USCA Case #21-5045 Document #1997449 Filed: 05/02/2023 Page 1 of 26

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed May 2, 2023

No. 21-5045

DAMIEN GUEDES, ET AL.,

APPELLANTS

FIREARMS POLICY COALITION, INC.,

APPELLEE

v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND

EXPLOSIVES, ET AL.,
APPELLEES

Appeal from the United States District Court

for the District of Columbia
(No. 1:18-cv-02988)

On Petition for Rehearing En Banc

Before: SRINIVASAN, Chief Judge; HENDERSON***,

MILLETT**, PILLARD, WILKINS**, KATSAS*, RAO*,
WALKER****, CHILDS, and PAN*, Circuit Judges

ORDER
USCA Case #21-5045 Document #1997449 Filed: 05/02/2023 Page 2 of 26

Appellants’ petition for rehearing en banc and the

response thereto were circulated to the full court, and a vote
was requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/
Daniel J. Reidy
Deputy Clerk

* Circuit Judges Katsas, Rao, and Pan did not participate in

this matter.

** A statement by Circuit Judge Wilkins, joined by Circuit

Judge Millett, concurring in the denial of rehearing en banc, is
attached.

*** Circuit Judge Henderson would grant the petition for

rehearing en banc. A statement by Circuit Judge Henderson,
dissenting from the denial of rehearing en banc, is attached.

**** Circuit Judge Walker would grant the petition for

rehearing en banc. A statement by Circuit Judge Walker,
dissenting from the denial of rehearing en banc, is attached.
USCA Case #21-5045 Document #1997449 Filed: 05/02/2023 Page 3 of 26

WILKINS, Circuit Judge, with whom MILLETT, Circuit

Judge, joins, concurring in the denial of the petition for
rehearing en banc: Petitioners raised two arguments as reasons
of “exceptional importance” for granting the petition, see Fed.
R. App. P. 35(a)(2), namely (1) whether the interpretation of
the statutory terms defining a “machine gun” to include bump
stocks by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF” or the “Bureau”) is the best reading of the
statute, and (2) whether the purported ambiguity in the
statutory definition compels an interpretation in their favor
pursuant to the rule of lenity. The panel opinion thoroughly
addressed both arguments, see Guedes v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 45 F.4th 306 (D.C. Cir.
2022), and neither merit further review by our court.

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

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

I.

First, I must address some misconceptions about the

legislative and regulatory history.

“Representing the first major federal attempt to regulate

firearms, the [National Firearms Act of 1934] concentrated on
particularly dangerous weapons and devices such as machine
guns, sawedoff shotguns and silencers.” Lomont v. O’Neill,
285 F.3d 9, 11 (D.C. Cir. 2002). See Pub. L. No. 73-474, 48
Stat. 1236 (1934). As originally conceived, the Act and its
implementing regulations did not ban the possession of
machine guns outright; instead, they required a person seeking
to obtain a machine gun to file an application with the Treasury
Department, pay a hefty transfer tax, and submit a photograph,
fingerprints, and a certificate from a local law enforcement
official attesting their belief that the person intended to use the
firearm for lawful purposes. Lomont, 285 F.3d at 11–12. If the
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Treasury Department granted the application, the person’s
name and address, along with the serial number of the machine
gun, were placed in a registry. Id. The Act made the
manufacture, transfer, or possession of a machine gun without
Treasury approval and payment of applicable taxes unlawful.
See 26 U.S.C. § 5861. In 1986, Congress prohibited the
transfer or possession of machine guns, except by authorized
military or governmental officials, unless the person lawfully
possessed the machine gun prior to May 19, 1986. See Act of
May 19, 1986, Pub. L. No. 99-308, § 102, 100 Stat. 449 (1986);
see also 18 U.S.C. § 922(o).

As drafted in 1934, the National Firearms Act defined a

“machine gun” as follows:

The term “machine gun” means any weapon

which shoots, or is designed to shoot,
automatically or semiautomatically, more than
one shot, without manual reloading, by a single
function of the trigger. 1

1
As my dissenting colleagues point out, see Walker Op. 2 n.1;
Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920
F.3d 1, 44–45 (D.C. Cir. 2019) (Henderson, J., concurring in part and
dissenting in part), Congress amended the definition of machine gun
in 1968. The amendment deleted the words “or semiautomatically”
from the above-quoted sentence. Pub. L. No. 90-618, 82 Stat. 1213,
1231 (1968). The 1968 Act also added a second sentence specifying
that “the frame or receiver” of the weapon, or “any combination of
parts designed and intended” to convert a weapon into a machine gun
or to assemble a machine gun, also qualified as a machine gun. Id.
The legislative history clearly indicates that Congress did not
consider the deletion of “or semiautomatically” to be a substantive
change, because Congress stated “[t]his subsection defines the term
‘machinegun’ and the first sentence is existing law.” S. Rep. No. 90-
1501, at 45 (1968) (section-by-section analysis of the bill); see also
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Pub. L. No. 73-474, § 1(b), 48 Stat. 1236, 1236 (1934).

Petitioners and my dissenting colleague complain that the
panel’s conclusion that “a ‘single function of the trigger’ is best
understood as a ‘single pull of the trigger’ and ‘analogous
motions’” is somehow novel. Pet. at 11 (quoting Guedes, 45
F.4th at 315, 317); Walker Op. 6–7. Not so.

Both the Senate and House reports on the National

Firearms Act explained that the bill “contains the usual
definition of machine gun as a weapon designed to shoot more
than one shot without reloading and by a single pull of the
trigger.” S. Rep. No. 73-1444, at 2 (1934) (quoting H.R. Rep.
No. 73-1780 (1934)) (emphasis added). Immediately
following the Act’s passage, the Treasury Department
published a letter ruling defining a machine gun as “a
semiautomatic pistol or an autoloading pistol when converted
into a weapon which shoots automatically, that is, one capable
of discharging the entire capacity of its magazine with one pull
of the trigger. . . .” Rev. Rul. XIII-38-7035, S.T. 772, 13-2
C.B. 433–34 (Jul.-Dec. 1934) (emphasis added). 2 Thus,

Federal Firearms Legislation, Hearings before the Senate Judiciary

Committee, Juvenile Delinquency Subcommittee, 90th Cong. 135
(1968) (quoting from section-by-section analysis submitted to
Congress by Hon. Sheldon S. Cohen, Commissioner of Internal
Revenue) (“This subsection defines the term ‘machine gun’ and the
first sentence is existing law.”). Accordingly, attempts to rely upon
the 1968 deletion of “or semiautomatically” to narrow the reach of
the text, see Pet. at 12; Walker Op. 8–9; Guedes, 920 F.3d at 44–45
(Henderson, J., concurring in part and dissenting in part), are without
merit.
2
This 1934 letter ruling was not cited in the briefing or in the panel
opinion. I found it when performing subsequent research after the
rehearing petition was filed.
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“single function of the trigger” was construed as equivalent to
“single pull” of the trigger at the outset.

Significantly, the 1934 Treasury letter ruling defines

machine gun consistent with how a bump stock operates,
because it is a device that is “capable of discharging the entire
capacity of its magazine with one pull of the trigger.” 13-2
C.B. at 434. As the District Court found, “[o]nce the shooter
pulls the trigger, a bump stock harnesses and directs the
firearm’s recoil energy, thereby forcing the firearm to shift
back and forth, each time ‘bumping’ the shooters stationary
trigger finger. The shooter is thus able to reengage the trigger
without additional pulls of the trigger.” Guedes v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 520 F. Supp. 3d 51,
58 (D.D.C. 2021) (emphasis added). Petitioners did not
properly challenge the predicate for these factual findings when
proposed by the government at the summary judgment stage,
and they did not challenge the District Court’s factual findings
as clearly erroneous on appeal. See Guedes, 45 F.4th at 317–
18. Petitioners’ attempt to wriggle out of these findings at the
rehearing stage, see Pet. at 10 n.2, comes way too late and is at
least doubly forfeited.

I refer to this 1934 letter ruling not because its

interpretation is binding upon or must be deferred to by this
Court. Instead, it bears mention because it refutes Petitioners’
contention that the 2018 bump stock rule “contradicts eight
decades of interpretations by the Treasury Department and the
ATF.” Pet. at 15; see also Guedes, 920 F.3d at 46–47
(Henderson, J., concurring in part and dissenting in part). To
the extent the relative gravitas of the various letter rulings is
relevant to the debate, I note that the 1934 letter ruling was
public, issued by the Acting Commissioner of Internal
Revenue, and approved by the Secretary of the Treasury, see
13-2 C.B. at 440, whereas the bump stock letter rulings issued
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between 2008 and 2017 cited by Petitioners and the dissent
were all private, rather than public, and issued by subordinate
Bureau officials, see Administrative Record (“A.R.”) 424–84.
See 26 C.F.R. § 601.601(d)(2)(v)(d) (“Revenue Rulings
published in the Bulletin do not have the force and effect of
[regulations], but are published to provide precedents to be
used in the disposition of other cases, and may be cited and
relied upon for that purpose. No unpublished ruling or decision
will be relied on, used, or cited, by any officer or employee of
the Service as a precedent in the disposition of other cases.”).
Further, the suggestion by Petitioners and the dissent that
purchasers of bump stocks were entitled to rely on the 2008-
2017 private letter rulings is wholly without merit. See id.; see
also McCutchen v. United States, 14 F.4th 1355, 1368–70 (Fed.
Cir. 2021), cert. denied, 143 S. Ct. 422 (2022) (holding that
bump stock private letter rulings did not establish a property
right because the Bureau’s handbook, “which is public, states
that a [firearm] classification provided by letter is ‘subject to
change if later determined to be erroneous,’” and also because
the letter rulings were informal, unpublished, and not issued
through rulemaking); Hanover Bank v. Comm’r, 369 U.S. 672,
686 (1962) (“[P]etitioners are not entitled to rely upon
unpublished private rulings which were not issued specifically
to them[.]”).

Relatedly, the dissent’s characterization of the 2018 Rule

as Executive overreach ignores the constitutional and statutory
context and exaggerates what happened here. Walker Op. 1,
10–16. As we have previously held, Congress explicitly gave
the Secretary of Treasury “interpretative rulemaking power” in
the National Firearms Act. See Lomont, 285 F.3d at 16 (citing
26 U.S.C. § 7805(a)). Thus, the statute, and the Executive’s
power to “take Care that the Laws be faithfully executed,” U.S.
CONST. art. II, § 3, made it perfectly appropriate for the Bureau
to issue a rule explaining what it believed the statute meant and
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how it would enforce the law going forward. The 2018 Rule
was not an extraconstitutional “power grab[],” Walker Op. 1,
but rather a fitting response to many reasonable questions about
the Executive’s view of the scope of the statutory machine gun
prohibition and how it would be enforced following a national
tragedy. And while the Executive can pronounce its statutory
interpretation consistent with the constitutional order, the
judicial branch has the power and responsibility to render the
authoritative interpretation of the statute. There is no
constitutional crisis.

II.

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

is best understood as a ‘single pull of the trigger’ and
‘analogous motions,’ while automatically is best understood to
mean a ‘result of a self-acting or self-regulating mechanism.’”
Guedes, 45 F.4th at 317. I will let the panel opinion speak for
itself. I add only that the 1934 letter ruling, issued by the
Commissioner and adopted by the Secretary, is consistent with
the panel’s interpretation, and thus corroborates that the panel
interpretation is the best reading of the statute.

As the 1934 Cumulative Bulletin indicates, none other

than Robert H. Jackson—as Assistant General Counsel of the
Bureau of Internal Revenue—authored over two dozen
regulations, letter rulings, and opinion letters that were
published contemporaneously with the 1934 machine gun letter
ruling. 13-2 C.B., passim. We do not know whether then-Mr.
Jackson drafted or approved the 1934 machine gun letter
ruling, though it is probable. But we do know that, a few years
later, then-Justice Jackson warned that “if the Court does not
temper its doctrinaire logic with a little practical wisdom, it will
convert the constitutional Bill of Rights into a suicide pact.”
Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson,
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J., dissenting). The 58 people killed and approximately 500
wounded in Las Vegas by a shooter using bump stock devices
behoove us to heed Justice Jackson’s prescient admonition.
Where we can employ tools of statutory interpretation to derive
a reasonable interpretation of the statute, we should not find a
“grievous ambiguity” to rule in Petitioners’ favor pursuant to
the rule of lenity. Maracich v. Spears, 570 U.S. 48, 76 (2013).
One of the manufacturers of bump stocks bragged on its
website, “Did you know that you can do full-auto firing and it
is absolutely legal?” A.R. 840. We do not have to “guess as to
what Congress intended,” Maracich, 570 U.S. at 76, to
determine whether text prohibiting “any weapon which shoots
. . . automatically more than one shot, without manual
reloading, by a single function of the trigger,” 26 U.S.C. §
5845(b), covers a device that concededly replicates “full-auto
firing,” A.R. 840. “There is no war between the Constitution
and common sense.” Mapp v. Ohio, 367 U.S. 643, 657 (1961).

The petition for rehearing en banc is properly denied.

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KAREN LECRAFT HENDERSON, Circuit Judge, dissenting

from the denial of rehearing en banc: For the reasons explained
at the preliminary injunction stage in my separate panel
opinion, which is hereby incorporated by reference thereto,
Guedes v. ATF, 920 F.3d 1, 35–49 (D.C. Cir. 2019)
(Henderson, J., concurring in part and dissenting in part), I
dissent from the denial of rehearing en banc. And I echo Judge
Walker’s view that the case presents “question[s] of
exceptional importance.” D.C. Cir. R. 35(a)(2); see infra at 11–
16 (Walker, J., dissenting from denial of rehearing en banc).
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WALKER, Circuit Judge, dissenting from the denial of

rehearing en banc: Congress recently considered at least five
bills restricting or banning bump stocks. None passed. Yet
bump stocks are illegal anyway. That’s because the Bureau of
Alcohol Tobacco, Firearms, and Explosives stepped into
Congress’s shoes and criminalized owning a bump stock.

Like other power grabs by impatient agencies, the Bureau

decided Congress was taking too long. So it relied on a
misguided reading of an old statute to solve the problem itself.
According to the agency, that old statute had banned bump
stocks all along.

The Bureau’s overreach is troubling because it turns law-

abiding Americans into criminals. Before the Bureau issued its
rule, it spent a decade telling the public that bump stocks were
legal. After the rule, bump-stock owners who relied on that
advice are felons if they do not discard their devices.

Congress makes the laws — especially the criminal laws.

The executive branch does not. To reestablish that principle, I
would grant rehearing en banc.

Relying on a strained reading of an old statute, the Bureau

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

The Firearms Owners’ Protection Act of 1986 “effectively

banned private ownership of machine guns.” Guedes v. ATF,
920 F.3d 1, 35 (D.C. Cir. 2019) (Guedes I) (Henderson, J.,
concurring in part and dissenting in part) (citing Pub. L. No.
99-308, 100 Stat. 449). The Act made it a crime to “transfer or
possess a machinegun” that was not “lawfully possessed”
before 1986. 18 U.S.C. § 922(o)(1), (2)(B). To define
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“machinegun,” the Act drew on a long-standing definition in
the National Firearms Act of 1934, as amended in 1968: a
“machinegun” is a “weapon which shoots . . . automatically
more than one shot . . . by a single function of the trigger.” 26
U.S.C. § 5845(b). 1

For decades, the government interpreted that definition to

exclude guns that fire only a single bullet each time the trigger
moves. In 1955, for instance, the government said that a crank-
operated gatling gun was not a machinegun because it was “not
designed to shoot automatically . . . more than one shot with a
single function of the trigger.” Rev. Rul. 55-528, 1955 WL
9410. The crank just let the user fire the gun more quickly.

Fast forward to 2008. The Bureau relied on similar

reasoning to find that a bump stock did not turn a
semiautomatic gun into a machinegun. A bump stock replaces
the standard stock of a semiautomatic rifle. When a shooter
fires the rifle, it naturally recoils backwards into the shooter’s
shoulder. The bump stock captures that recoil energy,
returning the rifle forward. When that happens, the trigger
bumps into the shooter’s stationary trigger finger, firing the
weapon. The rifle will keep firing as long as the shooter keeps
forward pressure on the bump stock. In “ten letter rulings
between 2008 and 2017,” the Bureau said “bump-stock-type
devices” did not “qualify as machineguns” because they do not
work “automatically.” 83 Fed. Reg. 66,514, 66,517 (Dec. 26,
2018). Instead, they require “the maintenance of pressure by
the shooter” to work. Id. at 66,518.

1
The Act originally defined a machinegun as “any weapon which
shoots, or is designed to shoot, automatically or semiautomatically,
more than one shot.” Pub. L. No. 73-474, 48 Stat. 1236 (emphasis
added). The Gun Control Act of 1968 deleted the words “or
semiautomatically.” Pub. L. No. 90-618, 82 Stat. 1231.
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Then in 2017, a gunman using a bump stock killed 58
people and wounded 500 others in Las Vegas. In the wake of
that tragedy, Congress considered legislation to ban or restrict
bump stocks. See, e.g., H.R. 4168, 115th Cong. (2017); S.
1916, 115th Cong. (2017); S. 2475, 115th Cong. (2018); H.R.
4594, 116th Cong (2019); H.R. 5427, 117th Cong. (2021). Yet
for better or worse, those bills did not become laws.

In our system of separated powers, that should have been

the end of the story. Congress alone makes the laws. U.S.
Const., Art. I. And Congress has not yet decided to ban bump
stocks. If that is bad policy, Americans can show their
disapproval at the ballot box by voting out their representatives.

But instead of letting the democratic process play out, the

Bureau took matters into its own hands. While legislative
efforts were ongoing, the Bureau issued a rule reinterpreting
the statutory definition of “machinegun” to include bump
stocks. 83 Fed. Reg. at 66,514. In doing so the Bureau
reversed the interpretation of the statute it had stuck to for a
decade. Id. at 66,517.

The Bureau also went further than some of the proposals

Congress rejected. For instance, the proposed Closing the
Bump-Stock Loophole Act would have required bump-stock
owners to “register” their devices with the Bureau. H.R. 4168,
115th Cong. (2017). The Bureau eschewed all such half
measures; its reinterpretation of the statute banned bump stocks
altogether.

After the Bureau’s interpretive about-face, Damien Guedes

and several other plaintiffs brought a challenge under the
Administrative Procedure Act. See Guedes v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 520 F. Supp. 3d 51
(D.D.C. 2021). Guedes argued that the Bureau lacked statutory
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authority to ban bump stocks because they are not covered by
the National Firearms Act’s definition of “machinegun.” Id. at
61. The district court rejected that argument and a panel of this
court affirmed. Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 45 F.4th 306, 317 (D.C. Cir. 2022)
(Guedes II). Guedes now petitions for rehearing en banc.

The Bureau’s rule misreads the National Firearms Act.

Under the Act, a “machinegun” must “shoot[ ] . . .
automatically more than one shot . . . by a single function of
the trigger.” 26 U.S.C. § 5845(b). A bump stock neither lets a
shooter “automatically [fire] more than one shot” nor lets him
do so by “a single function of the trigger.” Id. So Congress’s
ban on machineguns unambiguously does not cover them.

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

In 1934, when the statutory definition of “machinegun”

became law, “function” meant the “natural and proper action”
of a thing. Webster’s New International Dictionary 876 (2d ed.
1933). Something’s “function” was “[t]he special kind of
activity proper to [it]; the mode of action by which it fulfills its
purpose.” 4 Oxford English Dictionary 602 (1933); see also
Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2070
(2018) (courts should “interpret the words consistent with their
ordinary meaning at the time Congress enacted the statute”
(cleaned up)).

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

action” of the trigger lets a rifle modified by a bump stock fire
“more than one shot.” 26 U.S.C. § 5845(b). It does not. When
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shooting with a bump stock, only one shot fires each time the
trigger moves. See Guedes II, 45 F.4th at 320 (“a bump stock
device[ ] fires only one round with each mechanical movement
of the trigger”). “The trigger . . . must necessarily ‘pull’
backwards and release the rifle’s hammer . . . every time that
the rifle discharges . . . . The rifle cannot fire a second round
until both the trigger and hammer reset.” Aposhian v. Barr,
958 F.3d 969, 995 (10th Cir.) (Carson, J., dissenting). Every
shot requires a new movement of the trigger. If a gun fitted
with a bump stock fires more than one round with a single
movement of the trigger, it has malfunctioned.

The Bureau avoids that conclusion by rewriting “single

function of the trigger” as “single pull of the trigger.” 83 Fed.
Reg. at 66,514, 66,518. Because a shooter firing with a bump
stock need pull the trigger only once to start firing, the Bureau
says that a bump stock counts as a machinegun under the
statute. Id. at 66,514. After that initial pull, the bump stock
repeatedly pushes the trigger into the shooter’s stationary
finger, firing additional shots. No additional pulls are required.

But the Bureau provides scant evidence to support its edit

of the statute. Relying on a footnote from Staples v. United
States, 511 U.S. 600, 602 n.1 (1994), and a snippet of testimony
from a congressional hearing, the Bureau claims that its
interpretation is “consonant with the statute and its legislative
history.” 83 Fed. Reg. at 66,518 (quoting Akins v. United
States, 312 F. App’x 197, 200 (11th Cir. 2009)).

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

to mean something different. True, in Staples, the Supreme
Court described an automatic weapon as one that “fires
repeatedly with a single pull of the trigger.” 511 U.S. at 602
n.1. But it did so in a footnote describing background facts, not
when definitively interpreting the National Firearms Act. See
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United States v. Olofson, 563 F.3d 652, 657 (7th Cir. 2009) (the
Staples footnote “was providing a glossary for terms frequently
appearing in the opinion” and not “interpreting a statute”).

That leaves the agency with a solitary sentence from a

committee hearing on the 1934 National Firearms Act to
support its interpretation. There, the National Rifle
Association’s then-president testified that a machinegun is a
weapon “capable of firing more than one shot by a single pull
of the trigger, a single function of the trigger.” 83 Fed. Reg. at
66,518 (quotation marks omitted). But legislative history is
notoriously unreliable. The text of the statute controls, not a
throw-away line cherry-picked from the 170-page record of a
congressional hearing. See National Firearms Act: Hearings
Before the Committee on Ways and Means, H.R. 9066, 73rd
Cong. (1934); see also Epic Systems Corp. v. Lewis, 138 S. Ct.
1612, 1631 (2018) (warning against “divin[ing] messages from
congressional commentary”). 2

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

panel offered a different explanation for why “function” really
means “pull.” It reasoned that “function” means an “activity;
doing; [or] performance,” and “the shooter’s pull is the single

2
To the agency’s evidence, Judge Wilkins’s eagle-eyed research
adds a 1934 tax ruling. Wilkins Op. 3. There, the Treasury said a
“semiautomatic” or “autoloading” pistol becomes a “machine gun”
when converted to “discharg[e] the entire capacity of its magazine
with one pull of the trigger.” Rev. Rul. XIII-38-7035, S.T. 772, 13-
2 C.B. 433–34 (Jul.-Dec. 1934). True, that ruling is probative of the
original public meaning of the Act. But tax rulings can be mistaken,
even when they may have been written by Robert Jackson. Cf.
Horace, Ars Poetica (“sometimes even good Homer nods off”). And
here, for the reasons explained above, strong textual clues counsel
against equating, as the Treasury did, “single function of the trigger”
with “one pull of the trigger.”
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‘activity’ or ‘performance’ of the trigger that causes the gun to
shoot automatically more than one shot.” Guedes II, 45 F.4th
at 315 (quotation marks omitted). But that focuses on the
reason why the trigger moves, not, as the statute requires, on
how often the trigger moves. That gets it backwards. The
statute is indifferent about why the trigger moves — pull,
bump, or otherwise — it looks only to how many shots are
fired each time the trigger moves.

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

Congress knows how to write “single pull of the trigger” when
it wants to. Indeed, the National Firearms Act’s definition of
“rifle” uses that phrase. See 26 U.S.C. § 5845(c) (a rifle “fire[s]
only a single projectile through a rifled bore for each single pull
of the trigger”); see also 18 U.S.C. § 921(a)(5) (a shotgun
“fire[s] through a smooth bore either a number of ball shot or a
single projectile for each single pull of the trigger”). Yet the
panel’s interpretation of “function” gives no meaning to
Congress’s decision to use “single function” in one place and
“single pull” in another. Cf. Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 170 (2012)
(courts should pay attention to meaningful variation in
statutory language).

Even if the agency is right that “function” means “pull,” it

is still not clear that the statute covers bump stocks. The agency
claims, and the panel accepts, that a “pull” of the trigger can
include other “analogous” ways of “activat[ing] . . . a trigger”
like a “push, or some other action.” 83 Fed. Reg. at 66,515,
66,518 n.5; see also Guedes II, 45 F.4th at 311 (the statute
covers a “single pull of the trigger and analogous motions.”).
Here, it is undisputed that a bump stock works by bumping the
trigger into the shooter’s stationary finger, thus firing the
weapon. So why does that not count as a motion that is
analogous to a “pull of the trigger”? The agency has no answer.
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And if a bump is analogous to a pull, then rifles fitted with
bump stocks are not machineguns under the National Firearms
Act. Each bump, like each pull, fires one bullet. A single
action never causes the rifle to fire more than one shot.

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

A machinegun must “shoot[ ] automatically more than one
shot.” 26 U.S.C. § 5845(b) (emphasis added). A bump stock
does not.

In 1934, “automatically” meant “having a self-acting or

self-regulating mechanism,” Webster’s New International
Dictionary 187 (2d ed. 1934), or “[s]elf-acting under the
conditions fixed for it, going of itself.” 1 Oxford English
Dictionary 574 (1933).

A mechanism cannot be self-acting or self-regulating if it

requires user input to keep working. And a bump stock needs
constant input from the shooter if a gun is to keep firing. He
must keep forward pressure on the bump stock for it to work.
If he does not, the weapon will fire only one shot. So firing
with a bump stock requires “skill[ ] and coordination,” as
explained in comments on the Bureau’s proposed rule. 83 Fed.
Reg. at 66,531–32.

Rather than grappling with that inconvenient fact, the

Bureau largely ignores it. It says that a bump stock lets a
shooter fire more than one shot automatically because “the
device harnesses the firearm’s recoil energy in a continuous
back-and-forth cycle that allows the shooter to attain
continuous firing after a single pull of the trigger.” Id. at
66,519. That is true enough. But it does not account for the
undisputed fact that a shooter must maintain “forward pressure
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on the barrel” for a bump stock to let him fire more than one
shot. Guedes II, 45 F.4th at 318. And tellingly, the Bureau
reached a different conclusion for years, finding that bump
stocks require “multiple inputs by the user for each successive
shot.” Letter from Richard W. Marianos, ATF Assistant
Director Public and Governmental Affairs, to Rep. Ed
Perlmutter, at 1–2 (Apr. 16, 2013), https://perma.cc/46VL-
J88S.

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

important distinction between automatic and semiautomatic
guns. In 1934, the “difference between an ‘automatic’ and a
‘semiautomatic’ gun depended on whether the shooter played
a manual role in the loading and firing process.” Guedes I, 920
F.3d at 45 (Henderson, J., concurring in part and dissenting in
part). A semiautomatic gun is one “in which part, but not all,
of the operations involved in loading and firing are performed
automatically.” Id. (quoting Webster’s New International
Dictionary 187 (2d ed. 1934)). By contrast, after the first shot
is fired, an automatic gun reloads and fires automatically, so
long as the shooter keeps his finger on the trigger. Id. A gun
modified by a bump stock works semiautomatically: the
shooter plays a manual role in the firing process because he
must keep constant pressure on the bump stock.

If Congress had wanted to call a semiautomatic weapon a

machinegun, it could have. In fact, in 1934, it did. Originally,
the National Firearms Act defined machinegun to cover both
guns that fire more than one shot “semiautomatically” and
those that do so “automatically.” Pub. L. No. 73-474, 48 Stat.
1236. But in 1968, Congress deleted the word
“semiautomatically” from the statutory definition. Pub. L. No.
90-618, 82 Stat. 1213. The Bureau’s rule essentially writes it
back in.
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3

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

grandfather clause. That means that hundreds of thousands of
law-abiding Americans who legally bought bump stocks before
2018 now possess illegal property. What are they to do?
According to the Bureau, they should “destroy or abandon their
devices.” 83 Fed. Reg. at 66,530.

That suggestion is startling. For one thing, many bump-

stock owners purchased their devices in reliance on the
Bureau’s assurance that they were not prohibited. See 83 Fed.
Reg. at 66,517. For another, when Congress passed its ban on
machineguns in 1986, it grandfathered in “machinegun[s] that
w[ere] lawfully possessed before” the ban became effective.
18 U.S.C. § 922(o)(2)(B). It is hard to imagine that a Congress
that sought to protect lawful gun owners when it passed the ban
would have sanctioned the Bureau’s subsequent bait and
switch.

* * *

To sum up, a gun fitted with a bump stock is not a

machinegun because it does not automatically fire more than
one shot each time the trigger moves.

In reaching that conclusion, I join other judges who have

persuasively explained why the Act does not ban bump stocks.
See Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc);
Guedes I, 920 F.3d at 35 (Henderson, J., concurring in part and
dissenting in part); Gun Owners of America v. Garland, 19 F.
4th 890, 910 (6th Cir. 2021) (en banc) (Murphy, J., dissenting);
Aposhian v. Wilkinson, 989 F.3d 890, 896 (10th Cir. 2021)
(Tymkovich, C.J., dissenting from vacatur of en banc order).
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II

If this were an ordinary case about statutory interpretation,

I would not call for rehearing en banc, even if I disagreed with
the panel’s analysis. En banc review is reserved for
“question[s] of exceptional importance.” D.C. Cir. R. 35(a)(2).

But the bump stock ban is not ordinary. It’s the source of
a circuit split. It’s the product of an agency’s impatience with
Congress. And it’s an affront to 800 years of Anglo-American
legal history restricting the executive’s power to create new
crimes.

In short, even in an era of aggressive executive rulemaking,

the bump stock ban is a bridge too far.

En banc rehearing is often appropriate when a panel

opinion conflicts with other circuit-court decisions. Sweet
Home Chapter of Communities for a Great Oregon v. Babbitt,
30 F.3d 190, 195 (D.C. Cir. 1994) (Silberman, J., dissenting
from denial of rehearing en banc) (“[T]he issue would seem of
sufficient importance, particularly in light of the circuit split.”);
cf. D.C. Cir. R. 35(b)(1)(B) (litigants should flag circuit splits
in their en banc petitions).

Here, circuits are split on the best reading of the National

Firearms Act’s definition of “machinegun.”

The Fifth and Sixth Circuits have held, as I would, that the
Act does not let the Bureau ban bump stocks. See Cargill, 57
F.4th at 447; Hardin v. Bureau of Alcohol, Tobacco, Firearms
and Explosives, 2023 WL 3065807 (6th Cir. 2023). The Tenth
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Circuit upheld the Bureau’s rule, as did this Court. Aposhian,
958 F.3d at 989; Guedes II, 45 F.4th at 310.

Two further factors weigh in favor of reconsideration en

banc.

The bump-stock ban is a glaring example of an

increasingly common story:
1. Congress considers a highly controversial solution to a
modern problem that attracts great public attention.
2. Despite that attention, Congress does not pass
legislation addressing it.
3. The executive then finds within an old statute the power
to address the problem that Congress did not.

That is also what happened with student loan forgiveness.

Compare H.R. 6800, 116th Cong. (2020) with Loan
Forgiveness Fact Sheet, White House (Aug. 24, 2022). And
the COVID vaccine mandate. NFIB v. OSHA, 142 S. Ct. 661,
662 (2022). And the COVID eviction moratorium. Alabama
Association of Realtors v. HHS, 141 S. Ct. 2485, 2486 (2021).
And an attempted nationwide shift away from coal-fired power
stations. West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022).
And efforts to build a wall at our southern border. See
Proclamation 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019)
(declaring an emergency at the southern border to get more
funding than Congress had appropriated). And net neutrality.
United States Telecom Association v. FCC, 855 F.3d 381, 476
(D.C. Cir. 2017) (Kavanaugh, J, dissenting from denial of
rehearing en banc) (“Congress has debated net neutrality for
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many years, but Congress has never enacted net neutrality
legislation or clearly authorized the FCC to impose common-
carrier obligations on Internet service providers.”).

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

The point is that the executive branch is acting when Congress
does not. That intrudes on Congress’s constitutionally-
assigned role and disincentivizes it from legislating in the
future. Why would Congress bear the political costs of passing
laws when it can let bureaucrats shoulder them instead? See
Elena Kagan, Presidential Administration, 114 Harv. L. Rev.
2245, 2255–56 (2001) (Congress sometimes enacts “open-
ended grants of power” in order to “pass on to another body
politically difficult decisions”).

I will not rehash here all the reasons why lawmaking by the
executive is problematic. I’ve written about it before.
American Lung Association v. EPA, 985 F.3d 914, 996–97
(D.C. Cir. 2021) (Walker, J. concurring in part and dissenting
in part), overruled by West Virginia, 142 S. Ct. at 2614. So
have many of our nation’s finest judges and scholars. See, e.g.,
Baldwin v. United States, 140 S. Ct. 690, 691 (2020) (Thomas,
J., dissenting from denial of certiorari); Steven G. Calabresi et
al., The Rise and Fall of the Separation of Powers, 106 Nw. L.
Rev. 527, 545–46 (2012). And Madison before them. The
Federalist No. 48 (J. Madison). And Montesquieu before him.
1 Montesquieu, The Spirit of the Laws 151–62 (Thomas Nugent
trans. 1777).

The Bureau’s rule turns law-abiding bump-stock owners

into criminals. But the Anglo-American legal system has long
restricted the executive branch’s power to create new crimes.
Crimes are made by legislation, not executive fiat.
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That principle has its roots in Magna Carta. After King

John used “summary process” to “arrest and imprison[ ]”
Englishmen on “administrative order[s],” English Barons
forced him to agree to a new set of limits on his power. J.C.
Holt, Magna Carta 276 (3d ed. 2015). Chief among those
limits was a commitment that “[n]o free man shall be arrested
or imprisoned . . . except by the lawful judgment of his peers
or by the law of the land.” Magna Carta, Ch. 39 (1215). After
1215, the King could not punish an Englishman “without the
application of general rules to the case by a tribunal of [his]
peers.” Nathan S. Chapman & Michael W. McConnell, Due
Process as Separation of Powers, 121 Yale L.J. 1672, 1682
(2012). Those “general rules” were the “law of the land,” the
“standing law that governed all of the King’s subjects in
England.” Id. No longer could the King impose criminal
punishment whenever it suited his whims.

Hard-won by the English Barons, that right was cherished

by the American colonists. It was their inheritance as
Englishmen. And when they enumerated the limits of a central
government in their new nation, the founders guaranteed that
“life, liberty, or property” may not be taken “without due
process of law.” U.S. Const. Amend. V.

That means that “our Government [must] proceed . . .

according to written constitutional and statutory provisions . . .
before depriving someone of life, liberty, or property.” Nelson
v. Colorado, 581 U.S. 128, 150 n.1 (2017) (Thomas, J.,
dissenting) (quotation marks omitted); see also Pacific Mutual
Life Insurance Co. v. Haslip, 499 U.S. 1, 28 (1991) (Scalia, J.,
concurring) (noting that the phrase “due process of law” meant
“law of the land”). In other words, the executive branch may
prosecute only those criminal offenses that Congress has
authorized by law. The Due Process Clause “was a separation-
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of-powers concept designed as a safeguard against unlicensed
executive action, forbidding only deprivations not authorized
by legislation or common law.” United States v. Vaello
Madero, 142 S. Ct. 1539, 1545 (2022) (Thomas, J., concurring)
(quotation marks omitted).

To Magna Carta’s guarantee of due process, the

Constitution added a second safeguard — an independent
legislature, beholden in no way to the Executive. Article I’s
Vesting Clause makes clear that Congress alone has the
“legislative power.” U.S. Const. Art. I, § 1.

“Perhaps the most important consequence of th[at]

assignment concerns the power to punish. Any new national
laws restricting liberty require the assent of the people’s
representatives and thus input from the country’s ‘many parts,
interests and classes.’” Wooden v. United States, 142 S. Ct.
1063, 1083 (2022) (Gorsuch, J., concurring) (quoting The
Federalist No. 51 (J. Madison)). Indeed, since 1812, the
Supreme Court has said that Congress alone defines crimes and
fixes punishments. United States v. Hudson & Goodwin, 11
U.S. (7 Cranch) 32, 34 (1812) (“The legislative authority of the
Union must . . . make an act a crime [and] affix a punishment
to it.”); see also United States v. Wiltberger, 18 U.S. (5 Wheat.)
76, 95 (1820) (Marshall, C.J.) (“[T]he power of punishment is
vested in the legislative . . . department. It is the legislature . . .
which is to define a crime, and ordain its punishment.”).

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

the early 1900s, Congress began to delegate open-ended
powers to executive agencies. Kagan, supra, at 2255. And by
the late 1940s, the Supreme Court would uphold any delegation
if Congress provided an intelligible principle to guide the
agency. American Power & Light Co. v. SEC, 329 U.S. 90,
105 (1946); see also J.W. Hampton Jr. & Co. v. United States,
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276 U.S. 394, 409 (1928) (coining the “intelligible principle”
phrase). Under the Supreme Court’s light-touch nondelegation
doctrine, it has upheld as a valid delegation a statute
“endow[ing] the nation’s chief prosecutor with the power to
write his own criminal code governing the lives of a half-
million citizens.” Gundy v. United States, 139 S. Ct. 2116,
2131 (2019) (Gorsuch, J., dissenting); cf. Touby v. United
States, 500 U.S. 160, 165–66 (1991) (it is an open question
whether “something more than an ‘intelligible principle’ is
required when Congress authorizes another Branch to
promulgate regulations that contemplate criminal sanctions”).

Whatever the merits of that development, one safeguard

has not loosened. When Congress does delegate rulemaking
authority, the executive branch must remain faithful to the
statutory text. It may not use creative interpretations to grab
for itself even more power. But the Bureau’s rule does just
that, stretching the text of the National Firearms Act to
criminalize conduct that Congress has not.

* * *

The day before the Bureau’s rule, owning a bump stock was
legal. The day after, it carries a ten-year prison sentence — all
without Congress lifting a finger.

I would grant rehearing en banc to reestablish that the

power to make crimes stays where the Constitution put
it — with Congress.