EXHIBIT 1

Cargill Opinion

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United States Court of Appeals

for the Fifth Circuit

No. 20-51016

Michael Cargill, 

Plaintiff—Appellant, 

versus

Merrick Garland, in his official capacity as U.S. Attorney General; 

United States Department of Justice; Steven 

Dettelbach, in his official capacity as Director of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives; Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, 

Defendants—Appellees. 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:19-CV-349

Before Richman, Chief Judge, and Jones, Smith, Stewart, 

Dennis, Elrod, Southwick, Haynes, Graves, Higginson, 

Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson,

Circuit Judges. 

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2023

Lyle W. Cayce

Clerk

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Jennifer Walker Elrod, Circuit Judge, joined by Richman, Chief 

Judge, and Jones, Smith, Stewart, Southwick, Haynes, 

Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, 

Circuit Judges:

∗

Since the National Firearms Act of 1934, federal law has heavily regulated machineguns. Indeed, as proposed, that law was known to many as “the 

Anti-Machine Gun Bill.” The possession or transfer of a machinegun was 

eventually banned through the Gun Control Act of 1968 and the Firearms 

Owners’ Protection Act of 1986. Today, possession of a machinegun is a federal crime, carrying a penalty of up to ten years’ incarceration.

This appeal concerns a regulation promulgated by the federal Bureau 

of Alcohol, Tobacco, Firearms, and Explosives, purporting to interpret the 

federal prohibition on machineguns as extending to bump stocks. A bump 

stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, 

enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not 

machineguns. ATF maintained this position for over a decade, issuing many 

interpretation letters to that effect to members of the public.

But ATF reversed its longstanding position in 2018, subjecting anyone 

who possessed a bump stock to criminal liability. ATF reversed its position 

to a great extent in response to the tragic events that occurred in Las Vegas 

∗ Of the sixteen members of our court, thirteen of us agree that an act of Congress 

is required to prohibit bump stocks, and that we therefore must reverse. Twelve members 

(Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, 

Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) 

reverse on lenity grounds. Eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reverse on the ground that 

federal law unambiguously fails to cover non-mechanical bump stocks.

Chief Judge Richman, Judge Stewart, and Judge Southwick concur in the judgment and join in Part V, as does Judge Ho, who also writes separately. 

Judge Oldham concurs in the judgment and joins in Parts I–IV.A. Judge Haynes 

only concurs in the judgment and writes separately.

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on October 1, 2017. On that day, a deranged gunman murdered dozens of 

innocent men and women, and injured hundreds more. To carry out this appalling crime, the gunman used many weapons and utilized many accessories—including bump stocks.

Public pressure to ban bump stocks was tremendous. Multiple bills to 

that effect were introduced in both houses of Congress. But before they could 

be considered in earnest, ATF published the regulation at issue here, shortcircuiting the legislative process. Appellant Michael Cargill surrendered several bump stocks to the Government following publication of the regulation 

at issue. He now challenges the legality of that regulation, arguing that a 

bump stock does not fall within the definition of “machinegun” as set forth 

in federal law, and thus that ATF lacked the authority to issue a regulation 

purporting to define the term as such.

Cargill is correct. A plain reading of the statutory language, paired 

with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” set forth in the Gun Control Act and National Firearms Act. 

But even if that conclusion were incorrect, the rule of lenity would still 

require us to interpret the statute against imposing criminal liability. A rich 

legal tradition supports the “well known rule” that “penal laws are to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–95

(1820). As Chief Justice Marshall explained long ago, the rule “is founded 

on the tenderness of the law for the rights of individuals; and on the plain 

principle that the power of punishment is vested in the legislative, not in the 

judicial department. It is the legislature, not the Court, which is to define a 

crime, and ordain its punishment.” Id. at 95.

The Government’s regulation violates these principles. As an initial 

matter, it purports to allow ATF—rather than Congress—to set forth the 

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scope of criminal prohibitions. Indeed, the Government would outlaw bump 

stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks 

at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it 

unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure 

that ambiguity, not the federal courts.

The definition of “machinegun” as set forth in the National Firearms 

Act and Gun Control Act does not apply to bump stocks. And if there were 

any doubt as to this conclusion, we conclude that the statutory definition is 

ambiguous, at the very least. The rule of lenity therefore compels us to construe the statute in Cargill’s favor. Either way, we must REVERSE.

I 

A 

The Gun Control Act of 1968 provides that “it shall be unlawful for 

any person to transfer or possess a machinegun.” 18 U.S.C. § 922(o)(1). The 

Act defines machinegun as follows:

The term “machinegun” means any weapon which shoots, is 

designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single 

function of the trigger. The term shall also include the frame or 

receiver of any such weapon, any part designed and intended 

solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and 

any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control 

of a person. 

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26 U.S.C. § 5845(b); see 18 U.S.C. § 921(a)(24) (incorporating the definition 

in the National Firearms Act). 

The traditional example of a machinegun1 is a rifle capable of automatic fire, like the M-16. Semi-automatic rifles like the AR-15 are not machineguns. See Hollins v. Lynch, 827 F.3d 436, 440 n.2 (5th Cir. 2016) (The 

M-16 “is capable of automatic fire, that is to say, firing more than one round 

per trigger-action. . . . The AR-15 is essentially a semi-automatic version of 

the M-16, that is to say, it fires only one round per trigger-action.”).

B 

To understand what a machinegun is, it is helpful to understand what 

a machinegun is not. To that end, the firing mechanism of a semi-automatic

weapon is especially important. The relevant parts are as follows: 

The trigger is the interface between the gun’s internal mechanism and 

the human finger. The sear is the trigger’s top-forward geometric plane, 

which locks snugly into a groove near the spring of the hammer. The hammer 

is the spring-loaded element that strikes the firing pin, causing ignition of the 

1 We spell machinegun as being one word because that is how Congress has defined 

the term in the statutes at issue here.

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charge and propulsion of the bullet. The disconnector is a part that sits on 

top of the trigger and serves to reset the hammer after a round is fired; this

resetting is what makes a semi-automatic weapon semi-automatic.

The mechanics of the firing process are as follows. First, the user pulls 

the trigger. Doing so disengages the hammer from the sear, allowing the 

spring to swing the hammer to strike the firing pin, which causes the charge 

to combust and propel the bullet. The firing of the bullet thrusts the bolt 

backward, which kicks the hammer into the disconnector on top of the stilldepressed trigger. When the trigger is reset, the hammer is pulled back into 

the cocked position and secured by the trigger’s sear as it slips off the disconnector. The user may then fire again by pulling the trigger, without having to 

manually re-cock the hammer. The mechanics are viewed below:

2

The end result is that the user of a semi-automatic firearm can fire 

rapidly by means of repeated use of the trigger. Critically, use of the trigger 

necessarily corresponds one-to-one with bullets fired. That is, a single pull 

of the trigger results in a single bullet fired. Without resetting the trigger, the 

disconnector cannot reset the hammer to the fully cocked position. And 

2 This figure is a stationary image taken from an animated graphic that moves to 

display the relevant motion. The moving image may be found here: https://www.ca5.

uscourts.gov/opinions/pub/20/20-51016_ar15.gif

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unless the hammer is fully cocked, it will not be able to strike the firing pin 

with sufficient force to discharge the weapon a second time. (When a weapon 

fails to fire for this reason, it is said to experience a “hammer follow” malfunction.) In sum, both the hammer and the trigger-disconnector must invariably return full circle before another round can be dispatched.

This process may be contrasted with a fully automatic gun, which is 

equipped with something called an “auto sear”—a device that serves to recock and release the hammer in tandem with the motion of the bolt for so 

long as the trigger remains depressed. In other words, the auto sear enables 

a pendulum swing of the hammer in sync with the bolt without any further 

input from the user; with one pull of the trigger, an automatic weapon can 

shoot continuously until ammunition is depleted.

C

The statutory definition of a machinegun also includes devices that 

convert an ordinary firearm into a machinegun. See United States v. Camp, 

343 F.3d 743 (5th Cir. 2003) (holding that a switch—which, if flipped, would 

cause a semi-automatic rifle to fire continuously—is a device that turns an 

ordinary firearm into a machinegun). The issue presented here is whether a 

bump stock is such a device.

A bump stock is an accessory that attaches to a semi-automatic

weapon and assists the shooter to engage in bump firing. Bump firing, in turn, 

is a technique whereby a shooter uses a firearm’s natural recoil to quickly 

reengage the trigger, resulting in an increased rate of fire. It is possible to 

bump fire an ordinary semi-automatic rifle without any assisting device, but 

a bump stock makes the technique easier.

A typical bump stock consists of a sliding shoulder stock molded to a 

grip, a trigger ledge where the shooter places his finger, and a detachable 

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rectangular receiver module that goes into the receiver well of the bump 

stock’s handle to guide the recoil of the weapon when fired. To begin bump 

firing, the shooter presses forward on the firearm’s forebody to bump into 

the trigger finger. The gun then slides back and forth, and the recoil energy 

forces the gun backward, re-engaging the trigger. The shooter maintains forward pressure on the gun’s forebody, again causing the trigger to bump into 

the trigger finger, maintaining fire. The firing process may be viewed as follows:3

In summary, a bump stock combines with a semi-automatic weapon to 

facilitate the repeated function of the trigger. To be sure, it makes the process faster and easier. But the mechanics remain exactly the same: the firing 

of each and every round requires an intervening function of the trigger. This 

does not alter the form of manual input that the user must provide to discharge the weapon. Without a bump stock or the use of an alternative bump 

technique, the user must provide manual input by pulling the trigger with the 

muscles of his trigger finger. With a bump stock, the shooter need not pull 

3 This figure is a stationary image taken from an animated graphic that moves to 

display the relevant motion. The moving image may be found here: https://www.ca5.

uscourts.gov/opinions/pub/20/20-51016_bump_fire_animation.gif

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and release his trigger finger. But the shooter must still apply forward pressure to the weapon’s forebody in order to maintain the shooting mechanism. 

Again, the manual input remains, even though its form changes.

We note one important distinction. Some bump stocks—called mechanical bump stocks—are equipped with springs or other internal mechanical devices that automatically assist the shooter to engage in bump firing. 

For such a bump stock, the shooter does not have to maintain pressure on the 

barrel and trigger ledge in order to maintain this firing sequence. Only nonmechanical bump stocks are at issue in this case.

D

Bump stocks were first invented in the early 2000s. Historically, ATF 

distinguished between mechanical and non-mechanical bump stocks in categorizing a particular accessory as a machinegun. This categorization is done 

through ATF’s Firearms Technology Branch, which is authorized to issue 

classification letters upon request from members of the public. See 26 U.S.C. 

§ 5841(c)(requiring firearm manufacturers and possessor to receive “authorization”); Bureau of Alcohol, Tobacco, Firearms and Explosives, National 

Firearms Handbook § 7.2.4 (setting forth the classification process). When 

ATF first considered mechanical bump stocks in 2006, it categorized them

as machineguns: “[A] device attached to a semiautomatic firearm that uses 

an internal spring to harness the force of a firearm’s recoil so that the firearm 

shoots more than one shot with a single pull of the trigger is a machinegun.” 

83 Fed. Reg. at 66514. ATF maintains that categorization.

But from the time ATF first considered non-mechanical bump stocks 

to 2017, it categorized that type of bump stock as not being a machinegun. In 

that time, the Firearms Technology Branch issued dozens of classification 

letters regarding non-mechanical bump stocks, each time arriving at the same 

conclusion. One letter from 2010 is illustrative:

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Dear [Applicant], This is in reference to your submission . . . 

asking for an evaluation of a replacement shoulder stock for an 

AR-15 type rifle. Your letter advises that the stock (referenced 

in this reply as a “bump-stock”) is intended to assist persons 

whose hands have limited mobility to “bump-fire” an AR-15 

type rifle. . . . The stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed. In order to use the installed device, 

the shooter must apply constant forward pressure with the 

non-shooting hand and constant rearward pressure with the 

shooting hand. Accordingly, we find that the “bump-stock” is 

a firearm part and is not regulated as a firearm under the Gun 

Control Act or the National Firearms Act.

However, bump-stock classification reached a point of inflection on 

October 1, 2017. On that day, a gunman murdered over 50 innocent men and 

women in Las Vegas, and injured 500 more. He used several weapons, many 

of which were equipped with extended magazines and bump stocks. These 

tragic events thrust bump stocks into the center of national attention.

Within ten days of the shooting, two bills prohibiting bump-stock devices were proposed in Congress. See Automatic Gunfire Prevention Act, H.R. 

3947, 115th Cong. (2017)4; To Amend Title 18, United States Code, To Prohibit 

the Manufacture, Possession, or Transfer of Any Part or Combination of Parts 

That is Designed and Functions to Increase the Rate of Fire of a Semi-automatic

Rifle, H.R. 3999, 115th Cong. (2017). While Congress debated the bills, ATF 

published a notice of proposed rulemaking, intending to reverse its previous 

interpretation that non-mechanical bump stocks are not machineguns for 

purposes of the National Firearms Act and Gun Control Act. Notice of Proposed Rulemaking, Bump-Stock-Type Devices, 83 Fed. Reg. 13442 (Mar. 29, 

4 An identical bill was proposed in the Senate. Automatic Gunfire Prevention Act, S. 

1916, 115th Cong. (2017).

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2018). Senator Diane Feinstein—who sponsored one of the bills mentioned 

above—expressed concern with the proposed rule:

Until today, the ATF has consistently stated that bump stocks 

could not be banned through regulation because they do not fall 

under the legal definition of a machine gun.

Now, the department has done an about face, claiming that 

bump stocks do fall under the legal definition of a machine gun 

and it can ban them through regulations. The fact that ATF 

said as recently as April 2017 that it lacks this authority gives 

the gun lobby and its allies even more reason to file a lawsuit to 

block the regulations.

Unbelievably, the regulation hinges on a dubious analysis 

claiming that bumping the trigger is not the same as pulling it. 

The gun lobby and manufacturers will have a field day with this 

reasoning. What’s more, the regulation does not ban all devices 

that accelerate a semi-automatic weapon[’]s rate of fire to that 

of a machine gun.

Both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks. The law has not 

changed since 1986, and it must be amended to cover bump 

stocks and other dangerous devices like trigger cranks. Our bill 

does this—the regulation does not.

Press Release, Sen. Dianne Feinstein, Feinstein Statement on Regulation to 

Ban Bump Stocks (Mar. 23, 2018). ATF continued with the rulemaking process, publishing the final rule later that year. Final Rule, Bump-Stock-Type 

Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018).5 The Final Rule purported to 

modify the definition of machinegun as follows:

5 Acting Attorney General Matthew Whitaker initially signed the Final Rule, but 

some questioned his authority to do so. In response, Attorney General William Barr ratified the Final Rule upon his being sworn into office. 84 Fed. Reg. 9239 (Mar. 14, 2019).

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A “machinegun,” “machine pistol,” “submachinegun,” or 

“automatic rifle” is a firearm which shoots, is designed to 

shoot, or can be readily restored to shoot, automatically more 

than one shot, without manual reloading, by a single function 

of the trigger. The term shall also include the frame or receiver 

of any such weapon, any part designed and intended solely and 

exclusively, or combination of parts designed and intended, for 

use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if 

such parts are in the possession or under the control of a person. For purposes of this definition, the term “automatically” 

as it modifies “shoots, is designed to shoot, or can be readily 

restored to shoot,” means functioning as the result of a selfacting or self-regulating mechanism that allows the firing of 

multiple rounds through a single function of the trigger; and 

“single function of the trigger” means a single pull of the trigger and analogous motions. The term “machinegun” includes 

a bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more than one shot with a single pull 

of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and 

continues firing without additional physical manipulation of 

the trigger by the shooter.

83 Fed. Reg. at 66553–54.

E

Plaintiff Michael Cargill lawfully acquired two non-mechanical bump 

stocks but surrendered them to ATF after passage of the Final Rule. He then 

sued ATF and other federal defendants, bringing several claims under the 

Administrative Procedure Act. First, he contends that ATF lacked authority 

to promulgate the Final Rule because its interpretation of machinegun conflicts with the unambiguous statutory definition. And even if the statute is 

ambiguous, Cargill says, it should be construed in his favor because of the 

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rule of lenity. And because the statute concerns criminal penalties, the Government’s interpretation is not entitled to deference under Chevron USA, 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Cargill 

also argues that the Final Rule constitutes an unconstitutional exercise of legislative power by an administrative agency. 

After a one-day bench trial, the district court entered judgment for the 

Government. Cargill v. Barr, 502 F. Supp. 3d 1163 (W.D. Tex. 2020). It 

declined to apply Chevron but found that the Government’s new interpretation of machinegun is the best reading of the relevant statute. The district 

court also rejected Cargill’s nondelegation claim. A panel of this court affirmed, concluding that the Final Rule’s interpretation of machinegun is the 

best reading of the statute, and declining to reach Chevron or the nondelegation question. Cargill v. Garland, 20 F.4th 1004 (5th Cir. 2021). We granted 

rehearing en banc, vacating the panel opinion. 37 F.4th 1091.

II

Three of our sister circuits have reviewed preliminary-injunction motions relating to the Final Rule. The issues engendered great disagreement, 

but each circuit that has addressed them agrees that the definition of machinegun within the National Firearms Act and Gun Control Act does not 

unambiguously mean what the Government says it means. Each circuit ultimately denied preliminary injunctive relief, and the Supreme Court denied 

each of the certiorari petitions. See, e.g., Guedes v. ATF, 140 S. Ct. 789, 791

(2020) (Gorsuch, J., statement respecting denial of certiorari) (“Despite 

these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review.”).

A divided D.C. Circuit panel determined that the Final Rule is ambiguous, but applied Chevron deference to the Government’s statutory interpretation. Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019). The dissent contended

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that the Final Rule contradicts the statute’s plain meaning. Id. at 35 (Henderson, J., concurring in part and dissenting in part). Although the Supreme 

Court denied certiorari, 140 S. Ct. 789 (2020), one Justice wrote separately 

to explain his view that Chevron does not apply because (i) the Government 

had expressly waived its application, (ii) it does not apply to regulations bearing criminal sanctions, and (iii) the Final Rule directly contradicts the Government’s previous interpretation. Id. at 789–91 (Gorsuch, J., statement respecting denial of certiorari).

In another divided opinion, the Tenth Circuit reached the same conclusion as the D.C. Circuit: that the Final Rule was ambiguous and entitled 

to Chevron deference. Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020); see id. 

at 991 (Carson, J., dissenting). The court initially granted rehearing en banc, 

vacating the panel decision, 973 F.3d 1151 (10th Cir. 2020) (en banc), but 

later vacated the order as improvidently granted, reinstating the former opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021) (en banc), cert denied sub nom. Aposhian v. Garland, 143 S. Ct. 83 (2022). Three dissents were 

written, each of which was joined by five of the eleven participating judges. 

The first dissent would have held that (i) the statute unambiguously does not 

apply to bump stocks, (ii) Chevron does not apply either because the Government waived it or because it does not apply in the criminal context, and (iii) 

the Final Rule may violate nondelegation principles. Id. at 891–903 (Tymkovich, C.J., dissenting); see also id. at 903–04 (Hartz, J., dissenting); id. at 

904–06 (Eid, J., dissenting); id. at 906–08 (Carson, J., dissenting).

Finally, in yet another divided opinion, a Sixth Circuit panel ruled 

against the Government, declining to apply Chevron deference and holding 

the statutory definition of machinegun does not include bump stocks. Gun 

Owners of America, Inc. v. Garland, 992 F.3d 446, 450 (6th Cir. 2021); but see 

id. at 475-92 (White, J., dissenting) (arguing that Chevron applies and that the 

Government’s interpretation is reasonable). The court granted rehearing en 

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banc, 2 F.4th 576 (6th Cir. 2021) (en banc), and an evenly-divided court affirmed the district court’s denial of the preliminary injunction. 19 F.4th 890 

(6th Cir. 2020), cert denied, 143 S. Ct. 83 (2022).

In addition to these circuit decisions, the Navy-Marine Corps Court 

of Criminal Appeals considered the Final Rule in the context of a criminal 

prosecution for possession of a machinegun. See United States v. Alkazahg, 

81 M.J. 764, 780–81 (N–M. Ct. Crim. App. 2021). That court determined 

that, under the best reading of the statutory language, a bump stock is not a 

machinegun. But it ultimately found that the statute is ambiguous and applied the rule of lenity to construe the statute against imposing criminal liability. It dismissed the charge for possession of a machinegun.

III

Our primary task is to interpret the meaning of machinegun as defined 

in 26 U.S.C. § 5845(b). Of course, the Government has sponsored its own 

interpretation, as expressed in the Final Rule. Ordinarily, that action would 

invoke the two-step Chevron framework. As we recently summarized, “[a]t 

step one, we ask whether Congress has directly spoken to the precise question at issue, in which case we must give effect to the unambiguously expressed intent of Congress and reverse an agency’s interpretation that fails 

to conform to the statutory text.” Huawei Technologies USA, Inc. v. FCC, 2 

F.4th 421, 433 (5th Cir. 2021) (quotations omitted). 

But here, the Government has declined to invoke Chevron in any of 

the lawsuits challenging the Final Rule. Nonetheless, several circuits have 

applied Chevron deference to challenges of the Final Rule, and so we will consider Chevron’s applicability below. But before we do, we determine the statute’s meaning using traditional statutory-interpretation tools. That is, “the 

old-fashioned way.” Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari); see also Guedes, 920 F.3d at 42 (Henderson, J., 

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concurring in part and dissenting in part); Aposhian, 989 F.3d at 898 (Tymkovich, C.J., dissenting). If the statute is unambiguous, it does not matter 

whether Chevron applies. See, e.g., Western Refining Southwest, Inc. v. FERC, 

636 F.3d 719, 727 (5th Cir. 2011) (“[If] the statute’s text is unambiguous, we 

need not proceed to Step Two of Chevron.”).

Recall that in this circumstance, Congress has defined machinegun to 

mean “any weapon which shoots . . . automatically more than one shot . . . by 

a single function of the trigger,” or any accessory that allows a firearm to 

shoot in that manner. 26 U.S.C. § 5845(b). The parties dispute whether the 

fire created by a semi-automatic rifle equipped with a non-mechanical bump 

stock is produced both “automatically” and “by single function of the trigger.” We address those components in reverse order.6

A 

The first phrase we consider is “by a single function of the trigger.” 

At the time the statute was passed, “function” meant “action.” Webster’s 

New International Dictionary 1019 (2d ed. 1934); see Guedes, 920 F.3d at 43 

(Henderson, J., concurring in part and dissenting in part); Aposhian, 989 F.3d 

at 895 (Tymkovich, C.J., dissenting). Thus, the relevant question is whether 

6 Cargill also argues that the Final Rule is void because it is a legislative rule—as 

opposed to an interpretive rule—and because relevant federal law does not authorize ATF 

to issue such a rule. We assume arguendo that the Final Rule is legislative in nature and that 

ATF is authorized to issue such a rule. First, if the rule were interpretive in nature, it would 

not be eligible for Chevron deference. United States v. Mead Corp., 533 U.S. 218, 232 (2001). 

But as explained infra, three independent reasons demand that we not defer to the Government here. Second, if ATF were not authorized to promulgate legislative rules, the rule at 

issue would be void. Ultimately, however, we conclude that the Government’s interpretation is inconsistent with the statutory definition, so ATF lacked authority to issue the Final 

Rule. We therefore need not consider Cargill’s additional argument that the Final Rule is 

a legislative rule.

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a semi-automatic rifle equipped with a non-mechanical bump stock fires 

more than one shot each time the trigger “acts.”

It does not. As illustrated above, a semi-automatic weapon utilizes a 

simple mechanical process: the trigger disengages the hammer from the sear, 

the hammer strikes the firing pin, the bullet fires, and the recoil pushes the 

hammer against the disconnector, which resets the trigger. This process happens every single time one bullet is fired. To be sure, a non-mechanical bump 

stock increases the rate at which the process occurs. But the fact remains 

that only one bullet is fired each time the shooter pulls the trigger.

The Government contends that “single function of the trigger” 

means “a single pull of the trigger and analogous movements.” 83 Fed. Reg. 

at 66553. That is, according to the Government, “function” means “pull.” 

But that argument fails on its face because a shooter still pulls the trigger of a 

semi-automatic weapon equipped with a non-mechanical bump stock each 

time he or she fires a bullet. Without a bump stock, the trigger activates because the shooter flexes his or her finger; with a bump stock, the trigger activates because the recoil of the previous shot re-engages the trigger and the 

shooter’s maintained force on the gun’s forebody bumps the trigger against 

the shooter’s finger. This is a distinction without a difference—the end result in both cases is that the trigger is pulled. See Guedes, 920 F.3d at 48 

(Henderson, J., concurring in part and dissenting in part) (“A semiautomatic

rifle shoots a single round per pull of the trigger and the bump stock changes 

only how the pull is accomplished.”); Gun Owners of America, 992 F.3d at 

469–73, vacated, 2 F.4th 576. Even if “single function” meant “single pull,” 

the definition would still not include a non-mechanical bump stock. Moreover, even though pulling the trigger can sometimes begin the bump firing sequence, the process is more typically begun by pushing forward on the forebody of the firearm.

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For several of our sister circuits, however, the plain language is not so 

plain. They reason that single function of the trigger “could mean ‘a single 

pull of the trigger from the perspective of the shooter.’” Guedes, 920 F.3d at 

29; see also Gun Owners of America, 19 F.4th at 905 (White, J., in support of 

affirmance). Considering the definition of “function,” one court understood 

the issue as such: “[T]hat definition begs the question of whether ‘function’ 

requires our focus upon the movement of the trigger, or the movement of the 

trigger finger. The statute is silent in this regard.” Aposhian, 958 F.3d at 986. 

According to that logic, for a semi-automatic rifle equipped with a non-mechanical bump stock, the act of pulling the trigger—which begins the bump 

firing sequence—is a single pull for purposes of the Gun Control Act and 

National Firearms Act.

The problem with that interpretation is that it is based on words that 

do not exist in the statute. The statute “uses ‘single function of the trigger,’ 

not single function of the shooter’s trigger finger.” Guedes, 920 F.3d at 48 

(Henderson, J., concurring in part and dissenting in part); see also Aposhian, 

989 F.3d at 895 (Tymkovich, C.J., dissenting) (“The statute speaks only to 

how the trigger acts, making no mention of the shooter.”). The Navy-Marine 

Corps Court of Appeals likewise refused to read words into the statute:

The best read implies that the shooter initiates the trigger function by some action, such as pulling the trigger—or it could be 

by just pushing a button—and it is the follow-on action where 

the trigger acts out its mechanical design or purpose that 

speaks to the “function of the trigger.” The statute does not 

say “by a single function of the trigger finger” nor does it say 

“by a single pull of the trigger in addition to external pressure 

from the shooter’s non-firing hand.” . . . . Had Congress 

wanted to use the phrase “by a single pull of the trigger” for

machine guns, it could have. But it did not. 

Alkazahg, 81 M.J. at 780–81.

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We agree. The statutory definition of machinegun utilizes a grammatical construction that ties the definition to the movement of the trigger itself, 

and not the movement of a trigger finger. Nor do we rely on grammar alone. 

Context firmly corroborates what grammar initially suggests by demonstrating that Congress knew how to write a definition that is keyed to the movement of the trigger finger if it wanted to. But it did not. The Government 

offers nothing to overcome this plain reading, so that we are obliged to conclude that the statutory definition of machinegun unambiguously turns on the 

movement of the trigger and not a trigger finger. 

 Grammar rejects a reading based on the shooter’s perspective. Each 

component of the statutory definition supports the mechanical perspective, 

not a shooter’s perspective. Again, the definition reads as follows: 

“[M]achinegun means . . . any weapon which shoots . . . automatically more 

than one shot . . . by a single function of the trigger.” 26 U.S.C. § 5845(b). 

The subject of the sentence, of course, is machinegun. The linking verb means

connects the subject to the subject complement—weapon. Next, the adjectival phrase which shoots modifies weapon. The adverbial phrase automatically 

more than one shot then modifies shoots. Finally, two prepositional phrases 

follow. The first, by a single function, modifies the adverbial phrase. The second, of the trigger, modifies the first prepositional phrase. See also Guedes, 920 

F.3d at 44 n.13 (Henderson, J., concurring in part and dissenting in part) (diagramming the statutory definition).

The first thing to note is that the ultimate subject is machinegun, and 

the subject complement is weapon. In other words, a machinegun is defined 

by reference to what kind of weapon it is. But identifying the subject of the 

sentence is only our first step. We next look, second, to the fact that the term 

weapon is defined by how it shoots. So, again, the definition refers to the device being made to shoot, not the person or thing doing the shooting. Third, 

the manner of shooting must be automatic. Fourth—and critically—the 

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prepositional phrases define the firing process’s requirements from a mechanical perspective. The process must occur by a single function, and the 

single act must be by the trigger. In short, there is no mention of a shooter. 

The grammatical structure continuously points the reader back to the mechanics of the firearm. The statute does not care what human input is required to activate the trigger—it cares only whether more than one shot is 

fired each time the trigger acts.

We do not stop with the grammar. With statutes, “[c]ontext is a primary determinant of meaning. Antonin Scalia & Bryan A. Garner, Reading 

Law: The Interpretation of Legal Texts 167 (2012). So, we look next to context

for further clues. And context confirms that the statute must be read from 

the mechanical perspective. Specifically, context tells us that Congress knew 

how to write a definition that explicitly turns on the action of a shooter rather 

than the action of a trigger, but chose not to do so here. Immediately following the definition of machinegun provided in 26 U.S.C. § 5845(b), Congress 

defined the term “rifle” to mean a weapon designed “to use the energy of 

the explosive in a fixed cartridge to fire only a single projectile through a rifled 

bore for each single pull of the trigger.” § 5845(c) (emphasis added). The statute next defines “shotgun” to mean a weapon designed “to use the energy 

of the explosive in a fixed shotgun shell to fire through a smooth bore either 

a number of projectiles (ball shot) or a single projectile for each pull of the trigger.” Id. § 5845(d) (emphases added). “[W]here the document has used one 

term in one place, and a materially different term in another, the presumption 

is that the different term denotes a different idea.” Reading Law at 170. 

To summarize, the definition of machinegun must turn on the action 

(or “function”) of the trigger because no other actor is mentioned or implied. 

This conclusion is only strengthened by the fact that other definitions within 

the same statutory provision explicitly turn on the action of a shooter, showing that Congress knew how to write a definition that proceeds from a 

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shooter’s perspective, rather than a mechanical one, if it had wanted to. The 

notion that the definition turns on the action of an unnamed shooter is inconsistent with both the grammatical and statutory contexts. 

The Government says that this straightforward interpretation defies 

common sense. It would not have been prudent for Congress to “zero[] in 

on the mechanistic movement of the trigger,” the Government says, because 

the problem sought to be remedied was “the ability to drastically increase a 

weapon’s rate of fire.” Aposhian v. Barr, 374 F. Supp. 3d 1145, 1152 (D. Utah 

2019)). Perhaps Congress’s choice of words was prudent, or perhaps it was 

not. That is not for us to decide. But the Government’s objection only accentuates the fact that Congress did not use words describing the shooter’s 

perspective or the weapon’s rate of fire. See Alkazahg, 81 M.J. at 781 (“Congress could have suggested that a shooter-focused approach or even a rateof-fire approach was the way to read the statute by enacting those words. 

Even the term ‘machine gun’ suggests a mechanical approach where the 

shooter interaction is extremely limited.”). Instead, it made up an entirely 

new phrase—by a single function of the trigger—that specifically pertains to 

the mechanics of a firearm. Prudent or not, Congress defined the term “machinegun” by reference to the trigger’s mechanics. We are bound to apply 

that definition as written.7

7 Although our reasoning is independently sufficient to support our conclusion, the 

application of corpus linguistics only provides further support. A search in the Corpus of 

Historical American English, which contains more than 100,000 individual texts from the 

1820s–2010s and more than 475 million words, shows zero usage of the phrase “function 

of the trigger,” “function of a trigger,” “function of triggers,” or “function of the triggers.” Corpus of Historical American English, English Corpora, https://www.english-corpora.org/coha/. Similarly, a search in the News on the Web Corpus (NOW Corpus), 

which contains more than 16 billion words from more than 27 million online texts from 

2010 to present day, shows only 24 uses of the phrase “function of the trigger”—all of 

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The Government also points to our decision in United States v. Camp, 

arguing that it controls here. 343 F.3d 734. It does not. But to the extent

Camp applies, it supports Cargill’s position. The issue presented in Camp 

was whether something other than the metal lever that ordinarily begins the 

firing process can be a “trigger” for purposes of the Gun Control Act and 

National Firearms Act. The defendant there modified a semi-automatic rifle, 

building a switch behind the original trigger that, when pulled, “supplied 

electrical power to a motor connected to the bottom of a fishing reel that had 

been placed inside the weapon’s trigger guard; the motor caused the reel to 

rotate; and that rotation caused the original trigger to function in rapid succession.” 343 F.3d at 744. We held that the weapon was a machinegun even 

though the gun’s original trigger activated each time a bullet was fired. That 

was so because the gun had been modified such that it had a new trigger. As 

we held in United States v. Jokel, 969 F.2d 132, 135 (5th Cir. 1992), a trigger 

is just the “mechanism . . . used to initiate the firing sequence.” The mechanism used to initiate the firing sequence in Camp was the new switch. That 

switch operated by a single function, and so the firearm met the statutory 

definition of a machinegun. Camp, 343 F.3d at 745.

Here, no party cites Camp for the proposition that the legally relevant 

trigger is anything other than the traditional trigger. And for good reason. 

All a non-mechanical bump stock does is allow the shooter to fire at an increased rate by harnessing a weapon’s natural recoil to re-engage the trigger, 

which are from news sources directly quoting a firearm statute; there were zero uses of the 

phrase “function of a trigger,” “function of triggers,” or “function of the triggers.” NOW 

Corpus, English Corpora, https://www.english-corpora.org/now/. The upshot is that the 

phrase “by a single function of the trigger” is a novel phrase created by Congress specifically to be used in these firearm statutes. The Government stresses the existence of other 

ordinary phrases, like “pull of the trigger.” Perhaps these ordinary phrases exist, but Congress did not use them here.

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and by using the shooter’s maintained forward force. The case might well be 

different if we were considering a semi-automatic weapon equipped with a 

mechanical bump stock. It could be the case that a switch activating a mechanical bump stock would be the legal trigger. But we are not considering 

that case.

8 Here, the definition of “trigger” is not in dispute. If anything,

Camp supports our conclusion because the trigger at issue in this case is different in kind from the trigger at issue there.

B

Even if a non-mechanical bump stock caused a semi-automatic rifle to 

operate by a single function of the trigger, the rifle would still need to operate 

automatically in order to be a machinegun.

9 All generally agree that here, 

automatically means “self-acting.” Oxford English Dictionary at 574 (1933)

(“[s]elf-acting under conditions fixed for it, going of itself”); see also Cargill, 

20 F.4th at 1012; Guedes, 920 F.3d at 30; id. at 43 (Henderson, J. concurring 

in part and dissenting in part); Aposhian, 958 F.3d at 986; Aposhian, 989 F.3d 

at 895 (Tymkovich, C.J., dissenting); Gun Owners of America, 19 F.4th at 

8 The Government points to an unpublished Eleventh Circuit case—which held 

that a mechanical bump stock called the Akins Accelerator is a machinegun for purposes of 

federal law—as support for its argument that non-mechanical bump stocks operate by a 

single function of the trigger. See Akins v. United States, 312 F. App’x 197, 200 (11th Cir. 

2009). But that evidence cuts in the other direction. Unlike non-mechanical bump stocks, 

a shooter using an Akins Accelerator need only pull the trigger once to activate the firing 

sequence. The mechanical bump stock then maintained the bump fire of its own accord. 

See 83 Fed. Reg. at 66517. Precisely for that reason, our decision today would not apply to 

an Akins Accelerator.

9 As explained above, because a semi-automatic firearm equipped with a non-mechanical bump stock does not operate “by a single function of the trigger,” such a weapon 

is not a machinegun, and we must render judgment for Cargill. Our conclusions in Parts 

III.B and V are each independent, alternative holdings. In the Fifth Circuit, “alternative 

holdings are binding precedent and not obiter dictum.” Jarkesy v. SEC, 34 F.4th 446, 459 

n.9 (5th Cir. 2022) (quotation omitted).

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905–06 (White, J., in support of affirmance); id. at 912–13 (Murphy, J., in 

opposition to affirmance). But the parties dispute whether the firing process 

enabled by a non-mechanical bump stock is self-acting.

It is not. As an initial matter, we must remember that the phrase “by 

a single function of the trigger” modifies the adverb “automatically.” Thus, 

the condition is satisfied only if it is the trigger that causes the firearm to shoot 

automatically. See Guedes, 920 F.3d at 43 (Henderson, J., concurring in part 

and dissenting in part) ( “‘Automatically’ cannot be read in isolation. On the 

contrary, it is modified—that is, limited—by the clause ‘by a single function 

of the trigger.’”); Aposhian, 989 F.3d at 896 (Tymkovich, C.J., dissenting). 

That is not how a bump stock works. Bump firing does not maintain if all a 

shooter does is initially pull the trigger. Rather, to continue the firing after 

the shooter pulls the trigger, he or she must maintain manual, forward pressure on the barrel and manual, backward pressure on the trigger ledge. 

The Government argues that, taken together, those actions create automatic fire. But Cargill would prevail even if that were true because those 

actions are not “a single function of the trigger.” For example, the ATF’s 

treatment of the Ithaca Model 37 “slam fire” shotgun confirms that bump 

stocks do not enable automatic fire. With the Model 37, a shooter can pull 

the trigger once and hold it. Then, after each pump with the shooter’s nontrigger hand, a new shell is loaded and immediately discharged. According 

to the ATF, the Model 37 fires multiple shots by a single function of the trigger, but it does not do so automatically because the shooter must manually 

pump the shotgun with his non-trigger hand. See 83 Fed. Reg. at 66,534. By 

this same logic, a rifle equipped with a non-mechanical bump stock does not 

fire automatically because the shooter must manually apply forward pressure 

on the barrel with his or her non-trigger hand.

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The Government recognizes this logic but argues that it proves too 

much. After all, the Government says, to operate a traditional automatic rifle, the shooter must pull and hold the trigger to fire more than one round. 

No one doubts that a traditional automatic weapon is a machinegun for purposes of federal law. And so it cannot be that a process is not automatic 

simply because it requires sustained input. See Guedes, 920 F.3d at 31; 

Aposhian, 958 F.3d at 987. 

That argument makes the same mistake as before: it untethers “single 

function of the trigger” from “automatically.” Restated, the statute requires 

that a machinegun be capable of firing automatically once the trigger performs 

a single function. An automatic weapon satisfies this requirement because 

the act of pulling and holding the trigger is one function, and that function 

produces more than one shot. That force must be maintained on the trigger 

does not change this conclusion. Stated succinctly:

[A] gun shoots automatically by a single function of the trigger 

as long as the shooter need only manually cause the trigger to 

engage in a “single” function in order to fire multiple shots . . .

So a typical machine gun qualifies even though the shooter 

pulls the trigger and keeps it pressed down because that combined external influence still does no more than result in one 

action of the trigger.

Gun Owners of America, 19 F.4th at 915 (Murphy, J., in opposition to affirmance); see also Guedes, 920 F.3d at 44 (Henderson, J., concurring in part and 

dissenting in part) (“The statutory definition of machinegun does not include a firearm that shoots more than one round automatically by a single pull 

of the trigger and then some (that is, by constant forward pressure with the 

non-trigger hand).”) (internal quotation marks omitted and emphasis omitted). As understood by the Navy-Marine Corps Court of Appeals:

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It is incorrect to equate the holding of the trigger in an automatic weapon with the holding of the trigger and the forward 

motion in a semi-automatic weapon equipped with a bump 

stock. That is because the former is shooting automatically by

a single function of the trigger, while the latter is relying on an 

additional human action beyond the mechanical self-acting and 

impersonal trigger function. 

Alkazahg, 81 M.J. at 782–83.

We reiterate that a shooter can bump fire an ordinary semi-automatic 

rifle even without a bump stock. But nobody, not even the Government, contends that semi-automatic rifles are machineguns. That concession damns 

the Government’s position. As Cargill recognizes, if ordinary bump firing 

constituted automatic fire, the Final Rule would “convert a semiautomatic 

weapon into a machinegun simply by how a marksman used the weapon.” 

That absurd result reveals the flaw in the Government’s line of reasoning.

In addition to implying absurd results, the Government’s position is 

quite telling. It would allow the use of semi-automatic rifles, which can bump 

fire, but prohibit the use of non-mechanical bump stocks, even though there 

is no mechanical difference between the two forms of gunfire. Rather, the 

meaningful difference is that, with a non-mechanical bump stock, bump firing 

is easier and can occur at a faster rate. That is a distinction Congress certainly 

could have addressed in the National Firearms Act and Gun Control Act. 

But Congress did not prohibit machineguns according to how quickly they 

fire. It prohibited machineguns according to the way that they fire. And semiautomatic weapons do not fire “automatically,” even when equipped with a 

non-mechanical bump stock.

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* * *

The definition of machinegun as set forth in the Gun Control Act and 

National Firearms Act establishes two conditions that must obtain in order 

for a weapon to qualify. The weapon must operate “automatically” and “by 

single function of the trigger.” According to the statute’s unambiguous language, neither condition obtains as applied to a semi-automatic rifle equipped 

with a non-mechanical bump stock. The failure of either condition is sufficient to entitle Cargill to judgment.

IV 

As introduced above, several of our sister circuits applied Chevron to 

challenges to this Final Rule, even though no party requested its application. 

Because we hold that the statute is unambiguous, Chevron deference does not 

apply even if the Chevron framework does. See Western Refining Southwest, 

636 F.3d at 727. But if the statute were ambiguous, Chevron would not apply 

for any of the three reasons explained below. 

A 

First, Chevron does not apply for the simple reason that the Government does not ask us to apply it. Indeed, the Government affirmatively argued in the district court that Chevron deference is unwarranted. As other 

jurists have recognized in this context, that means that the Chevron argument 

has been waived—not merely forfeited. United States v. Olano, 507 U.S. 725, 

733 (1993) (“Whereas forfeiture is the failure to make the timely assertion of 

a right, waiver is ‘the intentional relinquishment or abandonment of a known 

right.’”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); Guedes, 920

F.3d at 21 (“To the extent Chevron treatment can be waived, we assume that 

the government’s posture in this litigation would amount to a waiver rather 

than only a forfeiture.”); Aposhian, 989 F.3d at 897 (“[W]hen a party chooses 

not to pursue a legal theory potentially available to it, we generally take the 

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view that it is ‘inappropriate’ to pursue that theory in our opinions.”) (internal citation and quotation marks omitted) (Tymkovich, C.J., dissenting).

That would seem to be the end of the inquiry, but we recognize that 

one of our sister circuits has held that Chevron cannot be waived. Guedes, 920 

F.3d at 21–23; see also Gun Owners of America, 19 F.4th at 899 n.5 (White, J., 

in support of affirmance). To be sure, we have never held in a published case 

that Chevron must be raised by the Government in order to apply. See Albanil 

v. Coast 2 Coast, Inc., 444 F. App’x 788, 796 (5th Cir. 2011). But the conclusion is obvious, and flows from well-settled waiver principles. After all, that 

a court should defer to the Government’s expressed interpretation is just a 

legal argument, and a party waives a legal argument if it fails to raise the argument when presented with the opportunity. See, e.g., Sindhi v. Raina, 905 

F.3d 327, 334 (5th Cir. 2018); Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743,

747 (5th Cir. 2011).

As explained in the Tenth Circuit’s consideration of the Final Rule, 

“We refuse to consider arguments a party fails to make because we ‘depend 

on the adversarial process to test the issues for our decision’ and are concerned ‘for the affected parties to whom we traditionally extend notice and 

an opportunity to be heard on issues that affect them.’” Aposhian, 989 F.3d 

at 897 (Tymkovich, C.J., dissenting) (quoting Hydro Resources, Inc. v. EPA, 

608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en banc)); see also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of 

legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”). We must not defer to the 

Government’s interpretation here for the simple reason that no party argues 

that we should.

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If ordinary waiver principles were not enough, we note also that it 

would contradict Chevron’s central justification to defer to the Government’s 

interpretation without its urging us to do so. The justification is that “‘policy 

choices’ should be left to executive branch officials ‘directly accountable to 

the people.”’ Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting 

denial of certiorari) (quoting Epic Systems v. Lewis, 138 S. Ct. 1612, 1630 

(2018) and Chevron, 467 U.S. at 865)). Here, the Government made a clear 

policy choice by declining to seek Chevron deference. The very interest underlying Chevron demands that we respect the Government’s choice and interpret the statute according to traditional principles of statutory interpretation. See Aposhian, 989 F.3d at 898 (“If the agency disavows any reliance on 

Chevron, who are we to second-guess it?”) (Tymkovich, C.J., dissenting); 

Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (“[C]ourts must equally respect the Executive’s decision not to make 

policy choices in the interpretation of Congress’s handiwork.”).

Raising the issue sua sponte, the D.C. Circuit assumed that the Government’s actions were consistent with waiver, but held that Chevron cannot 

be waived. As an initial matter, that conclusion is likely inconsistent with 

Supreme Court precedent. Our highest Court “has often declined to apply 

Chevron deference when the government fails to invoke it.” Guedes, 140 S. 

Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari) (collecting 

cases); see, e.g., HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels 

Ass’n, 141 S. Ct. 2172, 2180 (2021) (“[T]he government is not invoking Chevron. We therefore decline to consider whether any deference might be due 

its regulation.”) (quotation omitted).

The argument against waiver is based on the premise that Chevron is 

a standard of review. Guedes, 920 F.3d at 163; see also Gun Owners of America, 

992 F.3d at 477–78, vacated, 2 F.4th 576. It is certainly true that parties in 

litigation cannot waive the applicable standard of review. E.g., United States 

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v. Escobar, 866 F.3d 333, 339 n.13 (5th Cir. 2017) (quotation omitted). But 

Chevron is not a standard of review. The APA specifically sets forth standards by which courts must review agency actions—arbitrary and capricious, 

abuse of discretion, in excess of statutory authority, and so on. See 5 U.S.C. 

§ 706. Chevron is merely a legal argument that the Government can make to 

contend that its interpretation satisfies the relevant standard of review.10

B

The Chevron framework does not apply for a second, independent reason: the statute which the Final Rule interprets imposes criminal penalties. 

As noted above, the primary reason for Chevron is that it allows the executive 

branch to make policy decisions through the accrued expertise of administrative agencies. But in exchange, Chevron deference shifts the responsibility 

for lawmaking from the Congress to the Executive, at least in part. That 

tradeoff cannot be justified for criminal statutes, in which the public’s entitlement to clarity in the law is at its highest. See Guedes, 140 S. Ct. at 790

(Gorsuch, J., statement respecting denial of writ of certiorari) (“Before 

courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct.”); Esquivel-Quintana v. 

10 The Tenth Circuit has also held that a plaintiff’s invocation of Chevron—even if 

made for the purpose of disputing the Government’s interpretation of a statute, and absent 

argument from the Government that Chevron should apply—is sufficient to require a court 

to apply the framework. Aposhian, 958 F.3d at 981–82. We respectfully disagree with that 

conclusion. Chevron’s purpose is to recognize the institutional competence of executive 

agencies and to defer to their expertise where appropriate. It would be inconsistent with 

that purpose to apply Chevron over the Government’s objection just because a plaintiff 

preemptively addresses the framework in an attempt to defend against the Government’s 

sponsored interpretation. See Aposhian, 989 F.3d at 896 (Tymkovich, C.J., dissenting) 

(“This theory of waiver is untenable. Under the panel majority’s theory, a party that challenges an agency’s interpretation of a rule is forced to dance around Chevron, even where 

the government has not invoked it. Chevron becomes the Lord Voldemort of administrative 

law, ‘the-case-which-must-not-be-named.’”).

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Lynch, 810 F.3d 1019, 1027 (6th Cir. 2016) (Sutton, J., concurring in part and 

dissenting in part) (Applying Chevron to criminal statutes would “permit the 

aggregation” of executive and legislative power “in the one area where its 

division matters most: the removal of citizens from society.”).

No precedent compels Chevron’s application here. To the contrary,

the Supreme Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U.S. 359, 

369 (2014); see also Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155 (10th Cir. 

2016) (“The Supreme Court has expressly instructed us not to apply Chevron 

deference when an agency seeks to interpret a criminal statute.”) (Gorsuch, 

J., concurring). That is so because “criminal laws are for the courts, not for 

the Government, to construe.” Abramski v. United States, 573 U.S. 169, 191 

(2014). For this reason, when “the Government interprets a criminal statute 

too broadly . . . or too narrowly . . . a court has an obligation to correct its error.” Id. We must not apply Chevron where, as here, the Government seeks 

to define the scope of activities that subject the public to criminal penalties. 

This is precisely the position we have taken before, in an unpublished decision. United States v. Garcia, 707 F. App’x 231, 234 (5th Cir. 2017) (“The 

Supreme Court has now resolved this uncertainty, instructing that no deference is owed to agency interpretations of criminal statutes.”).

Several of our sister circuits disagree, however. See Guedes, 920 F.3d 

at 163–67; Aposhian, 958 F.3d at 982–84. The disagreement stems from one 

paragraph in the decision Babbitt v. Sweet Home Chapter of Communities for a 

Great Oregon, 515 U.S. 687 (1995). There, the Supreme Court considered a 

Department of the Interior regulation that interpreted the Endangered Species Act’s criminal prohibition on “taking” an endangered species as including modification of the species’s habitat. The Court did not conduct a Chevron analysis, but upheld the regulation, concluding that it “owe[d] some degree of deference [to] the [DOI’s] reasonable interpretation,” in part because 

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of the “latitude the ESA gives to [DOI] in enforcing the statute.” Id. at 703. 

It also declined to apply the rule of lenity, reasoning that an administrative 

regulation does not necessarily invoke the rule just because “the governing 

statute authorizes criminal enforcement.” Id. at 704 n.18.

Several courts cite Babbitt for the proposition that the Chevron framework applies with equal force to criminal regulations and displaces the rule of 

lenity, but it does not support that conclusion. “While Babbitt certainly cited 

Chevron and used the word deference with regard to the DOI’s interpretation, Babbitt did not discuss or decide whether Chevron applied nor did it analyze the challenge using Chevron, just as it did not decide whether the rule 

of lenity applied or analyze the challenge using the rule of lenity.” Gun Owners of America, 992 F.3d at 457, vacated, 2 F.4th 576. As explained by two 

members of the Supreme Court, Babbitt did not purport to set forth a general 

rule respecting the interpretation of criminal regulations: “The best that one 

can say . . . is that in Babbitt[] [the Court] deferred, with scarcely any explanation, to an agency’s interpretation of a law that carried criminal penalties. 

. . . Babbitt’s drive-by ruling, in short, deserves little weight.” Whitman v. 

United States, 574 U.S. 1003, 135 S. Ct. 352, 353 (Scalia, J., joined by Thomas, 

J., respecting the denial of certiorari).

This is confirmed by subsequent Supreme Court precedent, addressing the rule of lenity in relation to Chevron and declining to defer to agency 

interpretations of criminal statutes. See Aposhian, 989 F.3d at 901 (Tymkovich, C.J., dissenting) (collecting cases). Babbitt does not require us to apply Chevron in these circumstances. Indeed, most proximate sources suggest 

otherwise. See Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting 

denial of certiorari) (“[W]hatever else one thinks about Chevron, it has no 

role to play when liberty is at stake.”). As such, Chevron does not apply here 

because the statutory language at issue implicates criminal penalties.

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C 

Finally, we note a third reason why Chevron deference does not apply 

in these circumstances: that ATF has adopted an interpretive position that is 

inconsistent with its prior position. To apply Chevron here would contravene 

one of the rule’s central purposes: “to promote fair notice to those subject to 

criminal laws.” United States v. Kozminski, 487 U.S. 931, 952 (1988); see also 

United States v. Kaluza, 780 F.3d 647, 669 (5th Cir. 2015) (“The rule ‘vindicates the fundamental principle that no citizen should be held accountable for 

a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.’”) (quoting United States v. Santos, 553 

U.S. 507, 514 (2008) (plurality op.)).11 

If we were required to defer to the Government’s position, the Government could change the scope of criminal liability at any time. Indeed, that 

is exactly what it has done here. Until 2017, the ATF had never classified 

non-mechanical bump stocks as machineguns. But now the interpretation is 

reversed, and the Government would criminalize behavior that it long recognized was lawful. In considering one of the other cases involving the regulation, one member of the Supreme Court explained the problem as such:

Chevron’s application in this case may be doubtful for other 

reasons too. The agency used to tell everyone that bump stocks 

don’t qualify as ‘machineguns.’ Now it says the opposite. The 

law hasn’t changed, only an agency’s interpretation of it. How, 

in all this, can ordinary citizens be expected to keep up? . . . 

And why should courts, charged with the independent and 

11 These fair-notice issues accentuate why Babbitt does not bar us from applying the 

rule of lenity. In Babbitt, the Supreme Court expressly contemplated cases where it would 

be appropriate to apply the rule of lenity. 515 U.S. at 704 n.18 (“Even if there exist regulations whose interpretations of statutory criminal penalties provide such inadequate notice 

of potential liability as to offend the rule of lenity, the [regulation at issue here] cannot be 

one of them.”).

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neutral interpretation of the laws Congress has enacted, defer 

to such bureaucratic pirouetting?

Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari); see also Aposhian, 989 F.3d at 900 (“When an agency plays pinball with

a statute’s interpretation, as the ATF has here, fair notice cannot be said to

exist.”)(Tymkovich, C.J., dissenting); Guedes, 920 F.3d at 181 (“TheATF’s

interpretation of ‘machinegun’ gives anything but fair warning—instead, it

does a volte-face of its almost eleven years’ treatment of a non-mechanical

bump stock as not constituting a ‘machinegun.’”) (Henderson, J., concurring in part and dissenting in part).

12

The concern respecting the consistency of agency regulations is nothing new. Indeed, the Supreme Court has long recognized that an agency interpretation that “conflicts with the agency’s earlierinterpretation is entitled

to considerably less deference than a consistently held agency view.” INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (internal quotations omitted); see also Cargill, 502 F. Supp. 3d at 1189 (quoting Cardoza-Fonseza). The

concern is only magnified where, as here, the Government’s interpretation

of the underlying statute carries implications for criminal liability. As such,

Chevron does not apply because the Government has construed the same statute in two, inconsistent ways at different points in time.

V 

Turning to the rule of lenity, and assuming arguendo that the relevant 

statute is ambiguous, we now consider whether that “ambiguity concerning 

the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. 

12 See also Thomas Z. Horton, Lenity Before Kisor: Due Process, Agency Deference, 

and the Interpretation of Ambiguous Penal Regulations, 54 Colum. J.L. & Soc. Probs. 629, 647–

49 (2021).

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United States, 401 U.S. 808, 812 (1971) (citation omitted). We conclude that 

the rule of lenity applies if the statute is ambiguous. 

We recognize that courts have considered two standards for whether 

a statute is sufficiently ambiguous to trigger the rule of lenity. One standard 

asks whether there is a “reasonable doubt” as to the statute’s meaning. See 

Reading Law at 299 (quoting Moskal v. United States, 498 U.S. 103, 108 

(1990)). The other inquires whether there is a “grievous ambiguity” in the 

statute. See, e.g., Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting 

Huddleston v. United States, 415 U.S. 814, 831 (1974)). The Supreme Court 

does not appear to have decided which of these standards governs the rule of 

lenity. See Wooden v. United States, 142 S. Ct. 1063, 1075 (2022) (Kavanaugh, 

J., concurring) (arguing in favor of the grievous-ambiguity standard); id. at 

142 S. Ct. at 1084 (Gorsuch, J., concurring in the judgment) (arguing in favor 

of the reasonable-doubt standard).

But it does not matter which standard applies because the rule of lenity 

applies even under the more stringent “grievously ambiguous” condition. 

One formulation of that standard provides that lenity applies if a court cannot 

discern the statute’s meaning even “after seizing everything from which aid 

can be derived.” Wooden, 142 S. Ct. at 1075 (Kavanaugh, J., concurring) 

(quoting Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016)). Assuming 

that the statute at issue here is ambiguous, we can only “guess” at its definitive meaning. Suchowolski, 838 F.3d at 534. We have availed ourselves of all 

traditional tools of statutory construction, and in this circumstance, they fail 

to provide meaningful guidance. That is sufficient to require application of 

the rule of lenity irrespective of whether the reasonable doubt or grievous 

ambiguity standard applies.

The dissenting opinion objects to our application of lenity, arguing 

that we fail to explain why the statute at issue here is grievously ambiguous. 

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With this understanding, it concludes that our holding implies that “ambiguous statutes are always grievously ambiguous.” Post at 57. This criticism 

misunderstands our holding. We do not conclude that all ambiguous statutes 

are grievously ambiguous—only that this one is.

Our conclusion fits comfortably into the dissenting opinion’s own 

conceptualization of the grievous-ambiguity standard. At the very least, lenity is appropriate, the dissenting opinion concedes, if after “having tried to 

make sense of a statute using every other tool, we face an unbreakable tie between different interpretations.” Post at 56. That is the case here in two 

respects. First, the parties argue whether “a single function of the trigger” 

refers to the firearm’s mechanics or to the shooter’s pulling of the trigger. 

Second, the parties argue if the process of engaging the trigger and maintaining forward pressure on the gun’s forebody produces “automatic” fire.

True, the precise meaning of “grievously ambiguous” is not entirely 

clear. See Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., 

concurring) (noting that “the Court has not always been perfectly consistent 

in its formulations [of grievous ambiguity]); Reading Law at 299 (arguing that 

the term grievous ambiguity “provides little more than atmospherics, since 

it leaves open the crucial question—almost invariably present—of how much 

ambiguousness constitutes an ambiguity”) (quoting United States v. Hansen, 

772 F.2d 940, 948 (D.C. Cir. 1985)). But having utilized all available tools of 

statutory interpretation, and assuming arguendo that those two provisions are 

indeed ambiguous, we are unable to resolve either of the ties. See Alkazahg, 

81 M.J. at 784 (expressing “genuine confusion as to what the statute 

means”). That is sufficient to conclude that this statute—and for purposes 

of this case, only this statute—is grievously ambiguous.

The dissenting opinion also objects that applying lenity in this case 

wrongfully takes Congress’s prerogative to establish federal crimes and 

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transfers that power to the Judiciary, violating the separation of powers. But 

this is really just a repetition of the dissenting opinion’s disagreement regarding the correct interpretation of the statute at issue here. As we understand 

it, the National Firearms Act and Gun Control Act do not unambiguously 

criminalize the possession of a non-mechanical bump stock. To apply lenity 

in this case preserves the separation of powers “by maintaining the legislature 

as the creator of crimes.” Esquivel-Quintana, 810 F.3d at 1019. If ATF could 

change the scope of criminal liability by issuing a regulation—free from the 

taxing obligations of bicameralism and presentment—the Executive could 

wield power that our Constitution reserves to the Legislature. 

The rule of lenity also prevents the possibility whereby Congress 

passes an ambiguous criminal statute, only to be interpreted later by a federal 

agency. See id. (“By applying lenity in this setting, last of all, courts would 

avoid incentivizing Congress to enact hybrid statutes that duck under lenity’s 

imperatives, to say nothing of other imperatives in construing criminal 

laws.”). To be sure, it would be inconsistent with our constitutional structure to apply lenity in an unprincipled manner to statutes that are not really 

ambiguous. But here, we are wholly persuaded that if the definition of “machinegun” does not unambiguously exclude non-mechanical bump stocks, its 

inclusion of the latter is at the very least ambiguous. Given that conclusion, 

our separation of powers is aided, rather than impeded, by applying the rule 

of lenity.

The rule of lenity is a “time-honored interpretive guideline.” Liparota 

v. United States, 471 U.S. 419, 429 (1985). We have applied it many times to 

construe ambiguous statutes against imposing criminal liability. See e.g., 

United States v. Cooper, 38 F.4th 428, 434 (5th Cir. 2022); Kaluza, 780 F.3d 

at 669; United State v. Orellano, 405 F.3d 360, 370 (5th Cir. 2005). This case 

is no different: assuming the definition of machinegun is ambiguous, we are 

bound to apply the rule of lenity. That is, we are bound to construe the 

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definition of machinegun to exclude a semi-automatic weapon equipped with 

a non-mechanical bump stock. See Alkazahg, 81 M.J. at 784 (“We decline to 

step into the role of the legislature when the legislature has not been clear 

about whether Appellant’s conduct was criminal. Judge Henry Friendly described the rule of lenity as ‘the instinctive distaste against men languishing 

in prison unless the lawmaker has clearly said they should.’ Here, we express 

that distaste.”) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)). 

Therefore, assuming arguendo that the statute is ambiguous, we conclude 

that the rule of lenity demands that we resolve that ambiguity in favor of Cargill, and in turn conclude that a non-mechanical bump stock is not a machinegun for purposes of the National Firearms Act and Gun Control Act.

VI 

Cargill also argues that the passage of the Final Rule is an exercise of 

legislative power, in violation of the Constitution’s vesting all such power in 

Congress. U.S. Const. art. I, § 1. Some have expressed serious concern at 

the ATF’s lack of explicit authorization to interpret criminal statutes as such.

[W]e should feel deep discomfort at allowing an agency to define the very criminal rules it will enforce by implicit delegation. Such a delegation “turn[s] the normal construction of 

criminal statutes upside down, replacing the doctrine of lenity 

with a doctrine of severity.” Carter v. Welles-Bowen Realty, Inc., 

736 F.3d 722, 730 (6th Cir. 2013) (Sutton, J., concurring). The 

delegation raises serious constitutional concerns by making 

ATF the expositor, executor, and interpreter of criminal laws.

Aposhian, 989 F.3d at 900 (Tymkovich, C.J., dissenting).

We acknowledge this concern, especially in light of statements made 

by several members the Supreme Court calling into question the relevant 

standards for legislative-power-delegation issues. See Gundy v. United States, 

139 S. Ct. 2116, 2131–42 (2019) (Gorsuch, J., dissenting, joined by Roberts, 

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C.J., and Thomas, J.); id. at 2130–31 (Alito, J., concurring in the judgment); 

Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting the denial of certiorari).

We need not decide this question because multiple independent reasons compel us to hold the Final Rule to be unlawful. But if more were 

needed, this issue may well implicate the canon of constitutional avoidance. 

Under that well-established doctrine, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court 

will construe the statute to avoid such problems unless such construction is 

plainly contrary to the intent of Congress.” Hersh v. United States, 553 F.3d 

743, 754–55 (5th Cir. 2008) (quoting Edward J. DeBartolo Corp. v. Florida 

Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988)); see 

also Reading Law at 250. 

For many jurists, the question of Congress’s delegating legislative 

power to the Executive in the context of criminal statutes raises serious constitutional concerns. See Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement 

respecting denial of certiorari); Aposhian, 989 F.3d at 900 (Tymkovich, C.J., 

dissenting); Esquivel-Quintana, 810 F.3d at 1027 (Sutton, J., concurring in 

part and dissenting in part). We do not reach this issue because we do not 

have to. But if we did, it would only provide more support for the conclusion 

that a semi-automatic rifle equipped with a non-mechanical bump stock is not 

a machinegun for purposes of federal law. 

VII 

Having determined that the judgment of the district court must be reversed, we remand this case to the district court to enter judgment for Cargill 

and to determine the proper scope of relief. It is well-established that “[a] 

plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). And as an initial matter, 

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vacatur of an agency action is the default rule in this Circuit. See, e.g., Data 

Mktg. Partnership, LP v. United States Dept. of Labor, 45 F.4th 846, 859 (5th 

Cir. 2022) (“The default rule is that vacatur is the appropriate remedy.”); 

see also Franciscan Alliance, Inc. v. Becerra, 47 F.4th 368, 374–75 (5th Cir. 

2022) (“Vacatur is the only statutorily prescribed remedy for a successful 

APA challenge to a regulation.”). But the parties have not briefed the remedial-scope question, and it may be the case that a more limited remedy is appropriate in these circumstances. We express no opinion on that question 

other than to observe that the district court is well-placed to answer the question in the first instance. We therefore remand this case to the district court 

with the instruction that it enter judgment for Cargill and determine what 

remedy—injunctive, declarative, or otherwise—is appropriate to effectuate 

that judgment.

VIII

Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the Final Rule is good public policy. We express no opinion on those arguments because it is not our job to determine 

our nation’s public policy. Thatsolemn responsibility lies with the Congress, 

and our task is confined to deciding cases and controversies, which requires 

us to apply the law as Congress has written it.13 

In defining the term machinegun, Congress referred to the mechanism 

by which the gun’s trigger causes bullets to be fired. Policy judgments aside, 

13 The dissenting opinion accuses us of using the rule of lenity to “legalize an instrument of mass murder.” Post at 61. But it is Congress’s responsibility to unambiguously 

define the scope of criminal conduct. Congress having failed to do so, we deploy lenity to 

retain the proper allocation of legislative power, not unsettle it. And the dissenting opinion’s resort to policy argument only underscores the Judiciary’s proper role. It is our responsibility to apply the law as written, regardless of what we think about the law’s wisdom 

or utility. 

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we are bound to apply that mechanical definition. And applying that definition to a semi-automatic rifle equipped with a non-mechanical bump stock, 

we conclude that such a weapon is not a machinegun for purposes of the Gun 

Control Act and National Firearms Act. Chevron deference likely has no role 

here either because the Government waived it or because it does not apply to 

the Government’s interpretation of a statute imposing criminal penalties. Finally, even if the statute were ambiguous—which it is not—the rule of lenity 

would require that we interpret the statute in Cargill’s favor. As Justice 

Holmes framed it years ago, “it is reasonable that a fair warning should be 

given to the world in language that the common world will understand, of 

what the law intends to do if a certain line is passed.” McBoyle, 283 U.S. at 

27. We cannot say that the National Firearms Act and Gun Control Act give 

that fair warning that possession of a non-mechanical bump stock is a crime.

The Final Rule promulgated by the ATF violates the APA. We therefore REVERSE the judgment of the district court and REMAND with instructions to enter judgment for Cargill.

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Haynes, Circuit Judge, joined by Richman, Chief Judge, concurring in 

the judgment:

I concur in the judgment only because I reluctantly conclude that the 

relevant statute is ambiguous such that the rule of lenity favors the citizen in 

this case.

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James C. Ho, Circuit Judge, joined by Richman, Chief Judge, and

Southwick, Circuit Judge, concurring in part and concurring in the 

judgment:

Under the rule of lenity, “[p]enal statutes must be construed 

strictly.” 1 William Blackstone, Commentaries *88. “This is a 

rule of construction . . . as old and well established as law itself.” United 

States v. Wilson, 28 F. Cas. 699, 709 (C.C.E.D. Pa. 1830).

Our courts have thus long recognized that “all reasonable doubts 

concerning [the] meaning [of a penal statute] . . . operate in favor of [the 

defendant].” Harrison v. Vose, 50 U.S. 372, 378 (1850). We apply the rule of 

lenity where “reasonable doubt persists about a [criminal] statute’s intended 

scope.” Moskal v. United States, 498 U.S. 103, 108 (1990). When standard 

principles of statutory interpretation “fail to establish that the Government’s 

position is unambiguously correct . . . [we] resolve the ambiguity in [the 

defendant’s] favor.” United States v. Granderson, 511 U.S. 39, 54 (1994).

The rule of lenity rests on “the principle that the power of punishment 

is vested in the legislative, not in the judicial department.” United States v. 

Wiltberger, 18 U.S. 76, 85 (1820) (Marshall, C.J.). The rule also ensures fair 

notice to citizens: “To make the warning fair, . . . the line should be clear.” 

McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.).

In sum, it is not enough to conclude that a criminal statute should cover 

a particular act. The statute must clearly and unambiguously cover the act. 

Consider the disturbing problem of designer drugs. The Controlled 

Substances Act of 1970 prohibits drugs listed on certain schedules. See Thor 

v. United States, 554 F.2d 759, 762–63 (5th Cir. 1977). In response, a line of 

synthetically produced drugs was created “to mimic the pharmacological 

effects” of scheduled drugs, while evading the Act. Clayton L. Smith, The 

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Controlled Substance Analogue Enforcement Act of 1986: The Compromising of 

Criminalization, 16 Am. J. Crim. L. 107, 108 (1988).

Designer drugs differed in chemical composition from scheduled 

drugs. But they were just as lethal. So the same policy justifications for 

banning scheduled drugs readily applied to designer drugs.

Yet all three branches agreed that existing law did not ban designer 

drugs. See, e.g., Controlled Substance Analogs Enforcement Act of 1985: Hearing 

on S. 1437 Before the S. Comm. on the Judiciary, 99th Cong. 1st Sess. 2 (1985)

(opening statement of Chairman Strom Thurmond) (“[U]nlawful activity 

under the Controlled Substances Act is defined with regard to the precise 

chemical makeup of the substances described by schedules . . . . Make a minor 

alteration in the molecular structure of an outlawed drug . . . and you have 

produced a . . . dangerous narcotic that is not illegal.”); id. at 41–42 

(statement of Stephen S. Trott, Assistant Attorney General, Criminal 

Division, Department of Justice) (“[I]f a particular substance is not included 

in one of the schedules, it is not unlawful to manufacture or to distribute it . . 

. despite the potential for abuse . . . .”); United States v. Gavrilovic, 551 F.2d 

1099, 1106 (8th Cir. 1977) (reversing a conviction where a concededly 

dangerous narcotic had not been properly added to a schedule).

So a new act of Congress was required to get at the problem of 

designer drugs. And that’s why Congress enacted the Controlled Substance

Analogue Enforcement Act of 1986. Pub. L. No. 99-570, §§ 1201–04, 100 

Stat. 3207, 3207–13 to 3207–14 (1986). See also United States v. Muhammad, 

14 F.4th 352, 355 (5th Cir. 2021) (“[T]he Analogue Act is an antidote to 

statutory evasion: It expands the CSA’s coverage to include substances that, 

while technically not on the schedules, mimic those that are.”).

Bump stocks present the same basic conundrum as designer drugs. 

Federal law criminalizes the possession of fully automatic machineguns. See

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18 U.S.C. § 922(o)(1) (machinegun ban); 26 U.S.C. § 5845(b) (machinegun 

definition). That prohibition does not apply to semiautomatic weapons. See

Gun Control Act of 1968, § 201, 82 Stat. 1231 (codified at 26 U.S.C. § 

5845(b)) (amending the 1934 federal definition of “machinegun” to omit 

weapons that shoot “semiautomatically”).

But bump stocks now allow semiautomatic weapons to mimic 

automatic machineguns. By attaching a bump stock to a semiautomatic 

firearm, the shooter can simulate the experience of firing an automatic 

machinegun. See 83 Fed. Reg. 66,515–16.

Just as designer drugs achieve the same lethality as scheduled drugs, 

bump stocks allow semiautomatic weapons to achieve the same lethality as 

fully automatic machineguns. But once again, Congress must take action if it 

wishes to criminalize bump stocks, just as it did during the 1980s when it 

came to designer drugs.

That’s because federal law defines “machinegun” as a weapon that 

shoots more than one shot “automatically . . . by a single function of the 

trigger.” 26 U.S.C. § 5845(b). There are competing theories as to whether 

this language is best construed to cover bump stocks. In my own view, the 

relevant language is at best ambiguous. That makes this an easy case for 

invoking the rule of lenity. Accordingly, I agree that we should reverse.

I.

Federal law defines a machinegun as a “weapon which shoots . . . 

automatically more than one shot . . . by a single function of the trigger.” 26 

U.S.C. § 5845(b). The definition also includes “any part designed and 

intended . . . for use in converting a weapon into a machinegun.” Id. 

Violators of the machinegun ban risk up to ten years in federal prison. 18 

U.S.C. § 924(a)(2).

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I see at least two challenges with reading § 5845(b) to cover bump 

stocks. To begin with, it’s at best ambiguous whether a semiautomatic 

weapon equipped with a bump stock is indeed capable of shooting more than 

one shot by “a single function of the trigger.” Id. And even if I could get 

past that problem, it’s also ambiguous at best whether the weapon does so 

“automatically.” Id. So the rule of lenity requires us to reverse.

A.

The phrase “single function of the trigger” is not a matter of common 

parlance. No one has identified an example of this phrase ever being used in 

any context other than this statute.

So it’s a term that requires interpretation. And in this context, the 

interpretive steps it takes to get from “single function of the trigger” to the 

criminalization of bump stocks fall short of the fair notice that lenity requires.

What does “single function of the trigger” mean? “[F]unction”

means “action.” Webster’s New International Dictionary

1019 (2nd ed. 1934). But where does that leave us?

If it means that there is a single action on the trigger from the shooter’s

perspective, then this language might very well apply to bump stocks. That’s 

because a single action on the trigger by the shooter is enough to spray 

multiple bullets.

But if the phrase means that there is a single action by the trigger from 

the weapon’s perspective, then this language would not apply to bump stocks. 

That’s because from the weapon’s perspective, a single action by the trigger 

releases just one bullet. See, e.g., Gun Owners of Am., Inc. v. Garland, 992 

F.3d 446, 469 (6th Cir. 2021) (“the question is whether ‘function’ is 

referring to the mechanical process (i.e., the act of the trigger’s being 

depressed, released, and reset) or the human process (i.e., the shooter’s 

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pulling, or otherwise acting upon, the trigger)”), vacated on reh’g en banc, 2 

F.4th 576 (6th Cir. 2021).

I conclude that grammar and syntax are at best inconclusive, and that 

lenity therefore requires us to side with the citizen over the government.

The problem here is the distinction between what classical 

grammarians call the “subjective genitive” and the “objective genitive.” 

See, e.g., Laurel J. Brinton, The Structure of Modern 

English: A Linguistic Introduction 108 (2000) (“The phrase 

the shooting of the hunters is ambiguous between subjective and objective 

genitive readings because it can mean either ‘the hunters shoot X’ or ‘X 

shoots the hunters.’”); see also Thomas Kerchever Arnold, An 

English Grammar for Classical Schools 98 (1848); Sidney 

Greenbaum & Randolph Quirk, A Student’s Grammar of 

the English Language 103 (1990).

Take, for example, the phrase “the love of my children.” That phrase 

could mean that my children love me (in other words, my children are the 

subject of love). Or it could mean that I love my children (so my children are 

the object of love).

Only context can clarify whether children are the subject or the object

of love. Compare Emma D.E.N. Southworth, Victor’s Triumph

97 (1874) (“[S]he could not win the love of children.”) (subjective genitive), 

with Henry James, Stephen Dewhurst’s Autobiography 54 The Atlantic

Monthly 649, 650 (1884) (“[S]he had a most vivacious love of children.”) 

(objective genitive).

Consider another example: “the fear of the soldiers.” Without 

clarifying context, this could mean that the soldiers are fearful (the soldiers 

are the subject of fear). Or it could mean that someone else is fearful of the 

soldiers (the soldiers are the object of fear). Compare Jan Palmper Fear: 

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Soldiers and Emotion in Early Twentieth-Century Russian Military Psychology,

68 Slavic Rev. 259, 270 n.38 (2009) (“[T]he fear that officers inspired in 

soldiers could also cause harm[] . . . . Only just, law-abiding behavior on the 

part of officers could keep this particular fear of soldiers in check.”) 

(subjective genitive), with C. Stanley Smith, Five Days, 1927 The 

Atlantic Monthly 836, 841 (“The fact that I also felt absolutely no 

fear of the soldiers contributed largely to my safety.”) (objective genitive).

Naturally, then, this same ambiguity can also exist when a genitive 

construction modifies the term “function.”

For example, the phrase “function of the polls” could refer to what 

polls do (polls are the subject). See A. Stuart, Norman L. Webb & D. Butler, 

Public Opinion Polls, 142 J. Royal Stat. Soc’y 443, 447 (1979) (“The 

second and most obvious function of polls is that they show the progress of 

electoral campaigns in a purely informative sense.”) (subjective genitive).

Or it could refer to what voters do at the polls (polls are the object). 

See H.W. Warner, The Republic: Things as They Are at Present, Compared with 

the Past, 4 Am. Rev. 278, 279 (1849) (early American lawmakers established 

age, residency, and property requirements as “necessary qualifications for 

the function of the polls”) (objective genitive).

By the same token, a “function of the trigger” could mean what the 

trigger does (the trigger is the subject). Or it could mean what the shooter 

does to the trigger (the trigger is the object). A “single function of the 

trigger” could mean that the trigger acts once—or that the shooter acts once 

on the trigger.

The government’s reading prevails if it’s clear that the trigger is the 

object, and the shooter is the implied subject. But there’s nothing inherent 

about the phrase “function of the trigger” that tells us that the trigger is the 

object rather than the subject.

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So grammar alone can’t dictate whether we should read the statute 

from the machine’s perspective (subjective genitive) or the shooter’s 

perspective (objective genitive). As the D.C. Circuit explained: “[T]he text 

is silent on the crucial question of which perspective is relevant. A

mechanical perspective . . . might focus on the trigger’s release of the 

hammer, which causes the release of a round. From that perspective, a 

‘single function of the trigger’ yields a single round of fire when a bump-stock 

device moves the trigger back and forth. By contrast, from the perspective of 

the shooter’s action, the function of pulling the trigger a single time results 

in repeated shots when a bump-stock device is engaged. From that 

perspective, then, a ‘single function of the trigger’ yields multiple rounds of 

fire.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 

29 (D.C. Cir. 2019).

In the examples provided above, the history or context of a particular 

phrase sheds light on whether it contains a subjective or objective genitive. 

Take another example: “The fear of the Lord is the beginning of wisdom.” 

Psalm 111:10. Construed as a subjective genitive, “the fear of the lord” 

could refer to an anxious aristocrat, afraid of an overweening monarch or 

unruly populace. But we know that the Bible means something very 

different—that the wise man fears God.

Unlike “fear of the Lord,” a “single function of the trigger” does not 

offer much by way of history or context. No example of its usage in any other 

context has been provided by anyone in this litigation. Congress appears to 

have coined the phrase just for this statute.1

1 The plurality claims that its interpretation is supported by context: A neighboring 

provision, § 5845(c), refers to a “single pull of the trigger”—whereas § 5845(b) uses the 

phrase “single function of the trigger.” See ante, at 20–21. So the plurality infers that the 

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As between construing “single function of the trigger” from the 

weapon’s perspective or the shooter’s perspective, then, the statute appears 

to be in equipoise. And statutory equipoise is a textbook case for lenity.2

term “pull” must be distinct from the term “function”—if “pull” signifies the shooter’s 

perspective, then “function” must signify the weapon’s perspective. Cf. Gun Owners, 992 

F.3d at 469 (“pull” suggests “shooter’s” perspective); Guedes, 920 F.3d at 29 (same).

But the dissent would presumably counter with legislative history suggesting that 

the terms are interchangeable rather than distinct. See Cargill v. Garland, 20 F.4th 1004, 

1010 (5th Cir. 2021), reh’g granted, 37 F.4th 1091 (5th Cir. 2022) (quoting House report 

statement that the statute defines machinegun as “a weapon designed to shoot more than 

one shot without reloading and by a single pull of the trigger”); id. (statement of Karl T. 

Frederick, President, National Rifle Association of America) (equating “single pull of the 

trigger” with “single function of the trigger”). And whatever one may think of legislative 

history, the Supreme Court has repeatedly looked to it before invoking lenity. See, e.g., 

Moskal, 498 U.S. at 108; Granderson, 511 U.S. at 54. 

So there’s some evidence that the terms are distinct, and some that the terms are 

interchangeable. The evidence thus appears to be in equipoise—a classic case for lenity.

2 Both the plurality and the dissent resist the notion of equipoise. They both point 

to other words in § 5845(b) that arguably favor their respective positions: The plurality 

invokes the subject of the sentence (“machinegun”)—while the dissent relies on a prepositional phrase (“without manual reloading”).

Neither inference seems warranted. Neither the plurality nor the dissent cites a 

rule of grammar that says that a subject or prepositional phrase tells us whether to read a 

subsequent phrase as a subjective or objective genitive. And I’m aware of none.

For example, the plurality notes that, under § 5845(b), “machinegun means . . . 

any weapon which shoots . . . automatically more than one shot . . . by a single function of 

the trigger.” 26 U.S.C. § 5845(b). So “[t]he subject of the sentence . . . is machinegun.” 

Ante, at 19. Therefore, the plurality argues, it must be the perspective of the machinegun, 

not the shooter, that dictates how we read “function of the trigger.”

But no rule of grammar supports this inference. Suppose I offer this definition: 

“Sugar means a sweet carbohydrate that enhances the enjoyment of food.” Naturally, we 

would read “enjoyment of food” from the perspective of the eater, not the food—even 

though sugar is the subject of the sentence, and the sentence never mentions the eater.

The dissent commits a similar error. It claims that § 5845(b) must be read from 

the shooter’s perspective because it defines “machinegun” to mean a weapon that fires 

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B.

There’s another ambiguity in the statute. Does a semiautomatic 

weapon equipped with a bump stock shoot multiple bullets “automatically?” 

Each side puts forth its competing theory with great force. But neither deals 

a fatal blow to the other—which is why, once again, lenity compels reversal.

Cargill argues that a bump stock doesn’t shoot multiple bullets 

“automatically” because it requires “constant forward pressure with the 

non-trigger hand.” Guedes, 920 F.3d at 44 (Henderson, J., concurring in part 

and dissenting in part). “Automatic” means “self-acting.” Oxford 

English Dictionary at 574 (1933). So Cargill argues that the need for 

human input means that bump stocks do not shoot automatically, because 

they do not shoot in a self-acting fashion.

But the government counters that the term “automatic” need not 

necessarily mean no human input. It could just mean less human input. And 

that would make it ambiguous at best whether “automatic” includes or 

excludes bump stocks.

Consider an automatic sewing machine. With a machine that sews 

automatically, you don’t just push a button—you also move the cloth forward 

with your hand.

multiple shots, “without manual reloading,” by a single function of the trigger. 26 U.S.C. 

§ 5845(b). The phrase “without manual reloading” means that no reloading is performed 

by the shooter. So the dissent theorizes that “single function of the trigger” must likewise 

refer to an action performed by the shooter. See post, at 57 n.5.

But once again, no rule of grammar supports such an inference. Suppose I offer 

this definition: “A well-trained army means an army that follows orders, without constant 

reminding, due to the fear of the soldiers.” Naturally, “without constant reminding” means 

no reminding is done by officers, not soldiers. Yet the phrase “fear of the soldiers” obviously refers to a feeling felt by soldiers. The soldiers are afraid—not the officers.

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This is similar to a bump stock. You don’t just pull the trigger with 

your finger—you also apply pressure with your non-trigger hand. See Guedes, 

920 F.3d at 30.

Likewise, with an automatic car—one that shifts gears 

automatically—you still have to “maintain[] enough constant pressure on 

the gas pedal to reach a speed that triggers a gear shift.” Gun Owners of Am., 

Inc. v. Garland, 19 F.4th 890, 906 (6th Cir. 2021) (en banc) (White, J., for an 

equally divided court).

“[T]he ultimate question,” then, “is how much human input is 

contemplated by the word ‘automatically.’” Id. But “[t]hat is a question of 

degree that the statute’s text does not definitively answer.” Id. And because 

there is no definitive answer, lenity compels reversal.

II.

The rule of lenity “requires ambiguous criminal laws to be interpreted 

in favor of the defendants subjected to them.” United States v. Bittner, 19 

F.4th 734, 748 (5th Cir. 2021) (quoting United States v. Santos, 553 U.S. 507, 

514 (2008) (plurality opinion)), cert. granted, 142 S. Ct. 2833 (2022). Lenity 

applies when there “remains a grievous ambiguity or uncertainty,” even after 

the court has examined it using the standard tools of construction. United 

States v. Castleman, 572 U.S. 157, 173 (2014).

Bump stocks may well be indistinguishable from automatic weapons 

for all practical purposes. But as Chief Justice Marshall recognized two 

centuries ago in a seminal case on the rule of lenity: “It would be dangerous 

. . . to punish a crime not enumerated in the statute, because it is of equal 

atrocity, or of kindred character, with those which are enumerated.” 

Wiltberger, 18 U.S. at 96.

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Consider the facts in Wiltberger. A shipmaster had killed a sailor while 

the vessel was on a river, near its mouth. Id. at 77. Surely we would all agree 

that manslaughter is a criminal act, deserving of punishment. The Court 

nevertheless unanimously construed a statute that punished manslaughter on 

the “high seas” not to apply to an identical act on a river. Id. at 103–06. The 

Court noted that it was “extremely improbable” Congress would want to 

treat upstream manslaughter differently from manslaughter committed 

downstream, past the river’s mouth. Id. at 105. “But probability is not a 

guide which a court, in construing a penal statute, can safely take.” Id.3

3 The dissent says lenity applies only in cases of true equipoise—where there’s an 

“unbreakable tie” between competing interpretations. Post, at 56. See also id. at 58.

But equipoise is precisely what’s presented here. As explained, each side offers 

conflicting theories as to whether bump stocks fire multiple bullets “automatically” or “by 

a single function of the trigger.” But neither has the goods on the other. So lenity governs.

Moreover, the Supreme Court has long held that lenity requires us to “resolve [] 

ambiguity” and construe “reasonable doubt” in favor of the accused. See Granderson, 511 

U.S. at 54; Moskal, 498 U.S. at 108. The dissent responds that more recent precedent invokes lenity only in cases of “grievous ambiguity.” Post, at 56 & n.2. But the Court has 

never indicated any intention to abrogate its longstanding commitment to lenity in cases of 

“reasonable doubt.”

And for good reason: The Court has historically “link[ed] the high burden of the 

rule of lenity with the high burden of proving guilt in a criminal trial beyond a reasonable 

doubt.” Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101, 109 (2016).

The link between legal and factual doubt is not just longstanding—it’s logical. After all, it’s just as “grievous” to punish an accused whether there’s reasonable doubt as to 

fact or law. See id.; see also Antonin Scalia & Bryan A. Garner, Reading 

Law: The Interpretation of Legal Texts 296, 299 (2012) (lenity reflects 

“‘the tenderness of the law for the rights of individuals,’” Wiltberger, 18 U.S. at 95, and

applies where a matter is “not beyond reasonable doubt,” because “the consequences 

should be visited on the party more able to avoid and correct the effects of shoddy legislative drafting”).

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* * *

As a matter of lethality, bump stocks may well be no different from 

machineguns. Just as manslaughter on a river is no less deadly than 

manslaughter at sea. And designer drugs are no less dangerous than 

scheduled drugs. But as a matter of legality, Congress could not ban designer 

drugs without passing the Analogue Act. Nor could it punish manslaughter 

on a river without saying so. Likewise, Congress cannot criminalize bump 

stocks absent a clear and unambiguous statute.

Members of Congress who strongly oppose bump stocks nevertheless 

concede that “legislation is the only way to ban bump stocks.” Press Release, 

Sen. Dianne Feinstein, Feinstein Statement on Regulation to Ban Bump Stocks

(Mar. 23, 2018). I agree.4

4 Thirteen of the sixteen members of our en banc court likewise agree that legislation is the “only way” to ban bump stocks. Id.

The dissent responds by accusing 80% of our court of “legaliz[ing] an instrument 

of mass murder.” Post, at 61. Yet the dissent does not accuse the Supreme Court of “legaliz[ing] . . . murder”—even though it applied lenity to manslaughter in Wiltberger. To 

the contrary, the dissent relies on Wiltberger. See id. at 58 (quoting Wiltberger, 18 U.S. at 

95).

Odder still, the dissent also accuses us of creating a “special rule of lenity for 

guns,” “giving machinegun owners immunity from prosecution that is not shared by other 

offenders.” Id. at 57 n.4, 61. I have no idea what “special rule” the dissent is talking about. 

I’ll say it again: I would apply the exact same principle to guns as to drugs or manslaughter.

Finally, the dissent theorizes that, if we apply lenity here, “it is unclear how Congress could draft [] a [new] statute while avoiding ambiguity as to what counts as a bump 

stock.” Post, at 61. But what’s wrong with the text proposed by Senator Feinstein after the 

Las Vegas shooting—which makes it unlawful to possess “a bump-fire device, or any part,

component, device, attachment, or accessory that is designed or functions to accelerate the 

rate of fire of a semiautomatic rifle but not convert the semiautomatic rifle into a machinegun”? S. 1916, 115th Cong. § 2 (2017). The dissent does not say.

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Stephen A. Higginson, Circuit Judge, joined by Dennis and 

Graves, Circuit Judges, dissenting:

I.

For the reasons stated in the panel opinion, Cargill v. Garland, 20 

F.4th 1004 (5th Cir. 2021), reh’g granted, 37 F.4th 1091 (5th Cir. 2022), I 

respectfully dissent from our court’s decision that a bump stock is not a 

machinegun within the meaning of 18 U.S.C. § 921(a)(24). 

II.

I write further to dissent from our court’s use of lenity to rewrite this 

statute. 

The Supreme Court has repeatedly instructed that “the rule of lenity 

only applies, if, after considering text, structure, history, and purpose, there 

remains a grievous ambiguity or uncertainty in the statute such that the [c]ourt 

must simply guess as to what Congress intended.” Maracich v. Spears, 570 U.S. 

48, 76 (2013) (emphases added) (cleaned up); see, e.g., Ocasio v. United States, 

578 U.S. 282, 295 n.8 (2016) (similar); Robers v. United States, 572 U.S. 639, 

646 (2014) (similar); United States v. Hayes, 555 U.S. 415, 429 (2009) 

(similar). Under this standard, the Supreme Court has been clear that we do 

not invoke lenity just because “multiple, divergent principles of statutory 

construction” are available, Lockhart v. United States, 577 U.S. 347, 361 

(2016), “the statute’s text, taken alone, permits a narrower construction,” 

Abramski v. United States, 573 U.S. 169, 188 n.10 (2014), or “a law merely 

contains some ambiguity or is difficult to decipher,” Wooden v. United States, 

142 S. Ct. 1063, 1075 (2022) (Kavanaugh, J., concurring). Rather, the 

Supreme Court lets us deploy lenity to narrow laws only as a last resort when, 

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having tried to make sense of a statute using every other tool, we face an 

unbreakable tie between different interpretations.1

Contrary to this authority, the majority opinion and the lead 

concurrence apply the rule of lenity to garden-variety ambiguity.2 In doing 

so, today’s ruling usurps Congress’s power to define what conduct is subject 

to criminal sanction and creates grave ambiguity about the scope of federal 

criminal law. 

Under the majority’s rule, the defendant wins by default whenever the 

government fails to prove that a statute unambiguously criminalizes the 

defendant’s conduct. The majority holds that § 921(a)(24) is 

“unambiguous,” but claims that if the statute were ambiguous, it would 

1 Notwithstanding this Supreme Court precedent, there is robust scholarly debate 

about how much ambiguity triggers lenity. See, e.g., David S. Romantz, Reconstructing the 

Rule of Lenity, 40 Cardozo L. Rev. 523, 567 (2018) (cataloguing nine tests); Intisar S. 

Rabb, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179 (2018) (conducting empirical study of lenity cases); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 

95 N.Y.U. L. Rev. 918 (2020) (attacking the modern approach). This debate has crossed 

over to sitting Supreme Court Justices, who are free to explore whether they might change 

the law that binds us. Compare Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring), and Wooden, 142 S. Ct. at 1075 (Kavanaugh, J., concurring), with 

Wooden, 142 S. Ct. at 1084 (Gorsuch, J., concurring in the judgment) (questioning the 

“grievous” ambiguity standard). 

2 In this respect, today’s ruling departs from our many cases that follow binding 

Supreme Court law. See, e.g., Gonzalez v. CoreCivic, Inc., 986 F.3d 536, 539 (5th Cir. 2021)

(Ho, J.) (affirming that the rule of lenity “has force only where a law is grievously ambiguous, meaning that the court can make no more than a guess as to what the statute means” 

(cleaned up)). However, the recent trend in our circuit, culminating here, has been to lower 

the bar for lenity beneath the floor presently set by the Supreme Court. See, e.g., United 

States v. Hamilton, 46 F.4th 389, 397 n.2 (5th Cir. 2022) (Elrod, J.) (applying lenity to “resolve all reasonable doubts about the meaning of [the criminal statute] in [the defendant’s]

favor” and asserting that lenity applies where “there is some doubt about the meaning” of 

the statute). 

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invoke the rule of lenity.3 In making this assertion, the majority assumes that 

the statute would necessarily be so ambiguous that “all traditional tools of 

statutory construction” would “fail to provide meaningful guidance.” Yet 

the majority does not explain how the tools upon which it relied to interpret 

the statute—dictionaries, grammar, and corpus linguistics—would be 

useless to resolve an interpretive debate if the statute were ambiguous. So 

the majority rests on an unstated and unsupported leap: ambiguous statutes 

are always grievously ambiguous. In effect, this means the rule of lenity 

would apply to decide any ambiguity in Cargill’s favor.4 

The lead concurrence adopts an equally low threshold for lenity. 

Unlike the majority, the concurrence concludes that § 921(a)(24) is

ambiguous. But instead of relying on familiar techniques to resolve the 

ambiguity, the concurrence merely asserts that this is “an easy case for 

invoking the rule of lenity.” The concurrence first invokes lenity because it 

cannot decide whether “single function of the trigger” means that “the 

trigger acts once” or “the shooter acts once on the trigger,” and so “the 

statute appears to be in equipoise.” This dilemma is of the concurrence’s 

own making. The concurrence contrives an impossible task by isolating the 

phrase “single function of the trigger” from the rest of the provision.5

 

3 The only other court to find that bump stocks are not machineguns made a similar 

mistake. See United States v. Alkazahg, 81 M.J. 764, 784 (N-M. Ct. Crim. App. 2021) (asserting that defendant would prevail thanks to lenity if the court’s “statutory analysis 

[were] incorrect and the ambiguity could not be resolved”). 

4 The majority insists that this rule is limited to “this statute.” But by devising a 

special rule of lenity for guns, the majority substitutes its own policy preferences for Congress’s. 

5 Notably, the concurrence ignores the phrase “without manual reloading,” which 

immediately precedes “by a single function of the trigger” and refers to the action of a 

shooter (implied subject) on a gun (object). See 26 U.S.C. § 5845(b). It does so because 

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Further, the concurrence refuses to explain why it could not weigh relevant 

evidence, including legislative history and District Judge Ezra’s inferences 

drawn from expert testimony at trial, see Cargill, 20 F.4th at 1010, 1013, to 

determine whether the “mechanistic” interpretation prevails. 

The lead concurrence next invokes lenity because the text does not 

“definitive[ly] answer” the question of whether the statutory term 

“automatically” means “no human input,” not “less human input.” But 

just because both Cargill and the government “put[] forth [their] competing 

theories with great force” does not mean we are left to guess at and then 

invalidate what Congress intended. Maracich, 570 U.S. at 76 (cleaned up). 

More fundamentally, our court’s new lenity regime violates 

separation-of-powers principles. Article I gives Congress, “not the [c]ourt,” 

the power to “define a crime, and ordain its punishment.” United States v. 

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). As the Supreme Court has 

resolved, when properly limited to grievous ambiguity, lenity furthers this 

design. By breaking interpretive ties for the defendant where no other tool 

yields an answer, this canon keeps us from accidentally legislating crimes 

from the bench. But lenity is the enemy of Article I when applied to any 

ambiguity that might arise during statutory interpretation and that could be 

resolved using other interpretive tools. This is because statutory language 

can be ambiguous enough to bear multiple interpretations—even here, a 

“no rule of grammar” would compel us to read the statute “from the shooter’s perspective.” But the grammar is clear: a shooter is the implied subject of the sentence. Even if 

this conclusion were not apparent from context, we do not decide what statutes mean by 

drawing inferences from the absence of a grammatical postulate—we use common sense. 

See United States v. Castleman, 572 U.S. 157, 183 (2014) (Scalia, J., concurring in part and 

concurring in the judgment); RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 

639, 645 (2012) (Scalia, J.). Here, the concurrence’s reading has the strange effect of anthropomorphizing the gun and eliding the shooter from the statute.

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“mechanistic” one—yet still evince intent to sanction specific conduct. 

Compare Hayes, 555 U.S. at 429 (acknowledging that a statute was “not a 

model of the careful drafter’s art” but declining to apply lenity where “text, 

context, purpose, and what little there is of drafting history all point in the 

same direction”), and United States v. Palomares, 52 F.4th 640, 647 (5th Cir. 

2022) (declining to apply lenity where “one approach [stood] prominently 

above the other interpretations”), with Ladner v. United States, 358 U.S. 169, 

178 (1958) (applying lenity where the choice between interpretations would 

“be based on no more than a guess as to what Congress intended”); cf. Einer 

Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev.

2162, 2196 (2002) (In the criminal law context, “judicial resolution of 

statutory ambiguities does not tread on the legislative role, but rather 

executes the legislative instructions as best as judges can.”). Invoking lenity 

to avoid all ambiguity thwarts the meaning of the text and substitutes our 

judgment for the People’s about what counts as a crime.6

Because our court holds that we have the power to narrow federal 

criminal law where ambiguity appears, today’s ruling, which conflicts with 

how every other circuit has interpreted § 921(a)(24), calls into question the 

range of conduct subject to criminal sanction.7

 Among other recent 

6 Such an expansive rule of lenity also “compels judges to abdicate the judicial 

power without constitutional sanction.” Baldwin v. United States, 140 S. Ct. 690, 691 

(2020) (Thomas, J., dissenting from denial of certiorari). The Article III judicial power 

“requires a court to exercise its independent judgment in interpreting and expounding 

upon the laws” and “include[s] the power to resolve . . . ambiguities.” Perez v. Mortg. 

Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring in the judgment). Therefore, when lenity is used as a get-out-of-interpretation-free card—here, to avoid passing on 

the legality of machineguns—it is especially inconsistent with our constitutional role.

7 Of course, most criminal statutes are drafted by state legislatures, responding to 

imminent and present threats to public safety. Prohibitions on dangerous weapons are myriad. Many ban machineguns and define them, unambiguously I would say, along similar 

lines as Congress did in 1934. See, e.g., Tex. Penal Code § 46.01(9).

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decisions, we may have wrongly held that criminal defendants are ineligible 

for the First Step Act’s “safety valve” provision, 18 U.S.C. § 3553(f), if they 

fail to meet any one of the statute’s three requirements, see Palomares, 52 

F.4th at 647, and that 26 U.S.C. § 7202 criminalizes the willful failure to 

“either truthfully account for taxes or pay them over,” United States v. 

Sertich, 879 F.3d 558, 562 (5th Cir. 2018), because those statutes are not 

unambiguous. Moreover, given the ambiguities the concurrence perceives in 

“single function of the trigger” and “automatically,” it is probable that other 

machineguns cannot be outlawed under § 921(a)(24)—even guns that fire 

multiple bullets when the shooter holds down the trigger. After all, the 

concurrence says that it’s plausible that “automatically” means “no human 

input,” and the pressure needed to depress a trigger is plausibly human input 

within the meaning of the statute.8 

The concurrence argues that Congress could pass an “Analogue Act” 

that would explicitly go device by device, mechanistically, and define bump 

stocks as machineguns. This would work, the concurrence hypothesizes, 

because Congress passed a similar statute in the controlled substances 

context to regulate chemicals that were analogues to drugs named in an 

earlier act. See 21 U.S.C. §§ 802(32)(A), 813, 841(a)(1); McFadden v. United 

States, 576 U.S. 186, 188 (2015). Setting aside the obvious differences 

between guns and drugs—including the fact that a drug can be described with 

8 For example, devices called “auto-sears” that allow semiautomatic weapons to 

fire multiple rounds while the trigger is pulled are increasingly accessible to criminals. See 

Alain Stephens & Keegan Hamilton, The Return of the Machine Gun, The Trace (Mar. 

24, 2022). Even though these devices gravely threaten public safety and law enforcement, 

see Michelle Homer & Melissa Correa, ‘This Has to Stop’: 19 Houston-Area Suspects Charged 

in Federal Crackdown on Illegal Gun Switches, KHOU (Feb. 24, 2022); Florian Martin, The 

Man Who Shot and Killed an HPD Officer Last Week Used an Illegally Modified Handgun, 

Bodycam Footage Shows, Hous. Pub. Media (Oct. 13, 2021), it is uncertain after today’s 

ruling whether federal law can reach them. 

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a molecular formula and a gun cannot—the concurrence is mistaken. Under 

our court’s new lenity regime, it is unclear how Congress could draft such a 

statute while avoiding ambiguity as to what counts as a bump stock. As I 

explained, any ambiguity in the statute could be exploited to evade liability 

because those ambiguities must be construed in favor of defendants.

Indeed, after our court’s ruling today, it is not clear that the 

Controlled Substance Analogue Enforcement Act of 1986 is even operable in 

practice. In relevant part, this statute defines a “controlled substance 

analogue” as a substance “the chemical structure of which is substantially 

similar to the chemical structure of a controlled substance in schedule I or 

II.” 21 U.S.C. § 802(32)(A)(i) (emphasis added). Whether two substances 

have a “substantially similar” chemical structure may, in many cases, be 

ambiguous such that lenity would shield a manufacturer, distributor, or 

possessor of the analogue. This is not the result Congress intended. 

III.

Today, our court extends lenity, once a rule of last resort, to rewrite a 

vital public safety statute banning machineguns since 1934. In conflict with 

three other courts of appeals, our court employsits new lenity regime to carve 

out from federal firearms regulation the bump stock—a device that helped 

the Las Vegas shooter fire over a thousand rounds during an eleven-minutelong attack, at times shooting about nine bullets per second, killing at least 58 

people and wounding hundreds more. See Larry Buchanan et al., What Is a 

Bump Stock and How Does It Work?, N.Y. Times (updated Mar. 28, 2019). 

Therefore, our court uses lenity to legalize an instrument of mass murder. 

This is evident from our court’s attempt to confine its new lenity regime only 

to this statute, giving machinegun owners immunity from prosecution that is 

not shared by other offenders under the federal code. 

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For those reasons and the reasons stated in the panel opinion, I 

respectfully dissent.

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United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE, 

Suite 115

NEW ORLEANS, LA 70130

January 06, 2023

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing

 or Rehearing En Banc

No. 20-51016 Cargill v. Garland

USDC No. 1:19-CV-349

Enclosed is a copy of the court’s decision. The court has entered 

judgment under Fed. R. App. P. 36. (However, the opinion may yet 

contain typographical or printing errors which are subject to 

correction.)

Fed. R. App. P. 39 through 41, and 5th Cir. R. 35, 39, and 41 govern 

costs, rehearings, and mandates. 5th Cir. R. 35 and 40 require 

you to attach to your petition for panel rehearing or rehearing en 

banc an unmarked copy of the court’s opinion or order. Please 

read carefully the Internal Operating Procedures (IOP’s) following 

Fed. R. App. P. 40 and 5th Cir. R. 35 for a discussion of when a 

rehearing may be appropriate, the legal standards applied and 

sanctions which may be imposed if you make a nonmeritorious 

petition for rehearing en banc.

Direct Criminal Appeals. 5th Cir. R. 41 provides that a motion for 

a stay of mandate under Fed. R. App. P. 41 will not be granted simply 

upon request. The petition must set forth good cause for a stay 

or clearly demonstrate that a substantial question will be 

presented to the Supreme Court. Otherwise, this court may deny 

the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court 

and/or on appeal, and are considering filing a petition for 

certiorari in the United States Supreme Court, you do not need to 

file a motion for stay of mandate under Fed. R. App. P. 41. The 

issuance of the mandate does not affect the time, or your right, 

to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible 

for filing petition(s) for rehearing(s) (panel and/or en banc) and 

writ(s) of certiorari to the U.S. Supreme Court, unless relieved 

of your obligation by court order. If it is your intention to 

file a motion to withdraw as counsel, you should notify your client 

promptly, and advise them of the time limits for filing for 

rehearing and certiorari. Additionally, you MUST confirm that 

this information was given to your client, within the body of your 

motion to withdraw as counsel. 

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The judgment entered provides that each party bear its own costs 

on appeal.

 Sincerely,

LYLE W. CAYCE, Clerk

 By: _______________________ 

Nancy F. Dolly, Deputy Clerk

Enclosure(s)

Mr. Trevor Caldwell Burrus

Mr. John D. Cline

Mr. John Cutonilli

Mr. Joseph Greenlee

Mr. Bradley Hinshelwood

Mr. Michael Jean

Mr. Jeffrey Jennings

Mr. Robert Michael Miller

Mr. Stephen Obermeier

Mr. William Jeffrey Olson

Mr. Daniel Ortner

Mr. Joshua James Prince

Ms. Glenn Evans Roper

Mr. Richard Abbott Samp

Mr. Ian Simmons

Mr. Mark Bernard Stern

Ms. Abby Christine Wright

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