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Aposhian v. Garland

CASE: Aposhian v. Garland

STATUS: Active

NCLA ROLE: Counsel


ORIGINAL COURT: United States District Court for the District of Utah

DECIDING COURT: U.S. Court of Appeals for the Tenth Circuit

OPENED: January 7, 2019

AGENCIES: Bureau of Alcohol, Tobacco, and Firearms


Guidance Abuse

Agency guidance is easier to promulgate than formal rules and regulations, so agencies prefer to issue it. Such “guidance” supplies relatively informal indications of how an agency interprets rules and statutes. Although guidance is not permitted to bind Americans (unlike laws made by elected legislators), agencies treat guidance as binding and courts often fail to stop them.

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals? Those questions are what this case is about.

A federal statute bars Americans from owning machine guns but does not preclude them from owning bump stocks. Firearms instructor Clark Aposhian lawfully purchased a bump stock, but on March 26, 2019, the Bureau of Alcohol, Tobacco, Firearms and Explosives adopted a regulation changing the statutory definition of “machine gun” to include bump stocks. By rewriting the statute, ATF turned Mr. Aposhian and more than 500 thousand other law-abiding Americans into felons, subject to a potential 10-year prison sentence if they did not destroy or divest themselves of possession, even though owning a bump stock was lawful under the federal statute at the time of purchase.

NCLA represents Mr. Aposhian in challenging this unconstitutional rewriting of a federal statute. The case is not about whether bump stocks should be banned. Instead, it is about whether ATF acted lawfully in how it banned them. NCLA contends that agencies may not rewrite any statutes, let alone federal criminal statutes.

Mark Chenoweth
President and Chief Legal Officer

Memorandum Decision & Order Denying Plaintiff’s Motion for Summary Judgment & Granting Defendants’ Motion for Summary Judgment

September 29, 2023 | Read More

Plaintiff’s Reply in Support of Motion for Summary Judgment and Response to Cross Motion

March 6, 2023 | Read More

Defendants’ Response to Plaintiff’s Motion for Summary Judgment and Cross Motion

February 13, 2023 | Read More

Plaintiff’s Motion for Summary Judgment

January 5, 2023 | Read More

Supplemental Brief for Petitioner

December 8, 2021 | Read More


Watch: NCLA Video Explains Why U.S. Supreme Court Must Resolve Chevron Deference Discord

October 14, 2021

Twenty States Among Amici Curiae Supporting NCLA’s Chevron Deference Cert. Petition at SCOTUS

September 7, 2021

NCLA Asks Supreme Court to Decide Three Chevron Deference Questions ATF’s Bump Stock Ban Poses

August 2, 2021

Chevron Is Admin. Law’s “Lord Voldemort” Say Tenth Cir. En Banc Dissenters in Bump Stock Ban Case

March 5, 2021

NCLA Reply Brief Argues ATF’s Rule Banning Bump Stocks Exceeds Agency’s Legal Authority

December 3, 2020


Commentary: ATF ruling leaves Utah with the last bump stock standing

April 9, 2019

Will courts allow Congress to pass the bump stock buck?

April 5, 2019

Bump Stock Rule Puts Constitution In The Crosshairs

March 1, 2019




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