Originally published in the Salt Lake Tribune on April 9, 2019

Clark Aposhian, a resident of Utah, is now the last man in America who can legally own a bump stock.

Last month, a formal bump stock ban went into effect. The ban ordered anyone who lawfully purchased one of these devices to either surrender or destroy it, or else face felony prosecution.

Before the ban, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had recognized repeatedly that bump stocks are a lawful firearm accessory and are not machine guns, because a user of a bump stock still must engage the trigger once for every shot fired. In a 2013 letter to Congress, ATF explained that bump stocks “are not subject to the provisions of Federal firearms statutes” and “ATF does not have the authority to restrict their lawful possession, use, or transfer.”

In a surreal bit of doublethink, ATF now insists that every bump stock previously sold was always a machine gun. So, not only are bump stocks now banned, but the agency claims it could always have prosecuted the owners of these devices — even though they were sold with ATF letters of approval attached.

To reach this absurd conclusion, ATF had to promulgate a bump stock rule that changed the statutory definition of “machine gun.” Under the new rule, a semiautomatic weapon is a machine gun if the shooter fires by bumping the trigger instead of “pulling” it. The new rule also defines “automatic” fire to include firing that requires “additional physical manipulation” of the weapon between shots, which used to be considered “manual” fire.

Owners of bump stocks, including Aposhian, challenged the ban across the country. Recently a divided D.C. Circuit Court of Appeals denied a request to stop the rule from taking effect. The court relied on the “Chevron deference,” a principle that courts are required to “accept the agency’s construction of the statute, even if the agency’s reading differs from … the best statutory interpretation.” And the court went even further, saying ATF’s construction of the statute was still “reasonable” even though “its position that bump stock owners have always been felons” “is incompatible with the Rule’s terms.”

Notably, “the government expressly disclaimed any entitlement to Chevron deference” and “went so far as to indicate that … it would prefer that the Rule be set aside rather than upheld under Chevron.” This concession came because the government knows its reading of a criminal statute is not entitled to any deference.

But the court decided ATF was not allowed to waive Chevron deference and ruled in ATF’s favor on that basis, even though it would result in making half a million law-abiding citizens into criminals. This brazen abdication of judicial independence shows just how unlawful much of modern administrative activity is. Article I, Section 1 of the Constitution vests “all” legislative power in Congress. No part of the Constitution allows a law enforcement agency to rewrite a law it disagrees with, nor does it allow a federal court to sit idly by while that same agency prosecutes citizens for violating the new, made-up law.

Aposhian’s challenge continues. The Denver-based 10th Circuit Court of Appeals temporarily enjoined ATF “from enforcing the Final Rule against Mr. Aposhian” while his case proceeds, leaving him as the only private citizen with a legal bump stock. His case offers the best remaining hope for stopping lawmakers from passing the buck to the executive branch on this difficult issue.

Caleb Kruckenberg is Litigation Counsel at the New Civil Liberties Alliance, which has filed legal challenges to the bump stock ban that are pending in the 10th Circuit and the Western District of Texas.