Hardin v. Bureau of Alcohol, Tobacco, Firearms and Explosives et al
MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 11/20/2020 - Defendants' motion for judgment on the administrative record (D.N. 29 ) is GRANTED. A separate judgment will be entered this date. Hardin's motion for judgment on the administrative record (D.N. 30 ) is DENIED. (KD)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
SCOTT A. HARDIN,
Civil Action No. 3:19-cv-56-DJH-RSE
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES et al.,
* * * * *
MEMORANDUM OPINION AND ORDER
Following the 2017 tragic mass shooting in Las Vegas, when a shooter armed with bumpstock devices opened fire on an outdoor concert, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) revisited its classification of bump-stock devices under federal firearm laws.
See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,516 (Dec. 26, 2018) (the Rule); (see D.N.
29, PageID # 186) ATF ultimately issued a final rule that classified bump stocks as “machineguns”
and outlawed their continued sale and possession. Id. Plaintiff Scott Hardin, a bump-stock owner
(see D.N. 3, PageID # 59), filed this action challenging the Rule as exceeding ATF’s statutory
authority and violating the Administrative Procedure Act and the Constitution. (Id., PageID # 58)
The parties have filed cross-motions for judgment on the administrative record. (D.N. 29; D.N.
30) For the reasons set forth below, the Court will grant the Defendants’ motion.
Congress regulates firearms through three statutes: The National Firearms Act of 1932,
codified as amended at 26 U.S.C. §§ 5801–72; the Gun Control Act of 1968, Pub. L. No. 90-618,
82 Stat. 1213; and the Firearm Owners Protection Act of 1986, Pub. L. 99-308, 100 Stat. 449. The
NFA operates pursuant to Congress’s taxing authority and imposes a tax on the manufacture and
transfer of firearms as well as registration requirements. See 26 U.S.C. §§ 5801–41. Through the
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GCA, firearm regulation entered the criminal code—among other provisions, the GCA made it a
criminal offense for anyone except for licensed importers, manufacturers, dealers, or collectors to
transport machineguns “except as specifically authorized by the [Attorney General] consistent with
public safety and necessity.” Gun Control Act § 102 (amending 18 U.S.C. § 922). FOPA amended
the GCA to further tighten access to machineguns, making it “unlawful for any person to transfer
or possess a machinegun” not lawfully possessed before FOPA’s enactment. Firearm Owners
Protection Act § 102 (amending 18 U.S.C. § 922). Congress gave the Attorney General the
authority to promulgate rules and regulations necessary to enforce the provisions of the NFA and
GCA. See 26 U.S.C. § 7805(a);1 18 U.S.C. § 926(a). The Attorney General has delegated this
authority to ATF. See 28 C.F.R. § 0.130.
The NFA and the GCA, as amended by FOPA, use the definition of “machinegun” set out
in the NFA: “any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the trigger.”
26 U.S.C. 5845(b). The term “machinegun” also includes “the frame or receiver of any such
weapon” and any part or combination of parts which can convert a firearm into a machinegun. Id.
The statute does not define the terms “automatically” or “single function of the trigger.” Id.
“A ‘bump stock’ is a device that replaces the standard stationary stock of a semiautomatic
rifle—the part of the rifle that typically rests against the shooter’s shoulder—with a non-stationary,
sliding stock that allows the shooter to rapidly increase the rate of fire, approximating that of an
automatic weapon.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1,
NFA provisions still refer to the “Secretary” (of the Treasury) rather than the Attorney General,
but the Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002), transferred
ATF from the Department of the Treasury to the Department of Justice. See Homeland Security
Act § 1111.
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7 (D.C. Cir. 2019), judgment entered, 762 F. App’x 7 (D.C. Cir. 2019), cert. denied, 140 S. Ct.
789 (2020) (Guedes II). Although in 2006 ATF concluded that certain bump-stock devices
qualified as machineguns under the NFA and GCA, between 2008 and 2017 it issued a series of
classification decisions concluding that other bump-stock devices did not qualify because they did
not fire “automatically.” See 83 Fed. Reg at 66,516.
After the Las Vegas shooting, ATF decided to revisit this series of decisions in order to
clarify the meaning of the terms “automatically” and “single function of the trigger,” particularly
as they pertained to bump stocks. Id. On December 26, 2017, ATF published an advance notice
of proposed rulemaking (ANPRM) in the Federal Register. Id. The public comment period for
the ANPRM ran until January 25, 2018, during which time ATF received over 115,000 comments.
Id. On March 29, 2018, ATF published a notice of proposed rulemaking (NPRM) defining the
statutory term “single function of the trigger” to mean “a single pull of the trigger,” and
“automatically” to mean “as a result of a self-acting or self-regulating mechanism that allows the
firing of multiple rounds through a single pull of the trigger.” Id. at 66,517–19. The NPRM also
clarified that under these interpretations, all bump-stock devices would now qualify as
machineguns. Id. at 66,519. ATF received over 186,000 comments in response to the NPRM. Id.
On December 26, 2018, ATF published the final rule, which adopted these definitions and had an
effective date of March 26, 2019. Id. at 66,514. The Rule gave possessors of bump stocks ninety
days during which to destroy or abandon their devices. Id.
“The court’s function in reviewing final agency action following informal rulemaking is
prescribed by the [Administrative Procedure Act]. [The Court] review[s] the administrative
record, appl[ies] the standards set forth in section 706 of the APA, 5 U.S.C. § 706, and must set
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aside agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Simms v. Nat’l Highway Traffic Safety Admin., 45 F.3d 999, 1003 (6th
Cir. 1995) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971)).
“On a motion for judgment on the administrative record, the summary judgment standard
set forth in Rule 56 ‘does not apply because of the limited role of the court in reviewing the
administrative record.’” Vaught v. Fed. Deposit Ins. Corp., No. 3:16-CV-507, 2018 WL 5098531,
at *6 (E.D. Tenn. Apr. 4, 2018) (quoting N.C. Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d
62, 79 (D.D.C. 2007)). The district court must only “determine whether or not as a matter of law
the evidence in the administrative record permitted the agency to make the decision it did.” Id.
(quoting Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006)). “Summary judgment
thus serves as the mechanism for deciding, as a matter of law, whether the agency action is
supported by the administrative record and otherwise consistent with the APA standard of review.”
Id. (quoting Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)).
Hardin argues that ATF exceeded its statutory authority by redefining “machinegun” to
include bump-stock devices. (D.N. 30, PageID #700–01) To address this claim, the Court must
first determine by which standard to assess ATF’s conclusion in light of the statutory definition.
The critical question is whether Chevron deference applies.
Under Chevron’s two-step
framework, courts first “determine whether the statute is ambiguous.” Arangure v. Whitaker, 911
F.3d 333, 337 (6th Cir. 2018). If the statute is unambiguous, the inquiry ends and the court applies
the statute “as-written”; but if it is ambiguous, the court proceeds to step two and “defer[s] to the
agency’s construction if it is ‘permissible’”—i.e., “within the bounds of reasonable interpretation.”
Id. at 337–38 (quoting City of Arlington v. FCC, 569 U.S. 290, 296 (2013)). Absent Chevron
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deference, agency interpretations may “merit some deference” depending on “agency expertise
and the value of uniformity in interpreting . . . the law.” Rhinehimer v. U.S. Bancorp Investments,
Inc., 787 F.3d 797, 809 (6th Cir. 2015) (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)).
The substantial difference between the deference these standards give to agency interpretation
makes the applicability of Chevron highly significant.
“Chevron only applies if ‘Congress delegated authority to the agency generally to make
rules carrying the force of law’ and the agency interpretation was ‘promulgated in the exercise of
that authority.’” Atrium Med. Ctr. v. U.S. Dep’t of Health & Human Servs., 766 F.3d 560, 566
(6th Cir. 2014) (quoting Mead Corp., 533 U.S. at 226–27). Although the parties here have not
thoroughly addressed Chevron’s applicability to the Rule, both assert that it does not apply. Hardin
states that deference is unwarranted because the statutory definition is clear, (see D.N. 30, PageID
# 708); and ATF refers to the Rule as “an interpretive rule” (D.N. 29, PageID # 205–06), which
typically would not receive Chevron review, see Mead Corp., 533 U.S. at 232 (“interpretive
rules . . . enjoy no Chevron status as a class”), and states that “deference to the agency is not
required to resolve this case.” (D.N. 31, PageID # 737)
Although the Sixth Circuit has not analyzed Chevron’s applicability to the Rule,2 the D.C.
Circuit recently addressed this precise issue. Guedes II, 920 F.3d at 17. The plaintiffs in Guedes
It is worth noting that while the Sixth Circuit has not analyzed Chevron’s applicability to the
Rule, a district court in the circuit has. See Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 830
(W.D. Mich. 2019). The court concluded that Chevron applies to the Rule, the terms
“automatically” and “single function of the trigger” render the statutory definition of machinegun
ambiguous, and ATF’s interpretation of the definition deserved deference. Id. at 830–33. The
plaintiffs appealed and filed a motion to stay pending appeal. Gun Owners of Am., Inc. v. Barr,
No. 19-1298, 2019 WL 1395502, at *1 (6th Cir. Mar. 25, 2019). The Sixth Circuit denied the
motion to stay in part because the plaintiffs did not show “the likelihood [that the district court]
abuse[d] [its] discretion.” Id. Following the Sixth Circuit’s denial, the Supreme Court also denied
the stay. Gun Owners of Am., Inc. v. Barr, 139 S. Ct. 1406 (2019).
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challenged ATF’s statutory authority to promulgate the Rule. Id. The parties in Guedes did not
present arguments for applying the Chevron framework, and the court therefore conducted its own
extensive analysis of whether the Rule qualifies for Chevron deference. Id. at 17–21. The court
first concluded, based on the Rule’s effect, the language used by ATF in the Rule, and the Rule’s
publication in the Code of Federal Regulations, that “the Rule confirms . . . in numerous ways, that
it intends to speak with the force of law,” and therefore the Chevron framework applies. Id. at 18–
19. Applying Chevron, the D.C. Circuit found that two components of the statutory definition of
“machinegun”—the phrase “single function of the trigger,” and the word “automatically”—render
the definition ambiguous. Id. at 29. Finally, the D.C. Circuit concluded that ATF had reasonably
interpreted these ambiguous terms and therefore “the [Rule] sets forth a permissible interpretation
of the statute’s ambiguous definition of ‘machinegun’” and consequently merits deference. Id. at
In the absence of contrary precedent from the Sixth Circuit, the Court will follow the D.C.
Circuit’s well-reasoned analysis. Thus, for the reasons identified in Guedes, the Court finds that
Chevron applies to the Rule, the statute is ambiguous, and ATF reasonably interpreted the
definition of “machinegun.” See id. at 17–20, 28–32; see also Gun Owners of Am., 363 F. Supp.
3d at 830–33. ATF therefore did not exceed its statutory authority in promulgating the Rule.
Arbitrary and Capricious Review
“Even if an agency’s statutory interpretation is permissible under Chevron, it may still be
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Atrium,
766 F.3d at 567 (citing 5 U.S.C. § 706(2)(A)). Agency action qualifies as arbitrary or capricious
if “the agency has relied on factors which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its decision that runs
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counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “This is not an invitation for judicial secondguessing . . . [s]o long as the agency ‘examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action,’ [the court] will not set aside its decision.” Ky. Coal Ass’n, Inc. v. Tenn.
Valley Auth., 804 F.3d 799, 801 (6th Cir. 2015) (quoting State Farm, 463 U.S. at 43).
Hardin argues that the Rule is arbitrary and capricious for several reasons. (D.N. 30,
PageID # 696–699). None convince the Court.
Hardin first argues that the fact that bump firing can be produced without a bump-stock
device undermines the validity of the Rule. (D.N. 30, PageID # 698-99) Bump firing “is a
technique that any shooter can perform with training or with everyday items such as a rubber band
or belt loop.” 83 Fed. Reg. at 66,532. According to Hardin, this fact necessarily leads to “one of
only two untenable conclusions”: ATF approves of such techniques, which would undercut the
need to regulate bump stocks at all, or ATF intends to regulate all manipulations that cause bump
firing, which would “lead to the absurd result” of people being charged with illegal machinegun
possession for using a bump-firing technique. (D.N. 30, PageID # 699)
ATF squarely addressed this issue in the Rule, concluding that bump-stock devices “are
objectively different” from other items “designed for a different primary purpose,” which do not
qualify as automatic. 83 Fed. Reg. at 66,533. ATF additionally found bump firing through use of
an everyday item such as a belt loop to be “more difficult than using a bump-stock-type device.”
Id. Finally, ATF noted a “fundamental distinction between skilled shooters and those employing
bump-stock-type devices,” which left skilled shooters “unaffected by the proposed rule”—skilled
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shooters must pull and release the trigger for each shot, whereas bump-stock devices only require
the shooter to pull the trigger to fire the first round, after which the shooter need only maintain
pressure to fire subsequent rounds.
Because ATF “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action,” the Court does not find the Rule to be
arbitrary and capricious on this ground. Ky. Coal Ass’n, 804 F.3d at 801 (alterations in original)
(quoting State Farm, 463 U.S. at 43).
Hardin next argues that “all the known evidence runs directly counter” to the conclusion
that bump stocks qualify as machineguns because “the shooter must still separately pull the trigger
to fire each successive shot.” (D.N. 30, PageID # 698) In support of this claim, Hardin offers an
affidavit from a former ATF employee who asserts that a “bump-stock device requires additional
physical manipulation of the trigger by the shooter . . . [because] the trigger must be released, reset,
and fully pulled rearward before the subsequent round can be fired.” (D.N. 3-1, PageID # 91–92)
Hardin’s emphasis on trigger mechanics is misplaced. In determining that bump stocks
operate with a single pull of the trigger, ATF focused not on the movement of the trigger but on
the action of the shooter in pulling the trigger. See 83 Fed. Reg. at 66,532. Specifically, ATF
concluded that bump stocks enable shooters to discharge multiple rounds by “maintaining the
trigger finger on the device’s extension ledge with constant rearward pressure.” 83 Fed. Reg. at
66,532 (quoting NPRM, 83 Fed. Reg 13442, 13443 (March 29, 2018)). In other words, “[a]lthough
operating a bump stock may cause slight movements of the trigger finger, it does not require a
shooter to consciously and repeatedly exert force to depress the trigger multiple times”; instead,
“[a]fter the initial exertion of force, a shooter is able to discharge multiple rounds by maintaining
constant pressure on the trigger.” Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
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356 F. Supp. 3d 109, 132 (D.D.C.), aff’d, 920 F.3d 1 (D.C. Cir. 2019) (Guedes I). ATF’s focus
on the movement of the shooter’s finger—rather than the trigger’s movement—accords with its
permissible definition of “single function of the trigger” as meaning “single pull of the trigger.”
See supra at part II(A). Hardin’s challenge to the Rule on this ground therefore fails.
Input from Elected Officials
Hardin also suggests that President Trump’s outspoken support of the Rule prior to its
enactment renders the Rule arbitrary and capricious. (D.N. 30, Page ID # 696) The Rule itself
acknowledges the President’s involvement, noting that he “directed the Department of Justice,
working within established legal protocols, ‘to dedicate all available resources to complete the
review of the comments received [in response to the ANPRM], and, as expeditiously as possible,
to propose for notice and comment a rule banning all devices that turn legal weapons into
machineguns.’” 83 Fed. Reg. at 66,516–17 (quoting Application of the Definition of Machinegun
to “Bump Fire” Stocks and Other Similar Devices, 83 Fed. Reg. 7949 (Feb. 20, 2018)).
Additionally, in the wake of the Las Vegas shooting “ATF received correspondence from members
of the United States Congress, as well as nongovernment organizations, requesting that ATF
[re]examine its past classifications.” Id. at 66,516.
Any impact these political forces may have had on the creation of the Rule does not raise
concern. The Supreme Court has held that agency policy change may properly be “spurred by
significant political pressure from Congress.” F.C.C. v. Fox Television Stations, Inc., 556 U.S.
502, 523 (2009). And “[p]residential administrations are elected to make policy.” Guedes II, 920
F.3d at 34. “[A]n agency to which Congress has delegated policy-making responsibilities may,
within the limits of that delegation, properly rely upon the incumbent administration’s views of
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wise policy to inform its judgments.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 865 (1984).
Hardin further asserts that the President’s directive was “without consideration for the legal
authority of ATF to regulate bump-stock devices or the public, including Plaintiffs, being afforded
an unbiased review of their comments.” (D.N. 30, PageID # 696) The record does not support
this claim. Over twenty-five pages, the Rule systematically documents and responds to each
category of public comment received. See Fed. Reg. at 66,519–44. Rather than jumping to a
preordained result as Hardin implies, the agency “articulate[d] a satisfactory explanation for its
actions.” State Farm, 463 U.S. at 43; see also Guedes II, 920 F.3d at 34 (“[T]he administrative
record reflects that the agency kept an open mind throughout the notice-and-comment process and
final formulation of the Rule.”). Absent actual evidence of misconduct, which Hardin does not
provide, the Court “accords the Bureau a ‘presumption of regularity’ in its promulgation of the
Rule.’” Guedes II, 920 F.3d at 34 (quoting Overton Park, 401 U.S. at 415); see also Simms, 45
F.3d at 1003 (“[T]he agency head’s decision is entitled to a presumption of regularity.”).
Change in Policy
When an agency action changes a prior policy, the agency must demonstrate “that the new
policy is permissible under the statute, that there are good reasons for it, and that the agency
believes it to be better, which [a] conscious change of course adequately indicates.” Fox, 556 U.S.
at 515. It must also explain “factual findings that contradict those which underlay its prior policy”
and acknowledge “serious reliance interests.” Id. The Court asks only “whether ‘there are good
reasons for the new policy.’” Ky. Coal, 804 F.3d at 806 (quoting Fox at 515). “Once the agency
has satisfied this obligation, ‘it need not [also] demonstrate to [the Court’s] satisfaction that the
reasons for the new policy are better than the reasons for the old one.’” Id.
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Hardin suggests that ATF’s decision to change course and classify bump stocks as
machineguns was arbitrary and capricious. (D.N. 30, PageID # 684 (“ATF’s abrupt about-face on
this issue . . . inherently wreaks [sic] of agency abuse of discretion, and arbitrary and capricious
conduct.”) But ATF met all the requirements for implementing a change in policy. First, as
previously discussed, ATF has the authority to define these terms and did so reasonably, see supra
at part II(A), making the new definitions “permissible under the statute.” Fox, 556 U.S. at 515.
Second, the Rule acknowledged its change in course, see 83 Fed. Reg. at 66,516, and explained
that ATF found the changes necessary because it believes that the revised definitions best interpret
the statutory text. See id. at 66,521. Finally, ATF assessed reliance interests in its calculation of
the Rule’s costs. See id. at 66,515 (considering, e.g., costs of loss of property and foregone future
production and sales). For these reasons, ATF’s change in policy regarding the classification of
bump stocks was not arbitrary and capricious. See Fox, 556 U.S. at 515; Ky. Coal, 804 F.3d at
Comment Period and Procedural Irregularities
The Gun Control Act requires ninety days’ public notice and the opportunity for hearing
before the Attorney General can prescribe rules and regulations. See 18 U.S.C. § 926(b). ATF
published the NPRM on March 29, 2018, which started the ninety-day clock. See 83 Fed. Reg
13,442. Hardin claims that procedural irregularities invalidated a portion of this ninety-day period
and that ATF therefore did not meet its statutory requirement.
(D.N. 30, PageID # 695)
Specifically, Hardin points to the following facts: an advisory incorrectly indicating that the
comment period was closed appeared on federalregister.gov on the day that ATF published the
NPRM (ATF removed it five days later); and information on federalregister.gov incorrectly
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identified the Rule’s docket number. (D.N. 30, PageID # 693–94) The Rule itself acknowledges
these incidents, although with differences as to some of the details. 83 Fed. Reg. at 66,542.
Even assuming Hardin’s account of the procedural irregularities to be true, these glitches
did not shorten the comment period itself. Commenters who may have been confused by the
incorrect advisory on the federal register website had the option to comment by fax or mail. See
83 Fed. Reg. at 13,442 (explaining how to submit comments by fax or mail). Additionally, despite
the confusion, commenters did actually have the ability to submit electronic comments during the
entire ninety-day period— “a simple search for ‘bump stock’ in the main search bar on
Regulations.gov during this time would have displayed the link for the new NPRM Docket ID,
which was active and accepting comments.” 83 Fed. Reg. at 66,542.
When reviewing agency action, the Court applies the “harmless-error rule,” meaning “a
mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis”
for invalidating agency action. ECM BioFilms, Inc. v. Fed. Trade Comm’n, 851 F.3d 599, 612
(6th Cir. 2017).
Hardin states that the incorrect advisory made it “likely that numerous
individuals . . . were led to believe that they were unable to submit comments in relation to this
rulemaking and were therefore deprived of an opportunity to be heard.” (D.N. 30, PageID# 693)
But Hardin identifies no specific instances of such deprivation, and the evidence in the
administrative record points the other way: ATF did in fact receive “numerous comments from the
very beginning of the comment period.” 83 Fed. Reg. at 66,542; (see D.N. 29-2, PageID # 297–
313) Moreover, Hardin acknowledges that ATF corrected the mistake after five days (D.N. 30,
PageID # 693), meaning that any potentially confused commenters had eighty-five days to return
to the website and try again. Given that ATF received more than 186,000 comments, see 83 Fed.
Reg. at 66,519, including hundreds within the first two days (see D.N. 29-2, PageID # 297–313),
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the Court has no reason to conclude that the technical problems prejudiced commenters. The
harmless-error rule therefore precludes invalidation of the Rule on this ground. See ECM
BioFilms, 851 F.3d at 612.
Hardin argues that the Rule violates the Contracts Clause (D.N. 30, PageID # 706–07),
which provides that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts.”
U.S. Const. art. I, § 10, cl. 1. But “[t]he plain language of the Contracts Clause itself affirms that
it applies only if a state or local law interferes with existing contracts.” United States v. May, 500
F. App’x 458, 465 (6th Cir. 2012). The Rule is a federal regulation. See 83 Fed. Reg. 66,514 .
Because “the Contracts Clause does not apply to the federal government,” Hardin’s Contracts
Clause claim necessarily fails. Id.
Ex Post Facto Clause
The Ex Post Facto Clause provides that “[n]o . . . ex post facto Law shall be passed.” U.S.
Const. art. I, § 9, cl. 3. This ensures that “legislative Acts give fair warning of their effect and
permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S.
24, 28–29 (1981). “To fall within the ex post facto prohibition, a law must be retrospective—that
is, it must apply to events occurring before its enactment.” Lynce v. Mathis, 519 U.S. 433, 441
(1997) (citing Weaver, 450 U.S. at 29).
Hardin claims that the Rule violates the Ex Post Facto Clause because it “shackle[s]
everyone affected by [it].” (D.N. 30, PageID # 705) But this does not establish an ex post facto
violation. The Rule contained a ninety-day delay between its date of publication and its date of
implementation, see 83 Fed. Reg. at 66,514, giving possessors of bump stocks three months to
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destroy or relinquish their devices and thereby come into compliance with the Rule by its effective
date. The Rule therefore “cannot be characterized as retroactive . . . [because] the Rule itself made
clear that the possession of bump stocks would become unlawful only after the effective date.”
Guedes II, 920 F.3d at 35. Hardin’s ex post facto claim therefore fails. See Samuels v. McCurdy,
267 U.S. 188, 193 (1925) (rejecting Ex Post Facto Clause challenge to statute that prohibited the
post-enactment possession of liquor, even when applied to liquor lawfully acquired before the
The Takings Clause of the Fifth Amendment prohibits government seizure of private
property “for public use, without just compensation.” U.S. Const. amend. V. Takings Clause
challenges fall into two categories:
challenges to the public-use requirement and challenges to the just-compensation
requirement. Public-use challenges assert that in effecting the taking, the government
exceeded its permissible scope of authority under the Constitution; the action is invalid
regardless of whether compensation is provided. Just-compensation challenges concede
that the government acted within the scope of its authority and assert that the government
must provide the affected party with “just compensation.”
Wilkins v. Daniels, 744 F.3d 409, 417 (6th Cir. 2014).
Hardin seeks compensation for the loss of his bump stocks (D.N. 30, PageID # 704), so his
claim falls into the second category. But it fails at the threshold, because Hardin does not “concede
that the government acted within the scope of its authority,” Wilkins, 744 F.3d at 417—instead,
Hardin asserts that “ATF has not and evidently cannot put forth legitimate support for [its] core
conclusion” that bump stocks qualify as machineguns. (D.N. 30, PageID # 704) Hardin cannot
challenge the lawfulness of the Rule while simultaneously bringing a Takings Clause claim for
compensation. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (explaining that the
Takings Clause “is designed not to limit the governmental interference with property rights per se,
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but rather to secure compensation in the event of otherwise proper interference amounting to a
taking.”) (quoting First English Evangelical Lutheran Church of Glendale v. Cnty. of Los Angeles,
482 U.S. 304, 315 (1987))).
Hardin argues that “[a]llowing . . . ATF to re-evaluate the definition of ‘machinegun,’ as it
has done in this case, depending on the prevailing political winds, renders Congress’[s] definition
of ‘machinegun’ under the NFA a moving target, and thus by definition, constitutionally vague.”
(D.N. 30, PageID # 708–09) Hardin rests this claim on the assertion that ATF does not have the
statutory authority to redefine “machinegun.” (Id. at PageID # 708) But as discussed above, see
supra at part II(A), ATF does have such authority. Moreover, Hardin’s premise fails: a law is not
made vague simply because it has changed, but only when it “either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.” United States v. Zobel, 696 F.3d 558, 576 (6th Cir. 2012). Hardin
does not argue that the Rule’s definition of “machinegun” or its application to bump stocks is
unclear. Nor could he, as his APA claims rest on disputing the clearly defined terms and
applicability of the Rule. See supra at part II(B). Hardin’s vagueness challenge therefore fails.
Internal Revenue Code Violation
Hardin claims that 26 U.S.C. § 7805 prevents the Rule from being implemented or enforced
against “devices manufactured or assembled before the date of the NPRM publication.” (D.N. 30,
PageID # 702) Section 7805(b) prevents “regulation[s] relating to the internal revenue laws” from
being “appl[ied] to any taxable period ending before the earliest of . . . (A) [t]he date on which
such regulation is filed with the Federal Register . . . (B) [for a] final regulation, the date on which
Case 3:19-cv-00056-DJH-RSE Document 35 Filed 11/20/20 Page 16 of 17 PageID #: 909
any proposed or temporary regulation to which such final regulation relates was filed with the
Federal Register . . . [or] (C) [t]he date on which any notice substantially describing the expected
contents of any temporary, proposed, or final regulation is issued to the public.” 26 U.S.C. §
The statutory language does not support Hardin’s claim. The regulation at issue requires
the destruction or abandonment of all bump-stock devices within ninety days of the publication of
the Rule. 83 Fed. Reg. at 66,514. The regulation plainly “does not apply to any taxable period”
ending before March 29, 2018,3 because the regulation does not apply retroactively. See U.S. v.
Dodson, 519 F.App’x 344, 349 (6th Cir. 2013) (“ATF may retroactively exempt certain weapons
from tax and regulation requirements, [but] it cannot exempt those same weapons from prospective
application of the law.”). “While § 7805 is meant to limit retroactive application of the law to prefiling time periods, it is not meant to exempt pre-filing items (whether manufactured or acquired
before the regulation).” Id. Hardin thus has not shown any violation of § 7805.
Failure to Consider Cost
Hardin argues that “ATF flat out ignored any analysis in relation to a cost impact, as the
proposed rule fails to provide information on how the Government will fulfill its obligation to
compensate affected individuals for the taking.” (D.N. 30, PageID # 695) But as discussed above,
supra at part II(D)(3), the Rule does not violate the Takings Clause, and therefore the agency owes
no compensation. Moreover, although ATF was not required to consider the cost of compensation,
The government argues that the “relevant date is December 26, 2017, the date on which the
Federal Register published the ANPRM,” rather than the date of the Rule’s publication. (D.N. 31,
PageID # 733) The Court need not resolve this issue because Hardin’s claim fails even under the
later date he uses. (See D.N. 30, PageID # 702)
Case 3:19-cv-00056-DJH-RSE Document 35 Filed 11/20/20 Page 17 of 17 PageID #: 910
the agency did in fact do a thorough cost-benefit analysis of the Rule. See 83 Fed Reg. 66515,
66538–39, 66543–44. Hardin’s final claim therefore fails.
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is
ORDERED as follows:
Defendants’ motion for judgment on the administrative record (D.N. 29) is
GRANTED. A separate judgment will be entered this date.
Hardin’s motion for judgment on the administrative record (D.N. 30) is DENIED.
November 20, 2020
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