crimes and

fixes punishments. United States v. Hu dson & Goodwin , 11

U.S. (7 Cranch) 32, 34 (1812) (“ The legislative authority of the

Union must

. . . make an act a crime [and] affix a punishment

to it .”); see also United States v. Wiltberger , 18 U.S. (5 Wheat.)

76, 95 (1820) (Marshall, C.J.) (“[T]he powe r of punishment is

vested in the legislative

. . . department

. I t is the legislature

. . . which is to define a crime, and ordain its punishment

. ” )

.

Today, those safeguards are not what they used to be. In

the early 1900s, Congress began to delegate ope n

- ended

powers to executive agencies. Kagan, supra

, at 2255

. And by

the late 1940s, the Supreme Court would uphold any delegation

if Congress provided an intelligible principle to guide the

agency. Am erican Power & Light Co. v. SEC , 329 U.S. 90,

105 (1946); see also J.W. Hampton Jr. & Co. v. United States

,16

276 U.S. 394, 409 (1928) (coining the “intelligible principle”

phrase). Under the Supreme Court ’s light

- touch nondelegation

doctrine, it has upheld as a valid delegation a statute

“endow[ing] the nation’s chief prosecutor with the power to

write his own criminal code governing the lives of a half

million citizens.” Gundy v. United States

, 139 S. Ct. 2116,

2131 (2019) (Gorsuch, J., dissenting) ; cf. Touby v . United

States , 500 U.S. 160, 16 5

– 66 (1991) (it is an open question

whether “something more than an ‘intelligible principle’ is

required when Congress authorizes another Branch to

promulgate regulations that contemplate criminal sanctions”).

Whatever th e merits of that development, one safeguard

has not loosened. When Congress does delegate rulemaking

authority , the executive branch must remain faithful to the

statutory text. It may not use creative interpretation s to grab

for itself even more power. But the Bureau’s rule does just

that, stretching the text of the National Firearms Act to

criminalize conduct that Congress has not.

* * *

The day before the Bureau’s rule, o wning a bump stock was

legal . The day af ter, it carries a ten

- year prison sentence

— all

without Congress lifting a finger.

I would grant rehearing en banc to reestablish that the

power to make crimes stays where the Constitution put

it

— with Congress.