The Tenth Circuit on Friday reversed course and rescinded an en banc rehearing of a lawsuit challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ rule banning bump stocks over the dissent of five circuit judges.

According to the court’s opinion, a majority of the en banc panel voted to vacate its order granting the rehearing after considering briefs and oral argument, though the opinion does not state why.  Five judges — Chief Circuit Judge Timothy Tymkovich and U.S. Circuit Judges Harris L. Hartz, Jerome Holmes, Allison H. Eid and Joel M. Carson III — dissented in four written opinions.

Judge Tymkovich said the decision to vacate the en banc rehearing leaves a number of unresolved questions stemming from the circuit court’s previous decision in the suit, such as whether a precedent for deference to an agency’s decision-making applies when the government does not seek that deference.

Published in Law360