[00:00:00] Speaker 00:
Case number 21-5045.

[00:00:03] Speaker 00:
Damien Gettys et al.

[00:00:04] Speaker 00:
At balance.

[00:00:05] Speaker 00:
Firearms Policy Coalition, Inc.

[00:00:07] Speaker 00:
CA 18-3083.

[00:00:10] Speaker 00:
Versus Bureau of Alcohol, Tobacco, Firearms and Explosives et al.

[00:00:14] Speaker 00:
Mr. Jaffee for the at balance.

[00:00:15] Speaker 00:
Mr. Stern for the at police.

[00:00:18] Speaker 02:
Good morning, council.

[00:00:20] Speaker 02:
Mr. Jaffee, please proceed when you're ready.

[00:00:22] Speaker 03:
Good morning, Mr. Chief Judge, and may it please the court.

[00:00:26] Speaker 03:
As I said, I'm Mr. Jaffe.

[00:00:28] Speaker 03:
I represent the appellants.

[00:00:29] Speaker 03:
And this case can be dealt with in one of two ways.

[00:00:33] Speaker 03:
One, we can just go straight statutory interpretation.

[00:00:36] Speaker 03:
I believe this court has already held that the statute at issue here is ambiguous.

[00:00:40] Speaker 03:
And while it has posited that

[00:00:42] Speaker 03:
ATF's interpretation of that statute is permissible, neither this court nor the court below has held that it is the best interpretation.

[00:00:51] Speaker 03:
We would actually argue that it is perhaps the worst interpretation, but certainly not the best interpretation.

[00:00:58] Speaker 03:
If the court wants to engage in that discussion rather than just assume that for purposes of what's already been decided,

[00:01:04] Speaker 03:
we can then go on to discuss what to do about Chevron.

[00:01:07] Speaker 03:
Obviously, this court has ruled on that in the preliminary injunction context.

[00:01:10] Speaker 03:
And we have made arguments as to why Chevron should not apply, why the rule of lenity should apply, and why even if they theoretically could go differently, the government has affirmatively waived reliance on Chevron deference.

[00:01:24] Speaker 03:
However, I understand that the court has, in fact, issued an opinion on that.

[00:01:28] Speaker 03:
And if you disagree with my arguments as to why that opinion has been

[00:01:33] Speaker 03:
opened up again based on cases like Holly Frontier, based on Justice Korsuch's statement respecting the denial of cert, and based on other actions of other courts going en banc, highly divided en bancs, even if they don't resolve it in the way that I would prefer them to.

[00:01:51] Speaker 03:
We don't have to go there.

[00:01:52] Speaker 03:
I would just urge you that if you don't want to revisit the issues of Chevron deference, the issues of lenity, and the issues of waiver,

[00:01:59] Speaker 03:
I would strongly suggest either that you refer this case en banc and let the en banc court consider it if you feel bound by the earlier Gatiss decision, or an iron's footnote, if you agree with me that I'm right, but you nonetheless feel bound.

[00:02:13] Speaker 03:
If it turns out that you agree with me that the earlier decision should be reconsidered and you think the answer should come out the other way, you can always go that path.

[00:02:23] Speaker 05:
I'm a little confused, counsel.

[00:02:25] Speaker 05:
Are you saying that you believe that

[00:02:28] Speaker 05:
law of the case applies and we are bound by our prior ruling that the statute is ambiguous.

[00:02:35] Speaker 03:
No, I'm not saying that.

[00:02:37] Speaker 03:
I'm saying the law of the case does not apply.

[00:02:40] Speaker 03:
But I recognize that it's a close question.

[00:02:42] Speaker 03:
And I recognize that this court might think otherwise.

[00:02:45] Speaker 03:
So I'm just giving you a secondary alternative.

[00:02:47] Speaker 03:
But I would be happy to argue why the law of the case does not apply.

[00:02:50] Speaker 03:
I think Holly Frontier certainly is an intervening opinion by the Supreme Court dealing with the issue of waiver of Chevron that comes after the original Gatiss decision.

[00:03:01] Speaker 03:
That is reason enough to say that law of the case wouldn't apply there.

[00:03:05] Speaker 03:
I personally believe that Justice Korsuch's statement is a reason enough for this court to consider it.

[00:03:11] Speaker 03:
I also believe that given the rushed nature of the original case and the time constraints and the limited briefing, that law of the case, even under ordinary principles, would not apply.

[00:03:21] Speaker 03:
For example, the parties did not disagree.

[00:03:24] Speaker 05:
I think all of those are very strong arguments.

[00:03:27] Speaker 05:
I don't necessarily need you to go through all of that.

[00:03:31] Speaker 05:
I guess I was just confused because you started out by saying,

[00:03:35] Speaker 05:
This court has held that the statute is ambiguous as if we were bound by that holding.

[00:03:41] Speaker 03:
No, no, no.

[00:03:42] Speaker 03:
You could revisit that if you wish.

[00:03:43] Speaker 03:
This court certainly held that, but that holding was a preliminary holding.

[00:03:47] Speaker 03:
The district court has twice held that the statute was ambiguous.

[00:03:51] Speaker 03:
And certainly from that perspective, I think almost every other court

[00:03:56] Speaker 03:
Certainly every appellate court to rule on the issue has held that the statute's ambiguous.

[00:04:00] Speaker 03:
I don't believe any of the appellate courts have said that this is the best reading of the statute.

[00:04:05] Speaker 03:
They recognize that probably the better reading of the statute is a mechanical reading looking at the movement of the trigger, not the action of volitional action.

[00:04:14] Speaker 02:
I mean, the statute could be ambiguous, but the government's reading could still be the best one.

[00:04:19] Speaker 02:
It may not be unambiguously correct, but it still could be the best one conceptually.

[00:04:23] Speaker 03:
Theoretically.

[00:04:24] Speaker 02:
Can I just ask you one question on this, the law of the case preliminary matters that Judge Wilkins raised, which is in a reply brief, you say, well, this court should not be bound by a hasty and preliminary prior decision.

[00:04:34] Speaker 02:
I'm just, what did you mean by hasty?

[00:04:37] Speaker 03:
Well, so this case came up on a very expedited appellate basis because the government had a very short fuse for the regulation going into effect.

[00:04:45] Speaker 03:
And it was briefed in an expeditious way.

[00:04:47] Speaker 03:
It was decided in an expeditious way.

[00:04:49] Speaker 03:
There was an incredibly brief stay for us to seek a stay up Supreme Court.

[00:04:54] Speaker 03:
So all of it, literally all of it was hasty.

[00:04:57] Speaker 03:
The exact meaning of the word hasty, we were rushing to get it done, and I believe this court was rushing to decide it because the regulation was about to go into effect, even though we had expeditiously expeditiously challenged it, even before the regulation became fine when I hear hasty I think of something like rash but you you.

[00:05:14] Speaker 03:
No, no, I mean literally quickly done rapidly done under severe time pressures, which I think is one of the criteria for not applying law of the case.

[00:05:22] Speaker 03:
And I believe the case is Shelley, but I have to go back and double check my statement on that.

[00:05:26] Speaker 03:
But this court has held that where there was unusual time pressures, that's a reason to not apply law of the case.

[00:05:31] Speaker 03:
That's all I meant by hasty.

[00:05:33] Speaker 03:
While I obviously disagree with this court's earlier decision, obviously it was written and considered at length.

[00:05:41] Speaker 03:
It wasn't hasty in the sense of it was a two sentence decision.

[00:05:46] Speaker 03:
I'm not suggesting that.

[00:05:47] Speaker 03:
I literally mean it was done in haste.

[00:05:49] Speaker 02:
Can I take you to the statute?

[00:05:52] Speaker 02:
Yes.

[00:05:53] Speaker 02:
And so I'm going to give you a hypothetical.

[00:05:56] Speaker 02:
And just bear with me on the hypothetical, because I'm trying to isolate what work is being done by what words in the statute.

[00:06:04] Speaker 02:
Suppose you have a firearm that has a switch where it can switch back and forth between semi-automatic and automatic mode.

[00:06:11] Speaker 02:
And it's just a switch at the top.

[00:06:13] Speaker 02:
And if you switch it into automatic mode, well, if it's a semi-automatic mode, it works as a semi-automatic does, which is an individual pull of the trigger releases an individual bullet, but there's no need for manual reloading.

[00:06:27] Speaker 02:
But if it's switched into automatic mode, then what happens is it's not that it automatically starts firing.

[00:06:34] Speaker 02:
There still needs to be a pull of the trigger.

[00:06:37] Speaker 02:
But then once the trigger is pulled,

[00:06:40] Speaker 02:
there's going to be automatic firing after that.

[00:06:43] Speaker 02:
And each time there's a bullet that's expelled, the trigger is pulled.

[00:06:46] Speaker 02:
So the trigger keeps moving.

[00:06:49] Speaker 02:
Bullets are being released, but it's the switch to automatic and the initial pull of the trigger that occasions the sequence that results in firing multiple rounds.

[00:06:59] Speaker 03:
It would depend on how the trigger keeps pulling.

[00:07:02] Speaker 03:
I suppose.

[00:07:04] Speaker 03:
So if it's an internal mechanism, so the minigun, there's probably the best example of this, where what you would think of as a trigger doesn't exist on a minigun.

[00:07:14] Speaker 03:
There's a button that starts a sequence internally that keeps going until you take your finger off the button.

[00:07:20] Speaker 03:
And so I suppose the button becomes the trigger.

[00:07:23] Speaker 02:
Yeah, what I'm trying to do is get away from that where the button is the trigger.

[00:07:26] Speaker 02:
And I'm saying that there's the traditional trigger on the firearm.

[00:07:30] Speaker 02:
And we know that because if it's in semi-automatic mode, it works as the conventional trigger ordinarily does.

[00:07:37] Speaker 02:
And when the automatic mode, it's still the trigger that needs to be pulled to start the firing sequence.

[00:07:43] Speaker 02:
And each time the hammer relocks after that, it's just that there's some automation in there that allows the trigger to keep moving and the hammer releasing and bullets to keep being fired.

[00:07:53] Speaker 03:
So your description is gravitating between what is a genuine semi-automatic, but your description of an automatic weapon, either I'm missing it or you're describing what is in fact the standard issue automatic weapon for US Army, which is a select fire weapon where they can switch to automatic mode.

[00:08:11] Speaker 03:
But it becomes automatic by literally a single pull of the trigger.

[00:08:14] Speaker 03:
You do not release that trigger.

[00:08:16] Speaker 03:
The trigger does not keep moving back and forth.

[00:08:18] Speaker 03:
The trigger remains depressed and it keeps firing.

[00:08:21] Speaker 03:
The moment you have to release and repull it, that's semi-automatic.

[00:08:25] Speaker 02:
Yes, I'm intentionally giving you a weapon that's in between, because just to repeat the example and hopefully... But I'm saying it's not in between.

[00:08:32] Speaker 03:
Your example is literally the dividing line between automatic and semi-automatic.

[00:08:36] Speaker 03:
It's not in between.

[00:08:38] Speaker 02:
I thought the dividing line between two things is in between.

[00:08:40] Speaker 02:
Maybe I'm not understanding.

[00:08:42] Speaker 03:
Well, if the trigger has to reset and move forward again before the next shot can be fired by moving it backward again, that is the definition of a semi-automatic bullet.

[00:08:53] Speaker 02:
The point is, nobody has to move it back again.

[00:08:57] Speaker 02:
For the initial bullet to be fired, the switch has to be put into automatic mode.

[00:09:04] Speaker 02:
And then the trigger has to be pulled once.

[00:09:07] Speaker 02:
Once it's pulled once, it keeps on firing and the trigger keeps moving.

[00:09:12] Speaker 02:
And every time the trigger needs to move, nobody has to do it though.

[00:09:14] Speaker 02:
The hand could be removed from the weapon.

[00:09:16] Speaker 03:
The finger's not on, you're not moving the trigger.

[00:09:18] Speaker 03:
Exactly.

[00:09:19] Speaker 03:
Well, my view,

[00:09:22] Speaker 03:
would be that that is still not a single function of the trigger, because it's about the trigger.

[00:09:28] Speaker 03:
So I would say that's an automatic that fires automatically, but by multiple functions of the trigger.

[00:09:33] Speaker 02:
Right.

[00:09:33] Speaker 03:
So it doesn't interpret that.

[00:09:35] Speaker 02:
So it doesn't count as a machine gun?

[00:09:37] Speaker 03:
No.

[00:09:38] Speaker 03:
That would be the original Akins accelerator opinion by ATF, which I think the first version of that was correct.

[00:09:45] Speaker 03:
They obviously retracted that.

[00:09:47] Speaker 03:
and had a second version which said, well, the spring changes it.

[00:09:51] Speaker 03:
Your first opinion was right.

[00:09:53] Speaker 02:
It doesn't surprise me that that would be your argument because that is what I understand to be the logical upshot of your position on what a single function of the trigger is.

[00:10:01] Speaker 02:
And I guess just to bring the point home, that means that for a weapon that fires multiple rounds by virtue of a switch to automatic mode and one pull of the trigger,

[00:10:12] Speaker 02:
and then every other bullet is expelled automatically.

[00:10:14] Speaker 02:
Nobody has to do anything.

[00:10:15] Speaker 02:
You can remove your hand from the weapon.

[00:10:17] Speaker 02:
It just keeps on firing.

[00:10:19] Speaker 02:
It just happens to be that the trigger keeps moving, but it keeps on firing.

[00:10:22] Speaker 02:
That's not a machine gun.

[00:10:24] Speaker 03:
You have identified precisely the difference between the word pull and the word function, because in that instance, it is automatic, but it is automatic with

[00:10:33] Speaker 03:
a single pull of the trigger, but not a single function of the trigger.

[00:10:36] Speaker 03:
And we think function is trigger focused.

[00:10:38] Speaker 03:
So you're absolutely right.

[00:10:40] Speaker 03:
That is the line of the word function.

[00:10:42] Speaker 03:
And we would take the position that that's not covered.

[00:10:45] Speaker 03:
And whether that's good or bad policy, we take no position on that.

[00:10:49] Speaker 02:
I understand that.

[00:10:50] Speaker 02:
Yes, no, I understand that.

[00:10:52] Speaker 02:
And you would take the position that if Congress wanted to prohibit that, they could write a statute that more clearly does it.

[00:10:57] Speaker 02:
I'm just trying to understand that functionally, that weapon does everything that a fully automatic does, because it starts with a single pull.

[00:11:06] Speaker 02:
Now, it's true with the fully automatic.

[00:11:07] Speaker 02:
You maintain pressure on the trigger, and you have to leave it.

[00:11:10] Speaker 02:
You have to hold it pulled.

[00:11:12] Speaker 02:
But in terms of the outcome, there's a pull of the trigger, and then the hand could even be removed, and it keeps on firing.

[00:11:20] Speaker 03:
And it's still not, it's still not.

[00:11:23] Speaker 03:
That's not what a bump stop does, obviously.

[00:11:25] Speaker 03:
A bump stop, you remove your hand, it stops.

[00:11:27] Speaker 03:
You push too hard, it stops.

[00:11:30] Speaker 03:
You have to, right, there's a lot of volitional motion there.

[00:11:33] Speaker 03:
If you just hold it still,

[00:11:35] Speaker 03:
it shoots once and stops.

[00:11:37] Speaker 03:
So whatever the case may be there, that's not this.

[00:11:40] Speaker 03:
But I agree with you, that is our position.

[00:11:42] Speaker 02:
I'm just trying to understand the logical upshot of the way you read it.

[00:11:45] Speaker 02:
And with the bump stock,

[00:11:47] Speaker 02:
it's at least analogous in the following sense, that once there's the initial, I'll call it a pull, but I'm not trying to interject the human pull.

[00:11:55] Speaker 02:
I just mean the pull of the trigger as a mechanical act.

[00:11:58] Speaker 02:
Once there's the pull of the trigger as a mechanical act, as long as everything else stays the same, the same forward pressure stays, the finger stays on the extension ledge, and that could easily be a non-finger, it could be a stick.

[00:12:10] Speaker 02:
Everything else stays the same, the weapon keeps firing.

[00:12:16] Speaker 03:
only because you are manually engaging it and because the trigger is being released and re-engaged with your finger or stick, that's fine.

[00:12:24] Speaker 03:
But in fact, that proves the point in some ways, because literally every semi-automatic rifle can be shot that way, with or without a bump stock.

[00:12:33] Speaker 03:
every semi-automatic.

[00:12:35] Speaker 03:
I can stick a stick in the trigger guard of a semi-automatic rifle and push on the back of it with the right amount of pressure and it will fire in exactly the same manner that you've just described.

[00:12:46] Speaker 03:
It has nothing to do with the bump stock.

[00:12:48] Speaker 03:
It is a feature of recoil on semi-automatic weapons.

[00:12:52] Speaker 03:
What recoil does is reset the trigger.

[00:12:54] Speaker 02:
Yeah, that's a fair point, of course, and I understand the function of the bump stock is just to make that

[00:13:01] Speaker 02:
very easy to accomplish that same physical mechanism.

[00:13:06] Speaker 02:
It just makes it streamlined so that somebody who doesn't have the right equilibrium and the right skill to be able to maintain the forward pressure without the device can do it with the device or else I don't even know what the device does because it must be doing something.

[00:13:19] Speaker 03:
What it mostly does is it makes it a little easier to aim the thing probably by keeping the motion

[00:13:26] Speaker 03:
limited because if you put it on a belt loop or if you put it on a stick literally look I can take a stick in my in a c-clamp and press it against the stick in a c-clamp but it's going to bounce around right to be able to hold it a bump stock doesn't change anything I could take a tennis ball and put it in my shoulder and rest the stock against that a regular stock a fixed stock and it would have exactly exactly the same functionality as a bump stock because it would give it a little

[00:13:53] Speaker 03:
a little give, basically, but enable me to keep it aimed and steady.

[00:13:59] Speaker 03:
If anything, a bump stock makes it safer to bump fire semi-automatic.

[00:14:04] Speaker 03:
It doesn't make it any different.

[00:14:08] Speaker 05:
Can I ask you a question about the amendment from the 1934 statute to the 1968 version?

[00:14:18] Speaker 05:
Yes.

[00:14:19] Speaker 05:
So under the 19, the original definition of machine gun, what type of gun was a machine gun that was semi-automatic?

[00:14:33] Speaker 05:
What semi-automatic weapon could fire more than one shot without manual reloading by a single function of the trigger?

[00:14:44] Speaker 03:
I'm not aware of any, my understanding of that change in the language was that the concept of a semi-automatic weapon grew, and particularly the nomenclature of semi-automatic weapon grew after the fact.

[00:14:58] Speaker 03:
At the time that they did it, they would have called it a repeating rifle and they wouldn't have said that's semi-automatic.

[00:15:04] Speaker 03:
From their original perspective, semi-automatic just meant parts of it are automatic, parts of it aren't.

[00:15:11] Speaker 03:
It wasn't the modern understanding of the word semi automatic by 1968.

[00:15:16] Speaker 03:
We had a very different understanding of semi automatic weapons.

[00:15:19] Speaker 03:
They were a protected class, and that was why that word was removed.

[00:15:23] Speaker 03:
I think it's because of the evolution in the language.

[00:15:26] Speaker 03:
So I can't say that there was any semi-automatic weapon at the time.

[00:15:30] Speaker 03:
It was an ambiguity.

[00:15:31] Speaker 03:
It was an over-breath that grew with the growth in certain types of firearms and the growth in language.

[00:15:37] Speaker 05:
Then I don't understand what force your argument has

[00:15:44] Speaker 05:
that Congress narrowed the definition of machine gun when it removed the word semi-automatic in 1968.

[00:15:53] Speaker 05:
Because you're telling me that the language didn't do any work.

[00:15:57] Speaker 03:
Not in 1934, but in 1968, it made the statute over broad and would have covered many other weapons that were understood to be semi-automatic.

[00:16:06] Speaker 03:
And Congress not wanting that result, removed the word semi-automatic to get rid of that uncertain overbreath.

[00:16:14] Speaker 03:
Back in 34, it probably didn't have much of a role at all.

[00:16:17] Speaker 03:
It was just synonymous.

[00:16:19] Speaker 05:
By 68, it wasn't.

[00:16:21] Speaker 05:
Just so I'm clear, a World War II era 45 caliber semi-automatic handgun was not a machine gun even under the 1934 definition, right?

[00:16:35] Speaker 05:
Correct.

[00:16:36] Speaker 03:
Well, it was ambiguous, which is why Congress needed to remove the word.

[00:16:41] Speaker 05:
What was ambiguous about it?

[00:16:43] Speaker 03:
It was ambiguous whether it was semi-automatic.

[00:16:45] Speaker 05:
Look, the government's position- It was semi-automatic, but it didn't, under your theory, it didn't shoot more than one round with a single function of the trigger.

[00:16:55] Speaker 03:
Well, if you think of bump firing, it did in ATF's view.

[00:16:59] Speaker 03:
All semi-automatic weapons can be bump fired.

[00:17:02] Speaker 03:
In ATF's view, bump firing is an automatic process.

[00:17:05] Speaker 03:
You initiate it, and then it just keeps going by itself.

[00:17:08] Speaker 03:
And that's true with or without a bump stop.

[00:17:10] Speaker 03:
So on ATF's view, it would have been.

[00:17:13] Speaker 03:
I agree with you.

[00:17:14] Speaker 03:
On my view, it wouldn't have been.

[00:17:16] Speaker 05:
What regulation of bunk firing was ATF doing between 1934 and 1968?

[00:17:25] Speaker 03:
of bump firing?

[00:17:27] Speaker 03:
I don't believe any.

[00:17:28] Speaker 03:
I think the Akins accelerator was probably the first instance that they engaged in that question.

[00:17:33] Speaker 03:
But their original answer on the Akins accelerator was that it was neither automatic nor a single function of the trigger.

[00:17:40] Speaker 05:
Understood.

[00:17:41] Speaker 05:
I guess I'm trying to zero in then on between 1934 and 1968.

[00:17:46] Speaker 05:
It doesn't seem like there was any instance where

[00:17:53] Speaker 05:
the word semi-automatic was doing any real work in the statute because there was no consideration that a semi-automatic, the standard semi-automatic weapons, whether handgun or rifle, was a machine gun because there wasn't even any discussion about bump stocks or any other devices.

[00:18:16] Speaker 03:
Well, I agree with you that their removal of it was prophylactic, given their addition of the phrase semi-automatic in other areas and the evolution of semi-automatic weapons.

[00:18:27] Speaker 03:
I agree that beforehand, it did very little, if any, work.

[00:18:31] Speaker 03:
And whatever work it did would have also been done by the notion of single function of the trigger.

[00:18:36] Speaker 03:
So yes, that's true.

[00:18:38] Speaker 03:
But by 1968, when they were expanding gun crimes, when they were expanding regulated weapons like rifles,

[00:18:46] Speaker 03:
then it would start to do work.

[00:18:48] Speaker 03:
And they needed to take that word out.

[00:18:50] Speaker 03:
Otherwise, they would be creating the problem that they didn't want to create, which is overregulating semi-automatic rifles.

[00:18:58] Speaker 05:
I'm going to ask this question of the government as well, but I want to get your position on it.

[00:19:04] Speaker 05:
Yes.

[00:19:06] Speaker 05:
Today, under current regulation, this bump stock regulation is a Gatling gun, a machine gun.

[00:19:16] Speaker 03:
My answer is obviously no.

[00:19:19] Speaker 03:
And I believe that that opinion, the 1955 opinion, a manual Gatling gun where you press it by hand should be still not a machine gun.

[00:19:29] Speaker 05:
I'm not asking you whether it should be considered a machine gun or not.

[00:19:33] Speaker 05:
I'm asking you whether you believe that the ATF regulation encompasses a Gatling gun or not.

[00:19:44] Speaker 03:
Well, I believe the regulation would, but there is an extant opinion from 1955 overruled in part, but not as to a manual Gatling gun.

[00:19:56] Speaker 03:
But I believe the APF's current regulation would likely logically call a Gatling gun a machine gun now.

[00:20:04] Speaker 03:
So they would, I think they deny that.

[00:20:07] Speaker 03:
Much like I think they deny that a trigger crank or a binary trigger

[00:20:11] Speaker 03:
it makes something into a machine gun.

[00:20:13] Speaker 03:
So my answer is the prior opinion says no.

[00:20:18] Speaker 03:
ATF's rule, if you took it to its logical conclusion, would say yes.

[00:20:21] Speaker 03:
And that's why the rules are rational, is because it's contradictory to what they say elsewhere, much like, by the way, a binary trigger, which I think is a far cleaner example.

[00:20:31] Speaker 03:
So think about what a binary trigger does.

[00:20:33] Speaker 03:
You pull the trigger, it shoots, and then automatically resets.

[00:20:38] Speaker 03:
And it only shoots the next shot when you release it.

[00:20:41] Speaker 03:
But if you remember what a bump firing in general, what recoil does, if I held a gun with a binary trigger loosely, the recoil will cause it to release, firing a second shot.

[00:20:54] Speaker 03:
And remember, you only need two shots to be a machine gun.

[00:20:56] Speaker 03:
You don't need 50, you don't need them fast.

[00:20:58] Speaker 03:
It can be as slow as you want, as long as it shoots two automatically.

[00:21:02] Speaker 03:
And yet the ATF

[00:21:03] Speaker 03:
somehow thinks that that's not a machine gun while bump stocks are, when the most that a bump stock actually does is help you reset the trigger.

[00:21:12] Speaker 03:
It doesn't press it again for you.

[00:21:15] Speaker 03:
You have to do that with your own force.

[00:21:17] Speaker 03:
Whereas with a binary trigger, it is literally automatic, as in it's not dependent upon recoil.

[00:21:23] Speaker 03:
The trigger resets by itself.

[00:21:26] Speaker 03:
It's only the second shot that is a function of recoil.

[00:21:29] Speaker 05:
So tell me,

[00:21:31] Speaker 05:
Go ahead, Judge Rollins, sorry.

[00:21:33] Speaker 05:
Help me understand, I guess, your argument about how we're supposed to conceptualize kind of the ATF's authority and kind of how we're supposed to review this.

[00:21:51] Speaker 05:
And I guess what I wanna drill down on right at this moment is,

[00:21:56] Speaker 05:
There's a delegation of regulatory authority in the original 1934 Act and subsequently.

[00:22:12] Speaker 05:
When you say that we're not supposed to give this any Chevron deference,

[00:22:26] Speaker 05:
I mean, how do you conceive we are supposed to construe the delegation of authority to promulgate regulations?

[00:22:38] Speaker 03:
Well, to begin with, I would construe it the way ATF itself has construed it, which is it's a narrow implementing delegation, not a broad defining delegation.

[00:22:48] Speaker 03:
That's what ATF said in their briefs.

[00:22:50] Speaker 03:
That's what ATF said to the US Supreme Court.

[00:22:52] Speaker 03:
And to the extent that we're going to defer to them,

[00:22:55] Speaker 03:
I think that's worthy of deferring to them on a narrow understanding of what authority has been delegated to them.

[00:23:02] Speaker 03:
Putting aside all the non-delegation doctrine concerns and clear statements and guides, et cetera.

[00:23:08] Speaker 03:
So one, I would say, ATF doesn't think they have legislative authority.

[00:23:13] Speaker 03:
They think they have implementing authority.

[00:23:15] Speaker 03:
Like, you need to pay a tax.

[00:23:16] Speaker 03:
It needs to be on Tuesday.

[00:23:17] Speaker 03:
That's implementing authority.

[00:23:19] Speaker 03:
I even think that the grace period they gave for this regulation is an implementing authority.

[00:23:25] Speaker 03:
It is not a change in statement of what they think is illegal.

[00:23:28] Speaker 03:
It is a statement about when they will enforce it, recognizing that there's a due process problem with having switched midstream after encouraging everybody to buy bond stocks.

[00:23:38] Speaker 05:
So help me understand your position on this.

[00:23:41] Speaker 05:
Suppose Congress said, we think that

[00:23:51] Speaker 05:
that bump stocks raise some significant policy issues.

[00:23:57] Speaker 05:
But really, we think that the expertise of the executive, we're going to delegate to the executive to decide whether to classify them as machine guns or not.

[00:24:13] Speaker 05:
And we're fine with that.

[00:24:18] Speaker 05:
We're going to delegate that to the executive to make that decision by regulation.

[00:24:26] Speaker 05:
And if they decide to make it machine guns, then it's a crime and it has a 10-year penalty, up to 10-year penalty and whatever fine.

[00:24:37] Speaker 05:
Is it your position?

[00:24:40] Speaker 05:
that that is unconstitutional?

[00:24:43] Speaker 03:
Yes, that is exactly my position.

[00:24:46] Speaker 03:
If Congress said we think machine guns are bad and ATF will decide what's a machine gun and what's not a machine gun, thank you very much.

[00:24:52] Speaker 03:
I would say that is an insufficiently cabined delegation on a criminal matter, on a major question, an important policy question, you know, whether you want to do it on Gundy terms, whether you want to do it on

[00:25:04] Speaker 03:
So the other limits the major questions doctrine for Chevron, I would say that that is indeed an unconstitutional delegation that violates the separation of panelists, I understand here that it's less about fair notice, though somewhat than it is about.

[00:25:19] Speaker 03:
separation of powers concerns.

[00:25:21] Speaker 03:
I think there's, by the way, a very good discussion of this indirectly in the case that came out yesterday.

[00:25:26] Speaker 03:
I apologize for not sending it to you, but it literally came out yesterday, the Wooden case.

[00:25:30] Speaker 03:
There's a conversation between Justice Kavanaugh on one hand and Justice Gorsuch and Justice Sotomayor on the other hand, talking about the role of lenity and the separation of powers concerns that it implements.

[00:25:42] Speaker 03:
And I would say, yes, if Congress did what you've described, that would be a separation of powers violation.

[00:25:47] Speaker 03:
And we have indeed said that would be unconstitutional.

[00:25:49] Speaker 02:
None of those justice and wooden were in the majority, the ones that you just outlined.

[00:25:52] Speaker 03:
The majority didn't need to go there.

[00:25:56] Speaker 03:
I just, I think it's informative.

[00:25:57] Speaker 03:
That's all.

[00:25:58] Speaker 02:
Okay.

[00:26:00] Speaker 02:
Can I ask you about the rule itself then on this score?

[00:26:03] Speaker 02:
So the idea that what the rule does is to exercise prosecutorial discretion and defer prosecution.

[00:26:12] Speaker 02:
It seems very difficult to square with the language of the rule itself, which says, anyone currently in possession of a bump stock type device is not acting unlawfully unless they fail to relinquish or destroy their device after the effective date of this regulation.

[00:26:27] Speaker 03:
I agree that that one sentence sounds like they're making law rather than interpreting law.

[00:26:33] Speaker 03:
But there are 20 other sentences where, for example, where they're given an alternative where somebody says, how about you grandfather in existing bump stocks and only make this perspective?

[00:26:43] Speaker 03:
And they say, we have no discretion to do that because the language of the statute is plain.

[00:26:48] Speaker 03:
So there is some contradictory stuff in there.

[00:26:50] Speaker 03:
But overall, I think the gist of it is we are interpreting it and we're not going to prosecute you

[00:26:57] Speaker 03:
because that would be a due process violation.

[00:26:59] Speaker 03:
That would be an ex post-facto problem and an entrapment problem, to say the least, until we give you time to fix it.

[00:27:07] Speaker 02:
Have you ever heard of an exercise of prosecutorial discretion being described by reference to an effective date?

[00:27:14] Speaker 03:
Well, yes, I have.

[00:27:17] Speaker 03:
I think the ATF says, regularly, we will not

[00:27:20] Speaker 03:
start doing, we will give you a safe harbor to come into compliance before, but after a certain day.

[00:27:26] Speaker 02:
But did they frame that in terms of an effective date of a regulation?

[00:27:30] Speaker 03:
Not in the way that you read earlier, which says you're not acting illegally until x, but I think ATF has been remarkably consistent with that one exception of saying it's always been illegal, we were just wrong.

[00:27:43] Speaker 03:
And now we're fixing that to say we now think it's illegal.

[00:27:48] Speaker 03:
That has been ATF's consistent position.

[00:27:51] Speaker 03:
Look, the interesting thing from my perspective is as follows.

[00:27:55] Speaker 03:
Normally, we don't let lawyers change what the agency did.

[00:27:59] Speaker 03:
Here, we have the unusual circumstance that the lawyers are the agency.

[00:28:03] Speaker 03:
And the agency head, literally the attorney general who's in charge and ultimately has to sign off on all of this, signed the brief.

[00:28:11] Speaker 03:
So it's not like this is, you know, FERC and suddenly DOJ is giving a different answer than FERC did.

[00:28:17] Speaker 03:
This is literally the same agency or the same executive department making the choice.

[00:28:22] Speaker 03:
So I don't think that canon works quite as well here where they have, I think- Can I ask you- Yeah, thank you.

[00:28:31] Speaker 02:
Can I ask you just to follow up on Judge Wilkins' questions a little bit on-

[00:28:38] Speaker 02:
the way Chevron intersects with this regulatory apparatus, and particularly the question that's in this case and several others about Chevron's applicability in the criminal context?

[00:28:47] Speaker 02:
Yes.

[00:28:48] Speaker 02:
What's your view of what we do with a decision like Babbitt, which, of course, as a lower court, we're bound to follow a Supreme Court precedent.

[00:28:55] Speaker 02:
We're not supposed to predict where the Supreme Court's going to go.

[00:28:57] Speaker 02:
We apply the precedent that exists now in the most faithful way we can.

[00:29:02] Speaker 02:
And there is a decision, at least one, of the Supreme Court that applies Chevron deference, notwithstanding the fact that the interpretation has criminal consequences.

[00:29:12] Speaker 03:
So I would question whether that was a necessary holding, just from the perspective of how binding is it.

[00:29:18] Speaker 03:
I would say I don't think that part of Babbitt was necessary.

[00:29:20] Speaker 03:
And I think that's the part of the reasoning given in Al-Khazagh, which is the Navy Marine Court of Criminal Appeals, sort of said neither O'Hagan nor Babbitt was that necessary.

[00:29:32] Speaker 03:
So it wasn't technically a holding.

[00:29:33] Speaker 03:
You could go there.

[00:29:35] Speaker 03:
But I would also look to see what both Judge Sutton has said and what Justice Thomas and Justice Scalia said in that separate opinion, respecting the denial of cert, that said that is too much weight to put on the footnote in Babbitt.

[00:29:52] Speaker 03:
If you think otherwise, I agree, I have to go to the Supreme Court at some point.

[00:29:56] Speaker 03:
If you think that's fully binding, well then of course.

[00:29:58] Speaker 02:
I'm just asking for your guidance.

[00:30:01] Speaker 03:
My guidance is I don't think it's enough of a holding, a clear holding, that you're bound by it, particularly given other decisions by the Supreme Court seem to go the other way.

[00:30:10] Speaker 02:
So if we got the same issue as Babbitt, again, if we got the same issue as Babbitt.

[00:30:16] Speaker 03:
Well, hopefully you would say that we're not bound by it.

[00:30:19] Speaker 03:
It's not ambiguous, so it doesn't matter.

[00:30:21] Speaker 03:
Even if there's an alternative, you said, but of course we'd defer anyway.

[00:30:24] Speaker 02:
Can I just finish?

[00:30:26] Speaker 02:
So we got the same issue as Babbitt.

[00:30:30] Speaker 02:
It comes up again.

[00:30:31] Speaker 02:
Your view is that that part of Babbitt is not binding on us.

[00:30:36] Speaker 03:
if it's literally the same issue, I would decide on the clarity of the rule, not, well, so remember, Babbitt was more our deference, right?

[00:30:46] Speaker 03:
I thought Babbitt was them interpreting their own rule rather than interpreting the statute.

[00:30:50] Speaker 02:
But the Supreme Court has described Babbitt as a Chevron case.

[00:30:53] Speaker 02:
It did so in Mead.

[00:30:55] Speaker 03:
Fair enough.

[00:30:57] Speaker 03:
I think the answer is I would lean on the primary holding of Babbitt and not the secondary holding.

[00:31:03] Speaker 03:
And I certainly think that

[00:31:05] Speaker 03:
In light of the statement by Justice Scalia and Justice Thomas, in light of Judge Sutton's decisions, there is enough reason to question whether that single footnote of Babbitt should drive this much weight in a case.

[00:31:18] Speaker 03:
If you disagree with me, I understand that.

[00:31:20] Speaker 03:
But my guidance would be, I would say Babbitt can't carry that much weight.

[00:31:24] Speaker 03:
And so we're not going to treat it as if it was the primary holding of the decision.

[00:31:29] Speaker 03:
It was a single footnote that was a thumb on the scale that wasn't really necessary to the decision.

[00:31:34] Speaker 03:
And I treat it as such.

[00:31:35] Speaker 05:
How are we to interpret Chevron itself, which involved a regulation that had criminal penalties associated with it?

[00:31:44] Speaker 03:
I guess I would say that I don't think in Chevron the issue of lenity or the question of whether or not Chevron applies to criminal law was raised.

[00:31:53] Speaker 03:
And so while it was lurking in the background, while they certainly did something that would be inconsistent with my rule, I don't think they decided that question.

[00:32:00] Speaker 03:
So that would be how I would deal with that case and various others.

[00:32:05] Speaker 03:
O'Hagan, you know, it was in some of the briefs, obviously, but the court didn't talk about Lenity versus Chevron in O'Hagan, I don't think, even though it was briefed.

[00:32:16] Speaker 03:
But again, there's a sort of a standard canon of don't read more into it just because some party mentioned it or some amicus mentioned it doesn't mean the court decided it.

[00:32:25] Speaker 03:
And I wouldn't

[00:32:25] Speaker 03:
overextend the court's holdings.

[00:32:27] Speaker 03:
I don't think they would treat it as binding on them.

[00:32:30] Speaker 03:
And therefore, I don't think you need to treat it as binding on you.

[00:32:32] Speaker 07:
Well, let me ask you what, I'm sorry.

[00:32:34] Speaker 07:
Go ahead, Judge.

[00:32:36] Speaker 07:
I just want to make sure I'm understanding where you are, given how you started out.

[00:32:43] Speaker 07:
If I understand you correctly, if we were to hold that the best reading of the statute is the one that you were opposing,

[00:32:53] Speaker 07:
Is that the end of it?

[00:32:55] Speaker 07:
Let's assume we're correct.

[00:32:56] Speaker 07:
Let's assume that somehow everyone turns out, everyone agrees, best reading of the statute is the one that you're opposing.

[00:33:04] Speaker 07:
Are there any other issues that you're raising?

[00:33:06] Speaker 07:
Is that it?

[00:33:06] Speaker 07:
That's the end of it?

[00:33:07] Speaker 03:
No.

[00:33:08] Speaker 03:
There are other secondary issues on arbitrary and capricious application.

[00:33:12] Speaker 07:
No, forget the arbitrary and capricious application stuff.

[00:33:14] Speaker 07:
All right.

[00:33:16] Speaker 07:
I'm not saying that's, I understand that.

[00:33:18] Speaker 07:
I'm saying is there anything else

[00:33:22] Speaker 07:
that I should wonder about.

[00:33:23] Speaker 07:
If I were to decide in my mind, the best reading of the statute is the one that you oppose, is there anything that would cause me to rethink that?

[00:33:32] Speaker 07:
Any other issue on the table that would cause me to rethink that?

[00:33:35] Speaker 03:
Given the assumption that you've made, no, I don't believe there is.

[00:33:39] Speaker 03:
Other than, like I said, some of the arbitrary pieces.

[00:33:42] Speaker 07:
All right.

[00:33:43] Speaker 07:
I just want to make sure I had that straight.

[00:33:44] Speaker 07:
Thank you.

[00:33:45] Speaker 03:
If you independently interpret the statute and say, I'm reading this and this is what I think the statute says,

[00:33:51] Speaker 07:
That's it.

[00:33:52] Speaker 07:
That's it for me unless the Supreme Court would say wrong, right?

[00:33:56] Speaker 07:
Correct.

[00:33:56] Speaker 07:
Okay.

[00:33:57] Speaker 03:
Thank you.

[00:33:58] Speaker 03:
Then Chevron ceases to be a question.

[00:33:59] Speaker 03:
Exactly.

[00:34:00] Speaker 07:
I just want to make sure I heard you correctly.

[00:34:03] Speaker 07:
Okay.

[00:34:04] Speaker 03:
Yes.

[00:34:05] Speaker 03:
I just have to take it up.

[00:34:06] Speaker 05:
So in your briefing, you emphasized the 1960 definition of function

[00:34:15] Speaker 05:
with respect to this whole issue of single function of the trigger rather than the 1934 definition of the term.

[00:34:24] Speaker 05:
Why is the 1968 definition, why does that take precedence over the 1934 common understanding of the term?

[00:34:35] Speaker 03:
I think it's a more recent expression of, I mean, they significantly modified it.

[00:34:40] Speaker 03:
They significantly added to the Congress.

[00:34:42] Speaker 03:
Congress significantly modified the statute, significantly added to it.

[00:34:46] Speaker 03:
And so their understanding at that time, I think, would carry more weight, particularly given that it then later became a crime.

[00:34:53] Speaker 03:
So if you're wondering what they thought of when they made it a crime,

[00:34:57] Speaker 03:
I would look to their contemporaneous or close in time contemporaneous understanding, not their ancient understanding.

[00:35:05] Speaker 03:
And like I said, I think the fact that semi-automatic weapons were a growing category of weapons that weren't thought of in the same way back in 34 is a good reason to take the more current understanding of where the line would be, for example, both between automatic and semi-automatic, as well as even the part that didn't change, single function of the trigger.

[00:35:28] Speaker 03:
But I think even as you go back to the 30s, my version of what is an automatic weapon, if you look at the definitions that we cite, they include things like you hold it and it keeps firing until you release it.

[00:35:41] Speaker 03:
And everyone agrees that a bump stock, the trigger is released before each subsequent bump.

[00:35:49] Speaker 03:
So even under the contemporaneous definitions of an automatic weapon in the dictionary back at the time, I think agree with me rather than with the government.

[00:35:57] Speaker 05:
I'm trying to understand your rule of lenity argument because my understanding of the rule of lenity is that you don't employ it until you've exhausted all other tools of statutory construction.

[00:36:19] Speaker 05:
Do you agree with that?

[00:36:21] Speaker 05:
Traditional tools, yes.

[00:36:23] Speaker 05:
So if if let's suppose.

[00:36:27] Speaker 05:
So if that's the case and Chevron.

[00:36:39] Speaker 05:
You're saying that that that Chevron is not a traditional tool of statutory construction, and that's why the rule of lenity can trump Chevron.

[00:36:50] Speaker 03:
That's exactly right.

[00:36:51] Speaker 03:
Chevron is a delegation of legislative authority.

[00:36:53] Speaker 03:
I think that's precisely what this court's earlier.

[00:36:56] Speaker 03:
What court has held that?

[00:36:58] Speaker 03:
I think that's Chevron itself.

[00:37:00] Speaker 03:
It says we read ambiguity as an implied delegation.

[00:37:04] Speaker 05:
What court has held that the rule of lenity should take precedence over Chevron because Chevron is not a traditional tool of statutory construction?

[00:37:17] Speaker 03:
I believe in terms of full court decisions, I mean, the various judges have said as much, but in terms of full court decision, you have Al-Khazag, which is the Navy Marine case, which in fact held that, you have Judge Batchelor, although obviously that got vacated and then evenly divided en banc, but in terms of a court having held that, I'm not saying it's still binding, obviously, but there have been ample numbers of judges

[00:37:41] Speaker 03:
who have taken exactly that position, Judge Sutton.

[00:37:44] Speaker 05:
You've given me the name of one case where you say it was a holding.

[00:37:49] Speaker 05:
Or there any?

[00:37:50] Speaker 03:
I believe Al-Khazak.

[00:37:52] Speaker 03:
Yeah, Al-Khazak, which is the US Navy Marines Court of Criminal Appeals.

[00:37:59] Speaker 03:
Now, it's an intermediate appellate court.

[00:38:02] Speaker 03:
I'm not over claiming what it is.

[00:38:05] Speaker 03:
But it is what it is.

[00:38:06] Speaker 03:
But at the end of the day, just the logic of lenity

[00:38:10] Speaker 03:
I think necessarily drives this question.

[00:38:13] Speaker 07:
And the logic of Chevron, if you look at all the delegations… You know, you started off with a premise and moved off it pretty fast that Chevron says ambiguity equals delegated authority.

[00:38:24] Speaker 07:
That is wrong.

[00:38:25] Speaker 07:
That is absolutely wrong.

[00:38:27] Speaker 07:
And we have finally, after a lot of agencies tried to run with that notion,

[00:38:33] Speaker 07:
You'll find a slew of cases in that circuit say, it's totally wrong.

[00:38:37] Speaker 07:
Look at Justice Breyer's response to Justice Scalia in the city of Arlington saying, oh, don't, your language is a little loose.

[00:38:46] Speaker 07:
Merely because there's ambiguity does not mean there's delegated authority.

[00:38:50] Speaker 07:
And read Chevron carefully, counselor.

[00:38:53] Speaker 07:
Delegated authority is a separate requirement.

[00:38:56] Speaker 07:
Ambiguity may inform it.

[00:38:59] Speaker 07:
But it is not the answer mere ambiguity is not delegated authority and you all have done a real disservice to us and not just you, but anyone who's propounded that that notion is absolutely incorrect.

[00:39:13] Speaker 03:
Well, I'm sorry if I misspoke.

[00:39:16] Speaker 03:
It's a position that I criticize, not that I endorse.

[00:39:20] Speaker 03:
It is I'm trying to give the other side of it the full breadth of what I think the broadest view of Chevron is.

[00:39:26] Speaker 03:
I do not endorse that position.

[00:39:28] Speaker 03:
I don't think you can delegate authority through ambiguity.

[00:39:30] Speaker 03:
I think that's wrong.

[00:39:32] Speaker 03:
And I think that's a delegation problem.

[00:39:34] Speaker 03:
It's why I think the rule of lenity applies.

[00:39:36] Speaker 03:
So I'm sorry if I gave a different impression on that.

[00:39:39] Speaker 03:
I fully agree that it's not enough.

[00:39:41] Speaker 02:
Can I ask a question about the rule of Lenity?

[00:39:42] Speaker 02:
So the interrelationship between the rule of Lenity and Chevron, in order to perceive of it in the way that you are, we would have to disagree with the footnote in Babel.

[00:39:52] Speaker 02:
Now, I take your point that it's a footnote and you've got some arguments that we should

[00:39:57] Speaker 02:
pretend as if that acts as if the footnote isn't governing.

[00:40:01] Speaker 02:
At least, I think you'd have to say that.

[00:40:04] Speaker 02:
But otherwise, it can't be squared, right?

[00:40:06] Speaker 02:
I mean, that is the issue that the court addressed.

[00:40:09] Speaker 02:
The court did address that issue, that exact issue in Babbitt, albeit in a footnote, some could say.

[00:40:15] Speaker 03:
And arguably, unnecessarily.

[00:40:17] Speaker 03:
But yes, there's no question that the footnote in Babbitt says what it says.

[00:40:21] Speaker 03:
And if you think that is controlling law on this court, then I have only one alternative.

[00:40:26] Speaker 03:
And it's obviously not the panel.

[00:40:27] Speaker 02:
On the on the issue of Leonard in particular I just want to make sure I understand, but on the issue of Chevron right Chevron versus one in a relationship with Leonard Okay, right.

[00:40:36] Speaker 03:
Um, and look that sort of

[00:40:39] Speaker 03:
I don't make any bones about the hurdles I have to overcome in my case.

[00:40:44] Speaker 03:
I recognize that.

[00:40:45] Speaker 03:
And at some point, that hurdle, that hurdle.

[00:40:47] Speaker 02:
No, I understand that.

[00:40:48] Speaker 02:
I just want to make sure that I understand and I'm familiar with the notion that the council plays the hand that they're dealt.

[00:40:55] Speaker 02:
I know that.

[00:40:56] Speaker 02:
And I just want to make sure I understand where you feel this lies in the architecture of the argument and what freedom

[00:41:02] Speaker 02:
your view is that we have on behalf of your client.

[00:41:05] Speaker 02:
And that's helpful for me to know.

[00:41:07] Speaker 03:
Yes.

[00:41:07] Speaker 03:
And my view would be I would treat it as an unnecessary reaching of an issue that they didn't have to reach.

[00:41:12] Speaker 03:
And so it's not controlling on this court.

[00:41:16] Speaker 03:
I understand that that is open to debate and subject to another view.

[00:41:22] Speaker 05:
So let's suppose I agree that Chevron is not the

[00:41:30] Speaker 05:
operative kind of construct to decide this case.

[00:41:38] Speaker 05:
So at what some people call Chevron step zero, I agree and I accept the government's position that Chevron shouldn't apply.

[00:41:50] Speaker 05:
Not withstanding that,

[00:41:57] Speaker 05:
need says that we try to reach the best interpretation of the statute.

[00:42:09] Speaker 05:
And to the extent that there's an agency regulation that speaks to that, we can defer to it as for whatever persuasive value it has, so-called Skidmore deference.

[00:42:27] Speaker 05:
Wouldn't that be the construct that we would use then to decide this case if we were to agree with you that Chevron doesn't apply?

[00:42:38] Speaker 03:
I've always had a little problem with Skidmore deference because it says if they're persuasive, then yeah, you should listen to them.

[00:42:45] Speaker 03:
And I agree if they persuade you on the merits of their interpretation, then I'm going to lose.

[00:42:51] Speaker 03:
But I don't know that Skidmore

[00:42:53] Speaker 03:
using the word deference in the context of Skidmore adds any weight or value to the government's persuasiveness.

[00:42:59] Speaker 03:
It's not more persuasive simply because they did it in a regulation.

[00:43:03] Speaker 03:
It's persuasive on its own, either it is or it isn't.

[00:43:06] Speaker 05:
I'd like for you to just answer my question as a jurisprudential matter.

[00:43:13] Speaker 05:
If I agree with your argument that Chevron doesn't apply, then I should

[00:43:19] Speaker 05:
follow the construction exercise as undertaken in me?

[00:43:26] Speaker 05:
Yes or no?

[00:43:27] Speaker 03:
Yes, though, my only qualification to that is I think it's sort of an empty set, basically.

[00:43:33] Speaker 03:
It's no different than if the government makes a good argument in the brief, they make a good argument in the brief.

[00:43:38] Speaker 03:
They make a good argument in regulation, that's a good argument.

[00:43:40] Speaker 03:
But if it's a bad argument, it's a bad argument regardless of where it shows up.

[00:43:44] Speaker 03:
And so, yes, you should apply me.

[00:43:46] Speaker 03:
I just think it's an empty set.

[00:43:51] Speaker 02:
Let me ask my colleagues if they have any additional questions for you.

[00:43:53] Speaker 02:
We'll give you a little time for rebuttal.

[00:43:57] Speaker 02:
Thank you.

[00:43:58] Speaker 02:
Thank you.

[00:43:59] Speaker 02:
We'll hear from the government now.

[00:44:00] Speaker 02:
Mr. Stern.

[00:44:02] Speaker 06:
Thank you, Your Honor.

[00:44:06] Speaker 06:
The initial question presented here, which we talked about before,

[00:44:19] Speaker 06:
prior decision is the law of the case.

[00:44:23] Speaker 06:
We also think, as the court knows, we agree with almost everything in that decision in terms of its analysis of the application of the statute, except that instead of saying that it was a reasonable position, we think that it would have been better if the court had said that it's the best reading of the statute

[00:44:52] Speaker 06:
had that decision to do over again, that's the change that we would make.

[00:44:58] Speaker 06:
But we also do, you know, and obviously this is within the court's discretion to what extent it wants to look at, you know, any of the questions presented in that case.

[00:45:10] Speaker 06:
We do think that as it certainly falls within the discretion

[00:45:19] Speaker 06:
presented in Shirley.

[00:45:21] Speaker 07:
You're not suggesting that we're bound to apply that analysis.

[00:45:27] Speaker 07:
Right.

[00:45:28] Speaker 07:
And you're not suggesting we're bound to apply Chevron.

[00:45:32] Speaker 07:
We can, on this time around, we can simply say we've looked at it again and we think it's the best reading of the statute and a discussion.

[00:45:40] Speaker 07:
That's correct, Your Honor.

[00:45:41] Speaker 07:
There's nothing in the law that forecloses that

[00:45:50] Speaker 06:
As this court has said, it's a prudential rule.

[00:45:53] Speaker 06:
It's not binding on the court.

[00:45:55] Speaker 01:
And it's discretionary.

[00:45:56] Speaker 06:
And it's discretionary.

[00:45:57] Speaker 06:
I mean, we have not urged that the court is binding.

[00:46:00] Speaker 07:
No, no, I'm just listening to each of you.

[00:46:02] Speaker 07:
I'm just trying to make sure I understand what you're saying.

[00:46:04] Speaker 07:
That's all.

[00:46:05] Speaker 07:
I'm not fighting with either one of you about it.

[00:46:08] Speaker 02:
So on, just to take up Judge Edwards' invitation to look at the statutory interpretation issue first and put aside Chevron for the moment because I think everybody agrees that if we conclude that it's the best, your reading is the best reading of the statute, then there's no need to get into Chevron.

[00:46:23] Speaker 02:
If we conclude that your reading is not the best reading of the statute, then there's a question about whether we should get into Chevron, because your reading might still be resuscitated, whether you want us to do that or not.

[00:46:32] Speaker 02:
But let's talk about the statutory interpretation issue first, if I can just ask you a question.

[00:46:38] Speaker 02:
So I'll ask the same hypothetical that I asked to Mr. Jaffe.

[00:46:42] Speaker 02:
It's a weapon that can be switched into automatic mode, and it requires then a pull of the conventional trigger, what everybody would

[00:46:52] Speaker 02:
envisioned to be the trigger if you just looked at it.

[00:46:55] Speaker 02:
And we know that that's the trigger because in semi-automatic mode, that's the part of the gun that needs to be activated in order to fire a single round.

[00:47:03] Speaker 02:
But in automatic mode, one pull of the trigger starts a sequence where the trigger then keeps pulling and multiple rounds are dispersed.

[00:47:14] Speaker 02:
Now, I'm pretty sure that you would think that that's a fully automatic weapon, that that's a machine gun.

[00:47:22] Speaker 02:
And my question is this, the statute says it's a weapon which shoots automatically more than one shot by a single function of the trigger.

[00:47:31] Speaker 02:
And I've left out some language that I don't think is necessary to keep in for these purposes.

[00:47:37] Speaker 02:
And isn't it the case that in that hypothetical, if I think of the initial function of the trigger, not as a human pulling the trigger, but just as the mechanical act of the trigger being pulled,

[00:47:48] Speaker 02:
that every subsequent round is also being dispersed by the same function of the trigger.

[00:47:56] Speaker 02:
In other words, they are, it seems to me that where we are is the plaintiffs would say, well, that's multiple functions of the trigger.

[00:48:04] Speaker 02:
Every time a round is fired, it's the same function of the trigger that started it, ergo multiple functions of the trigger, ergo not single function of the trigger.

[00:48:13] Speaker 02:
And then it seems to me what you're saying is,

[00:48:15] Speaker 02:
I don't care if the other bullets are being disseminated by the same function of the trigger, as long as one function of the trigger starts the sequence.

[00:48:28] Speaker 06:
I think that pretty much encapsulates it.

[00:48:33] Speaker 06:
I mean, our point is simply that when you go back to the consistent, I would say, with the original 30

[00:48:44] Speaker 06:
both the House report, also the testimony of the president of the National Rifle Association, who both described, sort of basically used function and pull interchangeably.

[00:48:59] Speaker 06:
And what the purpose of the machine gun is, is not to sort of think, it's not that it's interesting in whether the trigger, exactly what mechanism it is that keeps going,

[00:49:19] Speaker 06:
hole to start it off?

[00:49:21] Speaker 06:
And then does it fire automatically?

[00:49:24] Speaker 02:
Can I just stop you right there for a second?

[00:49:26] Speaker 02:
Because one thing I'm not completely following is there's one way to read the statute, which it sounds like you're saying now.

[00:49:36] Speaker 02:
I wasn't quite sure I understood your brief to be arguing this, but let me just make sure I understand it.

[00:49:40] Speaker 02:
that the single function of the trigger, the relevant single function of the trigger, because that's the words of the statute.

[00:49:45] Speaker 02:
So we have to identify what is the single function of the trigger.

[00:49:49] Speaker 02:
You're describing it in terms of a human action of pulling the trigger.

[00:49:53] Speaker 02:
I guess where I was trying to go is, even if it's not the human action of pulling the trigger, it's just that the trigger gets pulled.

[00:50:02] Speaker 02:
It's just mechanical.

[00:50:03] Speaker 02:
trigger gets pulled.

[00:50:05] Speaker 02:
I'm not worried about the fact that a human being is doing it.

[00:50:07] Speaker 02:
I'm just saying the trigger gets pulled.

[00:50:10] Speaker 02:
That's the single function of the trigger that occasions the sequence of events that you think makes the weapon a machine gun.

[00:50:18] Speaker 02:
It doesn't require me to think that single function of the trigger means human pulls the trigger.

[00:50:25] Speaker 02:
It just means

[00:50:27] Speaker 02:
trigger functions and then automatically multiple bullets are fired.

[00:50:34] Speaker 06:
It's a single function that sets the automatic sequence in motion.

[00:50:39] Speaker 02:
And then on that understanding, I think one response is every subsequent fire is the same function of the trigger.

[00:50:49] Speaker 07:
Yes, I thought your argument essentially is

[00:50:55] Speaker 07:
that every subsequent movement of the trigger is merely a result of the gun being in automatic mode.

[00:51:06] Speaker 07:
It doesn't have any functionality.

[00:51:07] Speaker 07:
It's merely a result.

[00:51:09] Speaker 07:
You could have any of a number of results.

[00:51:13] Speaker 07:
It's in automatic mode.

[00:51:15] Speaker 07:
The movement of that trigger, once it is started, once it's invoked and acting automatically, the movement of that trigger has no functionality.

[00:51:25] Speaker 07:
is merely a result of it being in automatic mode.

[00:51:29] Speaker 07:
I thought that was your argument.

[00:51:31] Speaker 06:
It is, and I may, in this taxonomy, I'm hoping that that's consistent with my answer to Judge Winn-Lawson, because you're right, Judge Edwards, that is our point, is that what the statute is concerned with is the original function that then sets in motion

[00:51:54] Speaker 06:
an automatic sequence.

[00:51:56] Speaker 06:
And if I've said anything.

[00:51:57] Speaker 02:
And I'm not necessarily saying I disagree with that.

[00:52:01] Speaker 02:
I'm just trying to understand exactly how.

[00:52:03] Speaker 07:
I'm just trying to understand it, too.

[00:52:04] Speaker 07:
I mean, you could start it by saying boo.

[00:52:08] Speaker 07:
And the gun will probably come to that.

[00:52:10] Speaker 07:
You say boo and it goes automatic, including the movement of the trigger.

[00:52:15] Speaker 07:
The trigger would simply be a consequence of your putting the gun in automatic mode.

[00:52:20] Speaker 07:
It doesn't have any other functionality, right?

[00:52:22] Speaker 07:
That's right.

[00:52:24] Speaker 07:
That's what I thought your position was, because otherwise you're leaving it open to manufacturers to play all kinds of games and there's no question this gun is going automatically and the movement, I never got it as I was reading this stuff, the movement of the trigger is merely the result of the gun acting automatically.

[00:52:46] Speaker 07:
But I wanted to make sure that was your argument.

[00:52:50] Speaker 07:
As I was listening to you respond to my colleague, I wasn't sure what I was hearing.

[00:52:55] Speaker 07:
That's the way I have understood it.

[00:52:57] Speaker 07:
But I want to make sure what my thinking is, is what you're saying or whether this I'm missing something.

[00:53:05] Speaker 06:
I don't think you're missing anything.

[00:53:07] Speaker 07:
I mean, I understand the other side sees it differently.

[00:53:09] Speaker 07:
And so be it.

[00:53:10] Speaker 07:
That's what the case is about.

[00:53:11] Speaker 06:
I mean, I think Mr. Daffy put the other side's position very clearly, which is what you're looking at is

[00:53:20] Speaker 06:
Like, does the trigger keep moving back and forth?

[00:53:23] Speaker 06:
Right.

[00:53:25] Speaker 07:
Which to me, yeah, so that's a result of it being automatic.

[00:53:28] Speaker 07:
So what, it's moving back and forth.

[00:53:29] Speaker 07:
All kinds of things can happen.

[00:53:31] Speaker 07:
That has nothing to do with it now being an automatic mode.

[00:53:36] Speaker 07:
That's correct.

[00:53:38] Speaker 07:
I mean, that's our position.

[00:53:39] Speaker 07:
Okay, I'm just trying to understand.

[00:53:41] Speaker 02:
One potential complication is if you have a weapon that's triggered by a voice or by a switch,

[00:53:50] Speaker 02:
then you could redefine that to be the trigger.

[00:53:55] Speaker 02:
But when you have a weapon where you actually have to pull, and I'm not necessarily saying I disagree with where you are at the end of the day or that I agree.

[00:54:02] Speaker 02:
I'm just trying to understand exactly how this functions in a situation in which there's not a separate, we'll call it a trigger, that occasions the multiple rounds of firing.

[00:54:14] Speaker 02:
It's the same.

[00:54:16] Speaker 02:
it's the same part of the firearm that has to be pulled.

[00:54:22] Speaker 02:
That's the single function of the trigger.

[00:54:23] Speaker 02:
And by the trigger, the statute speaks in terms of trigger and the singular, which I read to me and we have to identify what the relevant trigger is.

[00:54:32] Speaker 02:
And once that trigger is pulled, multiple rounds can then be occasioned, but it's the same movement of the trigger that occasions each multiple, each subsequent round.

[00:54:45] Speaker 06:
Right.

[00:54:46] Speaker 06:
So that, and there have been many ingenious attempts with the Fifth Circuit's old decision and camp built with the fishing reel.

[00:54:56] Speaker 06:
And, you know, we think that the Fifth Circuit was correct when it says, no, that's, you know, the fact.

[00:55:01] Speaker 07:
Do you agree that it's each subsequent movement, occasions?

[00:55:06] Speaker 07:
No.

[00:55:07] Speaker 07:
I hear what the chief judge said.

[00:55:08] Speaker 07:
He said occasions.

[00:55:10] Speaker 07:
subsequent shots.

[00:55:11] Speaker 07:
That's not consistent with what you and I, it's merely a result of.

[00:55:16] Speaker 07:
They're very different.

[00:55:18] Speaker 07:
The subsequent movements of the trigger are just, it is what we see once the gun is on automatic mode.

[00:55:27] Speaker 07:
It doesn't occasion the automatic mode unless I'm misunderstanding your position.

[00:55:33] Speaker 07:
It's merely a result of it.

[00:55:34] Speaker 06:
I apologize.

[00:55:36] Speaker 06:
I didn't actually understand Judge Brunnvassum.

[00:55:40] Speaker 07:
That's the word he used.

[00:55:41] Speaker 07:
You have to listen to him very carefully.

[00:55:43] Speaker 07:
He's very shrewd in how he presents things.

[00:55:47] Speaker 07:
This is not a stupid man.

[00:55:48] Speaker 07:
You need to listen very carefully to what he's saying.

[00:55:55] Speaker 06:
Judge, am I missing something?

[00:56:02] Speaker 02:
I honestly not trying to be a clever elliptical at all.

[00:56:05] Speaker 02:
I guess all I'm saying is this, that for each subsequent round to be fired, the trigger needs to be pulled because otherwise the hammer's not released.

[00:56:13] Speaker 02:
So in other words, that trigger has to move in the same way for another round to be fired.

[00:56:18] Speaker 02:
Now, I think I agree with what you and Judge Edwards are saying.

[00:56:20] Speaker 02:
It's my hypothetical and I embrace the way you're saying it, which is that

[00:56:24] Speaker 02:
something initially happens that allows that to happen automatically.

[00:56:29] Speaker 02:
And I don't think the plaintiffs would disagree with that.

[00:56:32] Speaker 02:
They disagree with the way I'm framing the hypothetical.

[00:56:34] Speaker 02:
So the trigger automatically gets pulled over and over and over after the initial switch and the initial pull of the trigger.

[00:56:42] Speaker 02:
It's just that each subsequent round does require the trigger to move because otherwise the hammer is not going to be released.

[00:56:50] Speaker 07:
But that's like saying each subsequent round requires a bullet to leave the gun.

[00:56:56] Speaker 07:
So what?

[00:56:57] Speaker 07:
I mean, I'm just trying to understand.

[00:56:59] Speaker 07:
Yeah, that's the consequence of it being an automatic mode.

[00:57:04] Speaker 07:
If the bullets don't leave the gun, it's not an automatic mode.

[00:57:06] Speaker 07:
Something's wrong, right?

[00:57:09] Speaker 07:
So you have this thing down there that's going back and forth, back and forth.

[00:57:12] Speaker 07:
That's not what is causing it to be an automatic mode.

[00:57:16] Speaker 07:
You don't need that.

[00:57:17] Speaker 07:
It's just the result of it being an automatic mode.

[00:57:23] Speaker 07:
Is that?

[00:57:23] Speaker 07:
Is that what you're saying or not?

[00:57:25] Speaker 06:
I mean, yes, I mean, the only difference, as I understand, like Mr. Jaffe's, you know, claim his position is the whole difference is between the probe is what he would agree as a machine gun is I press the trigger in to keep it in the automatic mode in the bump stock, I press forward to keep it in the automatic mode, and the trigger moves.

[00:57:54] Speaker 06:
That's the difference.

[00:57:56] Speaker 06:
And I think we all agree that's the difference.

[00:57:59] Speaker 06:
And for us, that should not be determinative of anything.

[00:58:05] Speaker 02:
So I guess my question is this then.

[00:58:07] Speaker 02:
I think we all agree descriptively what's happening.

[00:58:10] Speaker 02:
When a subsequent round is fired, that just happens.

[00:58:12] Speaker 02:
A subsequent round has to be fired.

[00:58:14] Speaker 02:
Otherwise, we're not even talking about multiple rounds being fired.

[00:58:18] Speaker 02:
A subsequent round is fired.

[00:58:19] Speaker 02:
Is that fired because of another function of the trigger?

[00:58:25] Speaker 02:
No, because I thought one, you could have two responses.

[00:58:28] Speaker 02:
One would be no, the other would be yes, but it doesn't matter.

[00:58:32] Speaker 02:
And I was one, I was thinking it would be the latter, not the former because- And I thought it would be what you said.

[00:58:38] Speaker 02:
That's what I'm trying to isolate because is it not the subsequent round, this trigger doesn't function at all in your view.

[00:58:46] Speaker 02:
I just want to make sure I understand.

[00:58:47] Speaker 02:
I'm not saying it's right or wrong.

[00:58:47] Speaker 02:
I just want to make sure I understand your argument.

[00:58:49] Speaker 06:
No, I mean, our view is that the, is it goes back and

[00:58:54] Speaker 06:
about what they were getting at us was sort of a common sense idea.

[00:58:57] Speaker 06:
If you give it a poll or a function, does that then set in motion the automatic sequence?

[00:59:04] Speaker 06:
So it's that first thing that you do that is the function.

[00:59:09] Speaker 06:
And if you think of the word poll being put in their function, I understand that your staff would say, well, they've written that.

[00:59:16] Speaker 05:
I'm really confused at this point because

[00:59:24] Speaker 05:
If the semi-automatic weapon fires, you have to pull or actuate the trigger.

[00:59:36] Speaker 05:
And if you fire that weapon and you hold the trigger in and don't release it, it's not going to fire again.

[00:59:48] Speaker 05:
Can we agree on that?

[00:59:50] Speaker ?:
Yes.

[00:59:51] Speaker 05:
So the only way that it can fire again is for that trigger to be released so that the firing pin or the hammer, however you want to think of it, can reset so that you can pull the trigger a second time, right?

[01:00:18] Speaker 05:
And that's why

[01:00:20] Speaker 05:
The ATF took the position in the 1955 ruling that a Gatling gun was not a machine gun, correct?

[01:00:32] Speaker 06:
Well, I admit I didn't read the 55 rule.

[01:00:37] Speaker 06:
In preparation, my recollection of the 55 rule is that the agency said that they're apparently there.

[01:00:49] Speaker 06:
range of different Gatling guns.

[01:00:51] Speaker 06:
And I believe that they said some were, some weren't.

[01:00:54] Speaker 06:
And then after the Seventh Circuit's decision in Fleishley about the minigun, the agency sort of modified its rule to some extent.

[01:01:05] Speaker 06:
So I'm, you know, I apologize, I just, I don't want to sort of speak to something that I

[01:01:13] Speaker 05:
Well, I'm confused about that because that is a key portion of appellants brief.

[01:01:20] Speaker 05:
So I don't understand why you're not prepared to discuss that.

[01:01:24] Speaker 05:
But what the 55 ruling said is that with respect to certain gatling guns, they would not be construed as machine guns, even if

[01:01:41] Speaker 05:
they could be construed as operating automatically because they weren't being fired as a result of a single function of the trigger.

[01:01:55] Speaker 05:
It was essentially the trigger moving and operating repeatedly, very quickly through the use of a hand crank or some other mechanical device.

[01:02:07] Speaker 05:
In the current rule, one of the commenters said that expressed the concern that a number of commercially available items such as Gatling guns, et cetera, could be construed as machine guns under the rule.

[01:02:33] Speaker 05:
And the response of the department was,

[01:02:37] Speaker 05:
Well, we disagree that other firearms or devices, and they don't mention Gatling guns specifically, but it's clear kind of response to this comment will be reclassified as machine guns under this rule because, because

[01:03:00] Speaker 05:
In those situations, the shooter must release the trigger before another round is fired.

[01:03:08] Speaker 05:
And so that's not going to be considered a machine gun.

[01:03:14] Speaker 05:
And so I'm trying to understand the department's position today as to gatling guns under this rule.

[01:03:27] Speaker 05:
Are they machine guns or not?

[01:03:31] Speaker 06:
I don't want to say anything that the agency hasn't officially said, but the distinction that Your Honor just drew citing the agency between having to keep continually manually reset the trigger or to do action that keeps the trigger moving as opposed to the trigger being set in motion by like engaging in an automatic sequence, that's the critical dividing line.

[01:04:00] Speaker 06:
and among gatling guns, that would be, I think, the distinguishing principle, because that is the principle that's being articulated here.

[01:04:10] Speaker 05:
Suppose I invent basically a mechanical hand

[01:04:19] Speaker 05:
with a trigger finger that you can attach to a gun.

[01:04:26] Speaker 05:
And it's got a motor inside it.

[01:04:30] Speaker 05:
And you push a button on that motor and the finger can operate back and forth really rapidly.

[01:04:42] Speaker 05:
And continuously.

[01:04:46] Speaker 05:
And so that I can hold

[01:04:50] Speaker 05:
the rifle and attach my invention to it and push the button.

[01:04:56] Speaker 05:
And what happens is that the finger just goes back and forth and back and forth and back and forth very quickly until the rifle runs out of ammunition.

[01:05:08] Speaker 05:
Is that a machine gun?

[01:05:20] Speaker 05:
And so why isn't there, why isn't it operating by more than a single function of the trigger?

[01:05:32] Speaker 06:
It goes back, I think, Your Honor, to the distinction between the sort of the, was there one pole or function that set in motion

[01:05:49] Speaker 06:
do one thing and then whether or not the trigger moves or there's some other internal mechanism that that's not what the like definition or the rule.

[01:06:02] Speaker 02:
And that and that hypothetical.

[01:06:06] Speaker 02:
If I can just follow up on Judge Wilkins really just make sure I understand.

[01:06:09] Speaker 06:
I just realized that I was on.

[01:06:16] Speaker 02:
I think we heard that.

[01:06:17] Speaker 02:
No, we heard it.

[01:06:19] Speaker 02:
Yeah, you were muting on and off, but I think you unmuted in time to give the answer.

[01:06:23] Speaker 02:
I just want to follow up on Judge Wilkins' hypothetical, which sounds like it may be similar to the auto glove.

[01:06:28] Speaker 02:
It's not that it's a machine gun because there's some other thing that's the trigger, because that's one way to do a lot of these is you redefine the weapon so that some other thing, say a human voice or a switch becomes the trigger.

[01:06:42] Speaker 02:
As I understood the hypothetical, it's the same trigger.

[01:06:46] Speaker 02:
And that trigger has to be, it's just that the device allows that trigger to be mechanically pulled repetitively really, really, really quickly.

[01:06:56] Speaker 06:
Yes.

[01:06:57] Speaker 06:
And again, I think that's like, you know, very similar to the less sophisticated version of Lick and Camp in the Fifth Circuit case.

[01:07:06] Speaker 02:
So the thing about camp is I didn't understand camp to be a situation in which the trigger actually keeps moving.

[01:07:13] Speaker 02:
I thought there was something internal with the fishing reel that I could be wrong about.

[01:07:16] Speaker 02:
I didn't know the precise mechanics of it.

[01:07:19] Speaker 06:
I believe that the trigger kept moving.

[01:07:22] Speaker 02:
I see, okay.

[01:07:23] Speaker 02:
Then it gets closer, okay.

[01:07:25] Speaker 05:
So just to go back to my hypothetical.

[01:07:30] Speaker 05:
So if my invention were that the mechanical hand

[01:07:36] Speaker 05:
Basically, all it did was if you push the button, it fired once, and you had to push the button a second time for it to fire again and so forth.

[01:07:49] Speaker 05:
It was just basically kind of an invention for someone who maybe kind of has carpal tunnel or something.

[01:07:57] Speaker 05:
They have trouble having enough force to pull the trigger, so this does it for them.

[01:08:04] Speaker 05:
You would say that that's not a machine gun or that is a machine gun.

[01:08:09] Speaker 05:
Right.

[01:08:10] Speaker 05:
That would not be a machine gun.

[01:08:12] Speaker 05:
So it's not a machine gun then, but if I modify the invention so that if I push the button, it keeps firing until you push it again to stop it or the gun runs out of ammunition,

[01:08:32] Speaker 05:
then it becomes a machine gun.

[01:08:35] Speaker 06:
Yes, that's almost exactly the definition that's in the rule.

[01:08:41] Speaker 05:
So why is it operating under a single function of the trigger when it just

[01:09:00] Speaker 05:
repeatedly pulls the trigger versus when you just have to push it each time to pull the trigger.

[01:09:11] Speaker 05:
I mean, the gun is still operating the same way.

[01:09:14] Speaker 05:
It still fires the same way.

[01:09:16] Speaker 05:
Right.

[01:09:17] Speaker 06:
I mean, the gun is always

[01:09:18] Speaker 06:
at some level going to keep firing in the same way.

[01:09:21] Speaker 06:
And the difference, the only difference that's really being discussed in the sort of between the prototypical and these anons are that the actual trigger keeps moving once it's set in motion and that that's not the internal mechanism that keeps the gun firing in the prototypical machine gun.

[01:09:47] Speaker 02:
I thought, I thought, I thought, and maybe even the rule got into this a little bit.

[01:09:51] Speaker 02:
I thought in the hypothetical the judge Wilkins gave.

[01:09:53] Speaker 02:
If it's a button that then causes the tree that then causes what we conventionally refer to as the trigger to move repeatedly.

[01:10:03] Speaker 02:
then one way to think about it is, well, then the button then becomes the trigger for purposes of the statute.

[01:10:08] Speaker 02:
And yes, there's another device that keeps moving back and forth, but if you redefine the button as the trigger, well, then you win because that's the trigger and it's a single function of that trigger that then occasions multiple rounds of fire.

[01:10:22] Speaker 06:
Yes.

[01:10:22] Speaker 06:
I think that that's a clearer sort of way of thinking about it.

[01:10:30] Speaker 06:
And the point again, I don't know, I keep sort of

[01:10:33] Speaker 06:
saying the same thing, but the point again is that what you're looking at is the one function that starts the firing sequence.

[01:10:42] Speaker 02:
And I think what makes it more complicated for this, I don't mean to assume an appendage to Judge Wilkins's well laid out hypo, but just for my purposes, what complicates it a little bit is with a bump stock, you don't have the separate button

[01:11:00] Speaker 02:
that can be reconceptualized as the trigger.

[01:11:04] Speaker 02:
The conventional trigger is the trigger.

[01:11:07] Speaker 02:
And so what you need to do to win, and it might be right, but I'm just saying the single function of the trigger is the first function of the trigger.

[01:11:15] Speaker 02:
And then every other round also admitted because of the same movement of the trigger.

[01:11:20] Speaker 02:
It's just what you'd say under the statute is

[01:11:23] Speaker 02:
any weapon which shoots automatically more than one shot by a single function of the trigger, it did happen by a single function of the trigger, even if there's other movements of the trigger that result in additional rounds being fired.

[01:11:37] Speaker 06:
I mean, in some ways, I actually think the bump stock is an easier case.

[01:11:41] Speaker 06:
It doesn't involve anything else.

[01:11:44] Speaker 06:
The point is, and it just goes back to the earlier colloquy with yourself and Judge Edwards,

[01:11:53] Speaker 06:
means to set this in motion.

[01:11:57] Speaker 06:
And so, you know, we think that this is the, you know, relatively to the extent anything is what can be thought of as straightforward in this area, we think it's relatively straightforward.

[01:12:10] Speaker 05:
Suppose for the sake of argument, we believe that that's a reasonable interpretation of the statute, but it's not the best interpretation of the

[01:12:22] Speaker 05:
what do you want us to do?

[01:12:25] Speaker 06:
Then we would certainly hope that the court would either get, either be persuaded that it's the best interpretation by according some form of need deference, which we do think would be appropriate or else like the preliminary injunction panel, according

[01:12:49] Speaker 06:
I just want to make clear that the position that we've heard throughout is that it's the best reading.

[01:12:56] Speaker 06:
And as your honor's question suggests, we do think that the Mead or Skidmore deference is not a null stat.

[01:13:05] Speaker 06:
And what the court is doing is looking, like I think what the cases talk about in part, is looking to an agency's

[01:13:16] Speaker 06:
expertise and experience and how well it's explained.

[01:13:20] Speaker 06:
And, you know, the court isn't going to say, I sort of, it's not Chevron deference, but a court can gather wisdom from an agency to the extent that it's sort of like in the same way that it might.

[01:13:34] Speaker 05:
Well, the agency's expertise concluded for a decade that bump stocks weren't machine guns.

[01:13:42] Speaker 05:
And, and, you know, over the course of, you know, decades or, you know, previously, you know, originally construed the Akins accelerator is not a machine gun and then changed its model agency, you know, is all over the place here.

[01:14:02] Speaker 06:
Well, I would say, your honor, that it's, that it's, I mean, you're absolutely right on one side.

[01:14:12] Speaker 06:
sort of when you come and you get a non-binding sort of like opinion from ATF, that's not sort of something that's the subject of a full agency consideration and endorsement.

[01:14:27] Speaker 06:
But the question at any rate is when the agency does come and give its full explanation and addresses all the concerns that have been raised, does it go

[01:14:42] Speaker 06:
find that parts or the whole of it are persuasive.

[01:14:46] Speaker 06:
And that's all we're saying is if the court reads

[01:14:54] Speaker 06:
persuasive, it is appropriate to look at that and to, you know, not determinative of anything.

[01:15:02] Speaker 02:
If we get past Skidmore Deference, and I understand your answer to Judge Wilkins' question to be, yes, you'd like us to say that it's the better reading, and yes, you'd like us to say even if we need to use Skidmore Deference to get there, it's the better reading.

[01:15:16] Speaker 02:
But if we're not there,

[01:15:18] Speaker 02:
then you would accept Chevron deference as a way to win the case, which is different from what I understood your position, the government's position to be at the preliminary injunction stage.

[01:15:28] Speaker 02:
But it sounds like now you're saying Chevron deference, you would accept Chevron deference as a way to win the case.

[01:15:35] Speaker 02:
You're not affirmatively urging the court not to apply Chevron deference.

[01:15:39] Speaker 06:
Well, I think yes.

[01:15:40] Speaker 06:
I mean, and I think the court was right that it's not

[01:15:50] Speaker 06:
asking doesn't mean that we get it.

[01:15:53] Speaker 06:
And so that's something for the court to determine.

[01:15:57] Speaker 06:
And we want this regulation.

[01:16:01] Speaker 06:
We think it's very important and we want it to be upheld.

[01:16:05] Speaker 02:
Is there a reason in the government's view that Chevron deference does not apply here?

[01:16:10] Speaker 06:
We don't think that it was a legislative rule.

[01:16:15] Speaker 02:
I want to get to that in a second, but I just want to make sure that's the one.

[01:16:21] Speaker 02:
You're not saying that Chevron is something that the government can waive by litigation conduct.

[01:16:27] Speaker 02:
You're not saying that Chevron doesn't apply when there's criminal applications, including this criminal application.

[01:16:34] Speaker 02:
You don't think that there's a problem with this regulation getting Chevron deference, notwithstanding its criminal applications.

[01:16:41] Speaker 06:
Yes, I mean, I think this court's presidents say that.

[01:16:45] Speaker 02:
But I just want to make sure I understand the government's position.

[01:16:48] Speaker 06:
No, that is our position.

[01:16:50] Speaker 02:
So the one obstacle to applying Chevron in your view to this regulation is that you view the regulation to be interpretive rather than legislative.

[01:17:00] Speaker 06:
That's correct.

[01:17:01] Speaker 02:
And then what do you do with, I think there's other statements too, but what do you do with the statement that I read earlier?

[01:17:07] Speaker 02:
Anyone currently in possession of a bump stock device is not acting unlawfully unless they fail to relinquish or destroy their device after the effective date of this regulation.

[01:17:16] Speaker 02:
How's that interpreted?

[01:17:18] Speaker 06:
That statement is, this is an area where Mr. Jaffe and I are in agreement.

[01:17:25] Speaker 06:
If you look at that statement and some of the other statements that this court cited in its earlier opinion,

[01:17:31] Speaker 06:
Um, I fully understand how the court concluded that I, this is, I think, a subject that we really, this is one thing we really didn't, I think, brief in the last go round, and Mr Jeff is right that

[01:17:53] Speaker 06:
pretty clear.

[01:17:54] Speaker 06:
I can sort of read to you a bunch of things.

[01:17:57] Speaker 02:
I don't think I need to read those.

[01:17:58] Speaker 06:
I didn't think you would find that helpful.

[01:18:00] Speaker 02:
I think I know which statements those are and I guess the way I read those statements is commensurate with the way the rule is constructed because the agency and the rule itself says our first argument is that this is the best reading and we think that this is the reading that we need to follow because it's the best reading of the text and then the alternative argument is

[01:18:18] Speaker 02:
even if it's not, we get Chevron deference.

[01:18:20] Speaker 02:
And the agency cites Chevron and goes through the Chevron framework.

[01:18:24] Speaker 02:
I mean, it's hard to imagine a rule that more clearly is asking for Chevron deference than one that invokes Chevron itself and then goes through the Chevron framework as I read it.

[01:18:34] Speaker 02:
And especially coupled with this statement, I'm not saying that I'm not predicting what's ultimately going to happen with this rule under Chevron.

[01:18:42] Speaker 02:
I understand

[01:18:43] Speaker 02:
that there's a lot of debate about the propriety of applying Chevron in the context of this kind of rule.

[01:18:48] Speaker 02:
But I'm just trying to understand what the agency actually thought it was doing.

[01:18:52] Speaker 02:
And when you look at what the agency in fact did, it said that it's the best reading and that the statute governs.

[01:18:58] Speaker 02:
And therefore, this is the reading the agency thought it needed to give.

[01:19:00] Speaker 02:
But then it also said, even regardless of that, we think that we're entitled to Chevron deference on it.

[01:19:09] Speaker 06:
Yeah, look, I could read one statement that I think goes to that in part, which is, it said 83 federal register at 6651401.

[01:19:21] Speaker 06:
66514, what'd you say?

[01:19:27] Speaker 02:
514-01.

[01:19:28] Speaker 06:
Oh, okay.

[01:19:31] Speaker 06:
And this is the one where they say they're actually distinguishing

[01:19:35] Speaker 06:
like in response to some statements, they're distinguishing this rule from State Farm, where they say that case involved a discretionary policy decision and did not depend on statutory construction.

[01:19:49] Speaker 06:
The bump stock device rule is not a discretionary policy decision.

[01:19:53] Speaker 06:
It's based solely upon the functioning device and the application of the relevant statutory definition.

[01:20:00] Speaker 06:
And they say, and I understand that one could sort of say, well, that's

[01:20:05] Speaker 06:
that doesn't resolve it.

[01:20:06] Speaker 06:
But I do think when you take that together with various other statements, the agency didn't think that it was established exercising its authority to establish a new rule.

[01:20:19] Speaker 06:
It was offering its view that this was the correct reading of the statute.

[01:20:26] Speaker 06:
And the agency like sort of like indicated that it believed it was then entitled to Chevron deference that's

[01:20:35] Speaker 06:
That's one thing where we do think that the lawyers like sort of in court can appropriately question the agency's judgment in that one respect.

[01:20:45] Speaker 06:
But the fact that the agency thought that it was interpreting the statute rather than setting out a legislative rule, I do think comes through throughout.

[01:20:58] Speaker 06:
And it's in the same way that when the agency like in the Akins accelerator case said, okay, look,

[01:21:05] Speaker 06:
gave every you know issued a public notice and they said okay in that case, like, you can keep these things if you remove the springs and here there's nothing to remove the agency is saying look, you know, we're like, you know, as a matter of enforcement.

[01:21:30] Speaker 02:
Can an agency not do the following?

[01:21:32] Speaker 02:
Just conceptually, can an agency not say, as a first order matter, we're engaging in interpretive exercise because we think the statute favors our interpretation.

[01:21:40] Speaker 02:
We're just interpreting the statutes to say that.

[01:21:42] Speaker 02:
But insofar as there may be ambiguity in the statute, we're then exercising our legislative authority that we were granted.

[01:21:49] Speaker 02:
under Chevron to forward the same rule legislatively.

[01:21:53] Speaker 02:
We now think that's the interpretation that governs as a matter of law because we can do that.

[01:21:59] Speaker 02:
Can an agency not do that conceptually?

[01:22:01] Speaker 06:
I think an agency can do that if it has the authority and thinks it has the authority.

[01:22:08] Speaker 02:
And do you think this agency does have the authority to do that?

[01:22:12] Speaker 06:
I don't want to speak definitively, but we do think that it would be like problematic.

[01:22:20] Speaker 06:
Like it's not at all clear at any rate that Congress has vested the authority in the agency to like sort of promulgate a rule that is not the best statutory interpretation just as a gap filling matter.

[01:22:36] Speaker 02:
Isn't that, that's just Chevron, isn't it?

[01:22:38] Speaker 02:
That's just what Chevron is.

[01:22:39] Speaker 02:
I mean, that.

[01:22:40] Speaker 06:
And that's why, and we,

[01:22:47] Speaker 06:
to promulgate that kind of a rule.

[01:22:50] Speaker 06:
Our only point right now is that I was trying to address is we don't think the agency was asserting that kind of a rule.

[01:22:57] Speaker 02:
No, I understand that.

[01:22:58] Speaker 02:
But why don't you think the agency has that kind of authority?

[01:23:01] Speaker 02:
What are you basing that on?

[01:23:03] Speaker 06:
We didn't address it in this case.

[01:23:05] Speaker 06:
We addressed it in other circuits.

[01:23:07] Speaker 06:
But if you look at the various kinds of authority in the statute and where they're given and for what they're given,

[01:23:17] Speaker 06:
of authority contrast with others.

[01:23:19] Speaker 06:
I'm happy if the court would like a supplemental filing.

[01:23:22] Speaker 02:
But it's the scope of the delegation and others.

[01:23:24] Speaker 02:
I'm just asking for a description of what it is.

[01:23:26] Speaker 02:
It's the scope of the particular delegations you're talking about.

[01:23:29] Speaker 02:
That's right.

[01:23:30] Speaker 06:
Yes.

[01:23:30] Speaker 06:
And we just think that it probably does.

[01:23:33] Speaker 06:
So this isn't a settled matter.

[01:23:35] Speaker 06:
And I don't want to get out ahead of anybody on this.

[01:23:39] Speaker 06:
But we do think that it's questionable.

[01:23:56] Speaker 02:
And let me ask you then the last question on this score is this is I'm just reading from the rule.

[01:24:02] Speaker 02:
And this is at 66527.

[01:24:06] Speaker 02:
The department believes this rule's interpretation of automatically and single function of the trigger accords the plain meaning of those terms.

[01:24:12] Speaker 02:
Wherever, even if those terms are ambiguous, this rule rests on a reasonable construction of them.

[01:24:18] Speaker 02:
Congress has implicitly left it to the department to define automatically and single function of the trigger in the event those terms are ambiguous.

[01:24:27] Speaker 02:
See Chevron, 467 U.S.

[01:24:29] Speaker 02:
at 844.

[01:24:31] Speaker 02:
Does that, that sounds to me like an agency that thinks it has authority to,

[01:24:36] Speaker 02:
Define automatically and single function of the trigger in the event those terms are ambiguous.

[01:24:42] Speaker 02:
Is that not an exercise at Chevron Authority?

[01:24:47] Speaker 06:
Frankly, I just don't think that the agency was fully addressing exactly what the nature of the delegation was.

[01:24:57] Speaker 06:
But your honor's point, obviously, is well taken.

[01:25:02] Speaker 06:
But we do think that what the agency was

[01:25:09] Speaker 06:
should be upheld on that basis.

[01:25:16] Speaker 02:
OK, let me make sure my colleagues don't have additional questions for the government.

[01:25:21] Speaker 05:
Oh, thank you.

[01:25:21] Speaker 05:
No.

[01:25:25] Speaker 05:
Maybe this was covered in your questioning with Chief Judge Srinivasan, but I just want to be clear about this.

[01:25:34] Speaker 05:
So.

[01:25:36] Speaker 05:
You're saying today

[01:25:38] Speaker 05:
that you would prefer for us to hold, I guess, like the Fifth Circuit in the Cargill case, that this is the best interpretation of the statute and leave it at that.

[01:25:52] Speaker 05:
Alternatively, it's the best interpretation of the statute, perhaps aided by some sort of skid and more deference and leave it at that.

[01:26:05] Speaker 05:
Or alternatively,

[01:26:07] Speaker 05:
even if we don't conclude that it's the best interpretation of the statute, even with more deference, then under Chevron, we say it's a reasonable interpretation and uphold the regulation, right?

[01:26:28] Speaker 05:
Am I correct that that's

[01:26:34] Speaker 05:
So just so that I'm clear about this then, if the agency in its rule had said, you know, over the years, we didn't think that bump stocks were machine guns because we thought that that was the best interpretation of the statute.

[01:27:03] Speaker 05:
But the statute could be reasonably interpreted and construed to include bump stocks.

[01:27:14] Speaker 05:
And so given that it is ambiguous under Chevron, we're going to adopt that construction, even though we can see that it's not the best interpretation of the statute.

[01:27:30] Speaker 04:
Suppose the rule said that.

[01:27:33] Speaker 04:
You would say that we should still uphold the rule?

[01:27:40] Speaker 06:
I would have to recalibrate and make sure that at that point the precise question of the agency's authority would be put front and center.

[01:27:52] Speaker 06:
We certainly would not be here saying that it should be upheld as the best interpretation of the rule.

[01:28:02] Speaker 05:
But I guess I hear in your answer you don't think that that necessarily changes the analysis that we as the court should undertake if that is in fact the way that the rule is written.

[01:28:23] Speaker 06:
I'm trying to think of Chevron cases where the agency has put it in those terms.

[01:28:29] Speaker 06:
I mean, usually,

[01:28:40] Speaker 06:
And the court goes, I might not have agreed with your interpretation as an initial matter but it's good enough.

[01:28:47] Speaker 06:
So, like, we're going to record a deference.

[01:28:51] Speaker 06:
It's kind of stranger if the agency begins by

[01:28:58] Speaker 05:
But, you know, again, I'd want to, I'd just like to, if I have to address that, I'd really like to... The reason I'm asking the question, I'm not trying to be obtuse here, is, I mean, I think it gets to one of the concerns that's raised by your friend on the other side and some of the

[01:29:19] Speaker 05:
occurring dissenting opinions, et cetera, that your friend cites, which is why is it okay for a court to undertake that analysis and say, well, we don't think that this is the best interpretation of this criminal regulation, but it's a reasonable one.

[01:29:40] Speaker 05:
And so we'll defer to the agency and allow it.

[01:29:45] Speaker 05:
Why should it be okay for the kind of the court

[01:29:48] Speaker 05:
to think about it in that fashion if we really wouldn't countenance that if the agency were to operate in that fashion, if the agency were to just say flat out, you know, this isn't really the best interpretation of this language that Congress gave us.

[01:30:06] Speaker 05:
But given the political, you know, realities here,

[01:30:11] Speaker 05:
We can't get a, you know, the administration has tried, but can't get legislation through Congress.

[01:30:21] Speaker 05:
And there's a public outcry to do something about this.

[01:30:26] Speaker 05:
We think that this is a reasonable interpretation.

[01:30:29] Speaker 05:
So we're going to adopt it.

[01:30:32] Speaker 05:
And, you know, we're just being very candid about what's going on here.

[01:30:36] Speaker 05:
And that's what we're doing.

[01:30:38] Speaker 05:
Um, um, can an agency operate in that fashion?

[01:30:44] Speaker 06:
Um, well, with the, I don't want to say that's not this case, but it's not this case.

[01:30:49] Speaker 06:
I understand.

[01:30:52] Speaker 06:
And the, I mean, my understanding of that when a court, a court Chevron deference, it's looking, you know, and this is, you know, court made doctrine courts decide when they're going to a court Chevron deference.

[01:31:10] Speaker 06:
and its expertise and saying, you guys like, and the court in this preliminary injunction opinion, like sort of specifically said, I think in the context of the single function of the trigger sort of notes that the agency is in a better position in the court to evaluate all the concerns that are involved.

[01:31:33] Speaker 06:
And that's, I think the kind of thing that triggers Chevron deference

[01:31:40] Speaker 06:
And if an agency is going, you know, I don't really know what the best answer is.

[01:31:45] Speaker 06:
There is not a lot of reason for a court to say, I'm gonna defer to an agency that doesn't really know what the best answer is.

[01:31:53] Speaker 02:
I thought the answer to Judge Wilkins is, isn't that just brand X?

[01:31:57] Speaker 02:
I mean, the brand X says, if a court decides the better interpretation of the statute is X, that still leaves room for an agency to decide

[01:32:07] Speaker 02:
that the interpretation that's going to govern as a matter of law is why, as long as the court didn't say it's unambiguously the one that's compelled.

[01:32:14] Speaker 02:
And then that necessarily means that an agency can decide, even though this is not the better interpretation of the statute according to a court, it's still going to be the interpretation we adopt as a matter of law going forward.

[01:32:25] Speaker 02:
Isn't that just what Brandex says an agency can do?

[01:32:28] Speaker 07:
But certainly does.

[01:32:30] Speaker 07:
Yes, I mean, the court.

[01:32:32] Speaker 07:
Yeah, but I mean, is that so if the agency, Judge Wilkins asked,

[01:32:37] Speaker 07:
Suppose the agency says, this is not the best reading of the statute.

[01:32:42] Speaker 07:
Would it pass muster under Chevron?

[01:32:43] Speaker 07:
I'm sitting here thinking, I can't think of a case.

[01:32:46] Speaker 07:
I'm not saying there isn't.

[01:32:48] Speaker 07:
I can't imagine a court upholding that as a reasonable exercise of agency authority, especially if, as your opponent would argue, there's a question of delegated authority here.

[01:33:03] Speaker 07:
The agency even has the authority to do what is saying not the best reading of the statute.

[01:33:08] Speaker 07:
So it's more complicated than this.

[01:33:12] Speaker 07:
If the agency says it's not the best reading of the statute, well, we're going to do it anyway because we think we have the authority to do it because we'll make up an ambiguity or we'll pretend there's an ambiguity.

[01:33:22] Speaker 07:
I can't imagine our court upholding that.

[01:33:24] Speaker 07:
I cannot imagine that.

[01:33:26] Speaker 06:
Your Honor, I'm not disagreeing enough.

[01:33:34] Speaker 06:
I mean, my understanding of Grand Ex would be the court says, I'm not upholding this, but the agency has not spoken to it.

[01:33:44] Speaker 06:
And then if the agency comes back and says, look, it explains why the agency thinks this is the best interpretation, even if the court had not originally thought so, that a court in light of the agency's interpretation, as long as it's not foreclosed by the statute,

[01:34:01] Speaker 06:
may then determine to give each other on deference.

[01:34:04] Speaker 06:
And that's a very different situation, I think, from what Judge Wilkins was positing here.

[01:34:12] Speaker 02:
Yeah, I don't wanna get too academic about it, but I thought with Brand X, there's a difference between the agency itself concluding it's not the best interpretation and a court concluding it.

[01:34:20] Speaker 02:
My point is simply that after a court says that interpretation of the statute is in one direction,

[01:34:28] Speaker 02:
the agency sort of doesn't have the freedom to say, actually, the best interpretation statute is the otherwise, which is not gonna matter, because the court has already said that's not right.

[01:34:36] Speaker 02:
But even if a court says the best interpretation of a statute is in one direction, the agency is still free to adopt an interpretation that disagrees with that.

[01:34:44] Speaker 07:
That's what I think that's not- Well, not in two situations.

[01:34:48] Speaker 07:
One, if the court says this is the only interpretation.

[01:34:51] Speaker 02:
Yes, definitely.

[01:34:52] Speaker 07:
The agency's not in play, and I'm suggesting with no evidence, just experience,

[01:34:57] Speaker 07:
I cannot imagine the agency prevailing if after the court rules one way, the agency comes back and says, we want to do it a different way.

[01:35:06] Speaker 07:
It's not the best reading of the statute.

[01:35:08] Speaker 07:
We just want to do it.

[01:35:09] Speaker 07:
They give no policy.

[01:35:10] Speaker 07:
I just can't imagine us upholding it.

[01:35:12] Speaker 02:
I'm assuming the policy justification and all the other stuff that would typically attend.

[01:35:17] Speaker 02:
Yeah.

[01:35:18] Speaker 02:
And can I ask one follow-up question, which is on your concerns about the delegation, which I take to be driving some of this.

[01:35:27] Speaker 02:
under existing law, what's the decision you'd point to that elucidates that set of concerns, given that at least in some cases, like Babbitt and other cases that have occasioned Chevron deference, there hasn't been the kind of pointed analysis of the scope of the delegation in the way that your concern

[01:35:57] Speaker 02:
hypothesizes.

[01:35:58] Speaker 02:
And that's not to say that it's not right to be concerned about it.

[01:36:00] Speaker 02:
It's not to say that it's not something that the Supreme Court could well be concerned with.

[01:36:04] Speaker 02:
I totally understand all of that.

[01:36:06] Speaker 02:
I'm just wondering under the existing cases, what is the one you'd point to or ones you'd point to?

[01:36:12] Speaker 02:
Given that, and as I understand Babbitt, it didn't talk about the scope of the delegation.

[01:36:18] Speaker 02:
It just applied Chevron authority because there was a delegation.

[01:36:23] Speaker 06:
I'm not sure exactly what would answer your question.

[01:36:32] Speaker 06:
There are certainly statutes that are quite clear.

[01:36:36] Speaker 06:
For example, the Securities Exchange Commission, you fill in the gaps.

[01:36:42] Speaker 06:
And this has been the way the law has been applied, you know, for decades.

[01:36:45] Speaker 06:
I don't think anybody's.

[01:36:47] Speaker 02:
I don't think there's any doubt that the statutes vary.

[01:36:48] Speaker 02:
That seems absolutely right.

[01:36:50] Speaker 02:
And it's an important consideration to take into account.

[01:36:52] Speaker 02:
I'm just understanding under the decisions, what is the decision that, and it seems logical.

[01:36:57] Speaker 02:
I understand the logic of it.

[01:36:58] Speaker 02:
I totally do.

[01:36:59] Speaker 02:
I'm just trying to understand under the doctrine as we see it, what's the best place to look?

[01:37:07] Speaker 06:
not if you don't have an answer that's okay this court like itself in the in the preliminary on the junction opinion canvassed some of the relevant law not just about chevron but also about criminal penalties i'm not sure i have a lot to add to that's fine discussion all right let me make sure my colleagues don't have further questions for you mr sturm i do not oh thank you

[01:37:34] Speaker 02:
Thank you very much.

[01:37:37] Speaker 02:
Mr. Jaffee, we'll give you three minutes for rebuttal.

[01:37:38] Speaker 02:
We'll see where it goes.

[01:37:40] Speaker 02:
Great.

[01:37:40] Speaker 02:
Thank you.

[01:37:41] Speaker 03:
I guess starting with the last questioning that you had on Chevron and things like that, I would just suggest reading the government's opposition to our petition.

[01:37:51] Speaker 03:
Right after the original Gettys case, you'll see the more full blown version of their position on this, which I think has been pretty consistent over the cases.

[01:37:58] Speaker 03:
I would say that

[01:37:59] Speaker 03:
you hit it right on the head where you say you assume the policy justifications, and I think that's exactly what's missing in this case, is the agency never said, look, we understand that there's some wiggle room here, and we pick this one anyway, because it does all these great things.

[01:38:14] Speaker 03:
And in fact, when said, by the way, here's an alternative that you could use, they said, no, we don't have authority to do that that alternative, because there's no wiggle room.

[01:38:21] Speaker 03:
So for them to say, we believe this is plain meaning, but if it's Chevron, well, since we're right, it's if so facto reasonable, that's not exercising policy discretion.

[01:38:32] Speaker 03:
That's just saying, well, we're right.

[01:38:33] Speaker 03:
So of course it's reasonable.

[01:38:34] Speaker 03:
I don't think it's quite the same.

[01:38:36] Speaker 03:
Going back to the definition of single function of the trigger, I think your conversation with my colleague has sharpened the point a little bit.

[01:38:42] Speaker 03:
And your question about what's the trigger

[01:38:45] Speaker 03:
I think answers a bunch of these hypotheticals.

[01:38:48] Speaker 03:
So obviously, the Gatlin gun is a good example.

[01:38:51] Speaker 03:
So the original Gatlin gun opinion was for two different patents, one for a hand crank Gatlin gun and one for a motor crank Gatlin gun.

[01:39:00] Speaker 03:
And originally, the agency said they're both not machine guns, but later in the minigun opinion said a motor driven Gatling gun would be a machine gun.

[01:39:09] Speaker 03:
And there, I think the better reasoning is because the trigger is the on button of the motor, not the little doohickey that moves back and forth.

[01:39:19] Speaker 03:
the trigger has been translated.

[01:39:21] Speaker 03:
And that's the same answer to the auto glove.

[01:39:24] Speaker 03:
There's one button and it keeps moving back and forth.

[01:39:27] Speaker 03:
That button is the trigger at that point, not the little doohickey that the other mechanical thing keeps moving.

[01:39:34] Speaker 05:
And the difference- How do you square that understanding with your criticism of the current rule?

[01:39:43] Speaker 05:
Because your criticism of the current rule

[01:39:47] Speaker 05:
is that single function of the trigger is a mechanistic description of the actual trigger of the gun.

[01:39:57] Speaker 03:
Well, one has to understand what the trigger is.

[01:39:59] Speaker 05:
Something different now.

[01:40:01] Speaker 03:
No, I'm not.

[01:40:01] Speaker 03:
I'm saying the same thing.

[01:40:02] Speaker 03:
The trigger is the piece of a gun that accepts external input.

[01:40:07] Speaker 03:
And each time external input is applied to that piece of the gun,

[01:40:11] Speaker 03:
that's a new function of the trigger.

[01:40:13] Speaker 03:
You move it.

[01:40:14] Speaker 03:
But once I've automated it, let's say I put a cam and totally enclose it so that you can never touch it again and just have a button out there, the trigger is the button.

[01:40:24] Speaker 03:
It accepts the external input, i.e.

[01:40:26] Speaker 03:
my action.

[01:40:27] Speaker 03:
And that's why the press it and shoot, press it and shoot, press it and shoots is multiple functions of the trigger, regardless of what's happening inside the black box.

[01:40:36] Speaker 05:
So my hypothetical about the mechanical hand with the finger

[01:40:41] Speaker 05:
Which, you know, I assume that's similar to the auto glove.

[01:40:46] Speaker 05:
I don't know.

[01:40:47] Speaker 05:
I didn't might look detailed at what what an auto glove is.

[01:40:52] Speaker 05:
But so are you saying that if if if in my invention.

[01:40:57] Speaker 05:
that has a mechanical index finger that, if you push the button, it just rapidly moves that finger back and forth to activate the trigger, you would agree that that is a machine gun, yes or no?

[01:41:12] Speaker 03:
I would say the trigger is the button, and yes, then it would be a single function of the trigger, yes.

[01:41:17] Speaker 03:
But the trigger is no longer what you would traditionally think of colloquially as the trigger.

[01:41:22] Speaker 03:
But in a bump stock, the trigger is the trigger.

[01:41:25] Speaker 03:
And the thing that's making the trigger move is literally my finger.

[01:41:29] Speaker 03:
inputting it through my manual forcing of the gun forward.

[01:41:33] Speaker 03:
The only thing recoil does is reset the trigger.

[01:41:36] Speaker 03:
The recoil never causes the gun to fire a second time.

[01:41:40] Speaker 03:
And you can see this in the record.

[01:41:42] Speaker 03:
Judge Henderson cited it, the Adam Kraut video, where he shows exactly what happens if you cease applying new manual input.

[01:41:51] Speaker 03:
It shoots once and stops.

[01:41:53] Speaker 03:
And that's in the record.

[01:41:54] Speaker 03:
I think we said it in our brief, but it's also in the previous opinion.

[01:41:58] Speaker 05:
Let me ask you, you know, the kind of nerdy, you know, procedural question of with respect to this case on summary judgment and what the district court found to be undisputed facts.

[01:42:19] Speaker 05:
First of all, are you

[01:42:22] Speaker 05:
arguing here, at least I didn't see it in your brief, that the district court erroneously found a fact to be undisputed that was actually disputed.

[01:42:32] Speaker 05:
You're not saying that, are you?

[01:42:33] Speaker 03:
No, I think we all agree on the literal mechanical facts.

[01:42:37] Speaker 03:
What we disagree is with the interpretation of those facts as applied to the law, which I view as a legal question, not as a factual question.

[01:42:44] Speaker 03:
So no, I don't think there's any meaningful fight about the physical operation of a bump stock and whether or not you need to continue manual input to cause it to bump into your finger each time.

[01:42:56] Speaker 03:
There's no dispute about that.

[01:42:58] Speaker 03:
I don't think the district court suggested there is.

[01:43:00] Speaker 03:
I think the district court in fact largely followed this court's earlier decision on the P.I.

[01:43:04] Speaker 03:
motion and just sort of accepted that decision and didn't really address the facts any further beyond that.

[01:43:12] Speaker 03:
So no, I don't think we have a dispute about the facts in this case.

[01:43:15] Speaker 03:
I think it's an application of the law to those facts that we're fighting about.

[01:43:19] Speaker 02:
Can I ask on the hypothetical weapon that I have, we've had a lot of hypotheticals, but just to go back to the initial hypothetical weapon that I constructed conjured up in my own mind.

[01:43:30] Speaker 02:
That weapon, the reason I was interested in that hypothetical was because that doesn't involve a reconceptualization of the trigger.

[01:43:37] Speaker 02:
So you switch it into automatic mode and then it also requires a pull of the conventional trigger.

[01:43:45] Speaker 02:
And then you could remove your hand and the trigger just keeps on moving.

[01:43:49] Speaker 02:
And you took the position, which I totally understand because of the way you read the statute, that that would not be a machine gun.

[01:43:54] Speaker 02:
And I'm just wondering when you read the statute,

[01:43:58] Speaker 02:
any weapon which shoots automatically more than one shot by a single function of the trigger.

[01:44:04] Speaker 02:
It just feels to me like an ordinary English understanding of that is that, yeah, because there's a single function of the trigger and then it's true the trigger keeps moving and the trigger has to keep moving every time in order to release the hammer.

[01:44:15] Speaker 02:
That's all true, but it's still shooting automatically more than one shot by a single function of the trigger, even if there's other functions of the trigger that happen to disseminate additional shots.

[01:44:28] Speaker 03:
So, so, with a better understanding of that hypothetical having listened to you and my colleague, talk about it.

[01:44:35] Speaker 03:
I don't think the trigger is functioning, after you want to pull your finger away.

[01:44:40] Speaker 03:
If that's why I sort of said, you need to understand what a trigger does it accepts external input.

[01:44:46] Speaker 03:
And that trigger is no longer accepting external input.

[01:44:49] Speaker 03:
It is no longer accepting my finger causing it to move.

[01:44:53] Speaker 03:
Whatever it is.

[01:44:55] Speaker 02:
There's some external input because there's some machine there's, I mean, I don't know if it's an electrical signal or what it is.

[01:45:01] Speaker 02:
There's something, I mean, it may not be a human input, but there's some, just like with the bump stock, it's actually bumping up against, it could be a stick.

[01:45:10] Speaker 03:
Well no, so if it were just a stick, it wouldn't keep firing unless the external input was you pushing it against the stick.

[01:45:19] Speaker 02:
Oh yeah, there's got to be the forward pressure.

[01:45:22] Speaker 03:
Because to receive external input, I mean,

[01:45:27] Speaker 03:
Obviously, if I had literally a mechanical device that I put in there and I sealed it off and then I press the button, that at some point becomes internal input.

[01:45:35] Speaker 03:
I mean, that's how every machine gun works is with an internal mechanism that causes it to keep going.

[01:45:41] Speaker 03:
You have to sort of separate the notion of the trigger, i.e.

[01:45:44] Speaker 03:
that piece of a gun that accepts outside input from those parts inside that

[01:45:52] Speaker 03:
reset and wind up and go again and again and again.

[01:45:55] Speaker 02:
So the hypothetical weapon I had, it would still be the same part of the weapon.

[01:45:58] Speaker 02:
It would still be the trigger that you pulled.

[01:46:00] Speaker 03:
It wouldn't be the trigger conceptually anymore.

[01:46:04] Speaker 02:
It wouldn't be taking my input.

[01:46:07] Speaker 02:
For subsequent shots, I'm talking about for the initial shot, it's still a function of the trigger.

[01:46:12] Speaker 02:
You're just saying for subsequent shots, you think the trigger's not functioning anymore because- There's no second function, that's right.

[01:46:18] Speaker 03:
So for me, the single function of the trigger is, I think we said this in our brief, I read it as one and only one function of the trigger per shot.

[01:46:28] Speaker 02:
Even though in my hypothetical, the trigger does in fact have to move in order to allow the firing of an additional shot.

[01:46:35] Speaker 02:
It's not.

[01:46:36] Speaker 03:
Okay, I just want to imagine that I just hung there flapping about that there was some internal thing that was driving the shots and the trigger just flapped about with it, but it wasn't accepting input.

[01:46:48] Speaker 03:
I would say that there's no further function of the trigger, it may be moving here and there and.

[01:46:54] Speaker 03:
loosey goosey, but it's not functioning as in taking external input and translating that into internal operation, which was not taking external input.

[01:47:03] Speaker 02:
It's hard for me to see how it's not actually functioning because if the trigger has to move in order to release the hammer, yeah, you could just design the weapon in a different way.

[01:47:10] Speaker 02:
So it didn't have to, but I'm envisioning a weapon when, in which it does.

[01:47:13] Speaker 02:
And the reason I'm envisioning that weapon is because if you switched it into semi-automatic mode, it would still function the same way that you would still have to repeatedly pull the trigger in order to allow

[01:47:22] Speaker 02:
the firing of an additional round.

[01:47:24] Speaker 02:
So mechanically, the trigger needs to move in order to release the hammer.

[01:47:29] Speaker 02:
I think you could say the trigger doesn't require external input anymore.

[01:47:33] Speaker 02:
That I take.

[01:47:34] Speaker 02:
But to say it's not functioning at all, I'm not sure I understand because it needs to function.

[01:47:38] Speaker 02:
It needs to move.

[01:47:39] Speaker 02:
Otherwise, the hammer is not going to be released.

[01:47:41] Speaker 03:
Not once you switch the selector.

[01:47:43] Speaker 03:
That's actually the ultimate point is that your hypothetical of a select fire gun that you can switch the selector disengages

[01:47:52] Speaker 03:
the trigger from any involvement in subsequent shots.

[01:47:55] Speaker 02:
No, that's not my hypo, because at least I don't think it is.

[01:48:01] Speaker 02:
Because once you switch it to automatic mode, it's not firing yet.

[01:48:04] Speaker 02:
You still have to pull the trigger.

[01:48:06] Speaker 03:
Oh, right.

[01:48:06] Speaker 03:
Once.

[01:48:07] Speaker 03:
I understand that it takes the first, but then you take your finger away, was your hypothetical, I thought.

[01:48:12] Speaker 02:
That's right.

[01:48:12] Speaker 03:
So it's no longer accepting input for each subsequent shot.

[01:48:16] Speaker 03:
Whereas in a bump stock,

[01:48:18] Speaker 03:
it has to accept input, otherwise there will not be a subsequent shot.

[01:48:22] Speaker 03:
If I did what you suggested, the bump shot fires once and it resets, but it never fires a second time.

[01:48:28] Speaker 02:
My point is only that in the subsequent shots with the weapon that I've conjured up, and if there's a real one, tell me, but I'm assuming there's not, it still requires a movement of the trigger for an additional shot to be fired.

[01:48:42] Speaker 02:
There's not external input to the trigger.

[01:48:45] Speaker 02:
I agree with you on that.

[01:48:47] Speaker 02:
It's happening automatically, but the way I'm constructing the weapon is that it still requires a movement of the trigger for a subsequent shot, because otherwise the hammer's not going to be released.

[01:48:56] Speaker 03:
Your hypothetical is very much like a motorized gatling gun.

[01:49:02] Speaker 03:
And I think what ATF ultimately did when it did the minigun opinion is rather than worry about what happens to what we traditionally think of as the trigger, they reconceptualize the on button.

[01:49:13] Speaker 03:
Right.

[01:49:13] Speaker 02:
And I'm trying to get away from that.

[01:49:15] Speaker 03:
I'm trying to get away.

[01:49:15] Speaker 03:
I'm saying I don't think your hypothetical is that different.

[01:49:18] Speaker 03:
Just the on button is the trigger itself.

[01:49:20] Speaker 03:
You hit it once and go away.

[01:49:21] Speaker 03:
It's like hitting the on button for a motor and going away.

[01:49:24] Speaker 03:
And it'll just keep going.

[01:49:26] Speaker 03:
And the fact that in a Gatling gun, there's a cam that's driving the traditional trigger.

[01:49:31] Speaker 02:
And I don't want to beat this too much, but it's a little bit different because it's not just hitting the on button.

[01:49:36] Speaker 02:
You actually have to pull the trigger also.

[01:49:38] Speaker 02:
And what we can consider to be the conventional trigger, it's meant to talk about a particular piece of the statute.

[01:49:43] Speaker 02:
But I think I understand your argument.

[01:49:44] Speaker 02:
I have one last question for you, which is the concern that's been raised a few times today about the scope of the delegation.

[01:49:52] Speaker 02:
the way that the delegations themselves are written.

[01:49:54] Speaker 02:
I just want to make sure, I didn't see that argument in your briefs and I don't, as far as I can tell, the briefs don't cite much less quote the delegations at all.

[01:50:03] Speaker 02:
Am I right about that?

[01:50:04] Speaker 03:
I think we only cited it by reference to the government's position taken in the brief in opposition to our cert petition where we said we agree that they don't have this authority.

[01:50:16] Speaker 03:
I don't know that we belabored it because of course we were agreeing on it and it wasn't a,

[01:50:21] Speaker 03:
great use of space, given that we seemingly agree on it.

[01:50:25] Speaker 02:
Okay, point taken.

[01:50:29] Speaker 07:
Can I ask one more thing?

[01:50:30] Speaker 07:
I want to make sure following up on what the chief judge was raising about delegated authority.

[01:50:38] Speaker 07:
Part of your argument is your read of the statute is the plain meaning of the current statute forecloses

[01:50:48] Speaker 07:
what the agency proposes, right?

[01:50:50] Speaker 07:
That's a starting point, right?

[01:50:52] Speaker 07:
Yes.

[01:50:54] Speaker 07:
Which, of course, means there could be delegated authority, you assume, right?

[01:51:00] Speaker 07:
And what was it?

[01:51:01] Speaker 03:
Even if there were delegated authority.

[01:51:03] Speaker 07:
I know.

[01:51:03] Speaker 07:
I understand.

[01:51:04] Speaker 07:
Just stay with me a minute.

[01:51:06] Speaker 07:
There could be delegated authority.

[01:51:07] Speaker 07:
And what would you, as best you can in this setting, what would you imagine would be enough

[01:51:17] Speaker 07:
to allow for you to be able to say comfortable, yes, there's delegated authority because the statute says what?

[01:51:24] Speaker 07:
What do you have in mind?

[01:51:26] Speaker 03:
I would think you would need something very much like the SEC statute, which says the agency has authority to define what fraud is.

[01:51:33] Speaker 03:
And I make rules describing what fraud is.

[01:51:37] Speaker 07:
This is important for me to understand your position.

[01:51:40] Speaker 07:
In your view, you need something that says the agency

[01:51:45] Speaker 07:
has the authority to define the limits of machine gun.

[01:51:48] Speaker 07:
Is that right?

[01:51:49] Speaker 03:
Yes, or the limits of firearms in general, as defined under this statute.

[01:51:53] Speaker 03:
I mean, one could imagine a broader delegation.

[01:51:56] Speaker 03:
I, of course, would have some constitutional problems with that.

[01:51:59] Speaker 03:
But in terms of- No, no, no, no.

[01:52:01] Speaker 07:
Don't do that.

[01:52:02] Speaker 07:
I want you to, so I can understand your position.

[01:52:05] Speaker 07:
I want you to tell me what would be an acceptable delegation.

[01:52:09] Speaker 07:
Obviously, I can't ask you to write a statute.

[01:52:12] Speaker 03:
Institutionally, virtually none.

[01:52:14] Speaker 03:
The delegation would be implementation only, which is what I think the agency has.

[01:52:18] Speaker 03:
So if the question is, you have to pay a fee to get your gun.

[01:52:21] Speaker 07:
Why are you saying implementation only?

[01:52:23] Speaker 07:
Because that's certainly not a general rule of law.

[01:52:25] Speaker 07:
You're saying because it's a criminal?

[01:52:27] Speaker 03:
Yes, and because I think they're major questions and I think

[01:52:29] Speaker 07:
We don't know what major questions are.

[01:52:35] Speaker 07:
You say major questions doctrine.

[01:52:37] Speaker 07:
I challenge that there is no doctrine.

[01:52:39] Speaker 07:
There are references to it.

[01:52:41] Speaker 07:
So I don't know what you're talking about.

[01:52:42] Speaker 07:
Okay.

[01:52:43] Speaker 07:
Let's leave that be.

[01:52:44] Speaker 07:
There are a few scholars who've gotten tenure because they wrote about it, but I don't know what we're talking about.

[01:52:48] Speaker 07:
What are you talking about when you say a permissible delegation?

[01:52:52] Speaker 07:
What would be required?

[01:52:54] Speaker 03:
There would be required guidance from Congress on the relevant policy choices to be made to put people in jail.

[01:53:00] Speaker 03:
I think it is the separation of powers side of the lenity doctrine that defines the narrowness with which Congress must legislate.

[01:53:09] Speaker 03:
in order to provide proper guidance to an agency to then implement that legislation.

[01:53:14] Speaker 03:
And to me, that would be extremely narrow.

[01:53:16] Speaker 03:
They would need a clear statement by Congress with guiding principles that told the agency how far they could go and how far they couldn't go.

[01:53:23] Speaker 07:
Okay, and so you go tighter on delegated authority.

[01:53:26] Speaker 07:
Your answer to me on delegated authority is tighter than it would otherwise be in these other statutory settings because this is criminal.

[01:53:34] Speaker 03:
Yes.

[01:53:35] Speaker 03:
Am I right?

[01:53:35] Speaker 03:
I'm asking.

[01:53:36] Speaker 07:
I'm not telling you.

[01:53:37] Speaker 07:
I'm asking, huh?

[01:53:38] Speaker 03:
Yes, is the answer.

[01:53:39] Speaker 03:
Yes.

[01:53:39] Speaker 03:
I think the rule of lenity is an overlay to delegation problems.

[01:53:43] Speaker 07:
Okay.

[01:53:44] Speaker 07:
I don't understand, though.

[01:53:46] Speaker 07:
I don't need, no, I'm done.

[01:53:47] Speaker 07:
I just, I'm trying to understand this position.

[01:53:49] Speaker 02:
Go ahead.

[01:53:51] Speaker 02:
One thing I don't understand is major questions is not a constitutional limitation.

[01:53:54] Speaker 07:
No, not at all.

[01:53:55] Speaker 07:
Because it's not even a doctrine that anyone has defined.

[01:53:59] Speaker 07:
It's two words.

[01:54:00] Speaker 02:
as long as the delegation is specific enough, that satisfies what, if we assume there's a major questions doctrine, and I'll reach out well for purposes of this question, it just requires a specific enough delegation, right?

[01:54:11] Speaker 03:
And so- Oh, but that's right, but that's the question, right?

[01:54:14] Speaker 03:
If it's specific enough, it answers the major questions.

[01:54:17] Speaker 03:
It's not that you can't delegate small things on major questions.

[01:54:22] Speaker 02:
My point is this, when Judge Edwards asked you to specify the type of delegation that would suffice,

[01:54:29] Speaker 02:
it doesn't seem to me to be an answer to say there's no delegation that could suffice because of major questions, because what major questions ask is that the delegation has to be specific enough.

[01:54:38] Speaker 07:
Right.

[01:54:39] Speaker 03:
Yeah, I mean, I hopefully I thought I conveyed that as long as Congress set sufficient guide rails for the agency, that would be that would satisfy my delegation concerns, as well as whatever you call them, that the policy concerns that put people in jail need to be decided by the legislature, not by an executive branch official.

[01:54:59] Speaker 03:
So, however, that's what I was trying to convey that I don't care what name we put on it, I think

[01:55:06] Speaker 03:
Lenity just implements that whole point.

[01:55:09] Speaker 03:
I think these other doctrines implement that whole point.

[01:55:11] Speaker 03:
But in a criminal context, I think it needs to be tighter that the guardrails for the agency need to be tighter.

[01:55:17] Speaker 03:
It can't just be go forth and do good and criminalize those things that you think are bad.

[01:55:22] Speaker 02:
That was the SEC statute that allows regulations that define the scope of criminal law.

[01:55:30] Speaker 02:
That's enough in your view.

[01:55:32] Speaker 03:
Well, I would probably challenge those two that they need more guardrails.

[01:55:36] Speaker 03:
But we've at least over the years created common law guardrails on the scope of fraud.

[01:55:41] Speaker 03:
And so if we assume Congress legislated with those guardrails in mind, then maybe it is.

[01:55:45] Speaker 03:
Yes, that to me is not a is not an intent problem, but a specificity problem.

[01:55:50] Speaker 03:
And then we just have delegation issues.

[01:55:53] Speaker 05:
All right.

[01:55:54] Speaker 05:
Thanks.

[01:55:55] Speaker 05:
That's all I had.

[01:55:56] Speaker 05:
So let's suppose we agree that Chevron deference isn't appropriate here.

[01:56:02] Speaker 05:
And we conclude that your interpretation of the statute and the government's interpretation of the statute are equally reasonable.

[01:56:14] Speaker 05:
They're equally plausible.

[01:56:19] Speaker 05:
Is the tiebreaker

[01:56:22] Speaker 05:
the fact that Congress did delegate to the agency to regulate, to enforce this as it deems necessary or however, you know, I'm paraphrasing the statute.

[01:56:38] Speaker 05:
You know, given that delegation, shouldn't the government win the tie?

[01:56:44] Speaker 03:
No, I would say Lenity is the tiebreaker in that situation because

[01:56:48] Speaker 03:
If you assume that they just said, go forth and implement as you see fit, I think there's no guardrail there to give them guidance.

[01:56:58] Speaker 03:
If we think there are equally plausible versions that are so disparate, to me, that is Congress having failed to make a sufficient choice to put someone in jail.

[01:57:10] Speaker 03:
That would be the tiebreaker for me in that scenario.

[01:57:13] Speaker 03:
If you think they have the best interpretation of it, then they would win.

[01:57:16] Speaker 03:
the best linguistic interpretation, right?

[01:57:19] Speaker 03:
Putting aside the policy questions, the best interpretation of the language.

[01:57:27] Speaker 02:
Okay.

[01:57:30] Speaker 02:
Nels, my colleagues have further questions for you?

[01:57:31] Speaker 02:
No, thank you.

[01:57:33] Speaker 02:
Thank you, counsel.

[01:57:35] Speaker 02:
Thank you to both counsel.

[01:57:36] Speaker 02:
We'll take this case under submission.