Earlier this year a three-judge panel in the Sixth Circuit Court of Appeals ruled that the Trump administration’s move to ban bump stocks through the ATF’s rule-making authority violated the Constitution, but the entire Sixth Circuit is now re-hearing the case en banc. This week, a coalition of 18 Republican Attorneys General filed an amicus brief in the ongoing court case, arguing that the original Sixth Circuit decision got it right and that the ATF rule requiring existing bump stock owners to either hand them over to the government or destroy them contravenes federal law.

As Montana Attorney General Austin Knudsen, who led the coalition, says, the case could have far reaching implications beyond the bump stock ban itself.

“Montanans’ right to keep and bear arms is under attack from the Biden administration. Their continued attempts to implement the bump stock ban is no exception,” Attorney General Knudsen said. “The panel in this case came to the only logical conclusion – the ATF is trying to create laws where none exist. The full court should uphold their commonsense ruling.”

Through its rulemaking, the ATF overreached and attempted to regulate bump stock accessories by asserting they transform the firearms they are attached to into “machineguns” as defined by the National Firearms Act of 1934 (NFA).

“The ATF’s Final Rule effectively transforms commonly owned firearms into banned machineguns simply because of the use of non-mechanical bump stock accessories.  This interpretation categorically expands the text of the criminal statute in a way that Congress couldn’t possibly have intended,” the brief states. “But it also expands criminal liability at the expense of Second Amendment rights, diminishing the latter absent a sufficient and compelling justification.  Surely the federal agency tasked with regulating Second Amendment rights should read its enforcement statutes narrowly.  But when the ATF—or any agency—invades protected rights by interpreting statutes too broadly, ‘a court has an obligation to correct its error.’”

Knudsen argues that the government agencies may have the power to create new rules, they don’t have the authority to create new laws all on their own. Given the fact that the Biden administration is currently floating two proposed ATF rules that would re-define its regulations in order to impose bans on unserialized homemade firearms and AR-style pistols equipped with stabilizing braces, the Attorney General says that its up to the courts to provide a check on the executive branch overreach.

“While Congress sometimes delegates authority to federal agencies to fill in gaps or lend expertise in complicated matters, these agencies are not permitted to use their limited policymaking authority to invent new law – particularly when their decisions impose criminal penalties and implicated fundamental constitutional rights,” the brief stated. “Agencies’ sweeping statutory re-interpretations should always arouse judicial suspicion, but capricious course changes that criminalize previously lawful and constitutionally protected behavior should have to endure the cold light of judicial scrutiny.”

Besides Knudsen, the Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming AGs have all signed on to the brief.

The Trump administration’s decision to pursue a bump stock ban via regulatory action was incredibly controversial among Second Amendment activists at the time, and Gun Owners of America launched the lawsuit that’s currently in the Sixth Circuit as a response. Similar challenges to the ATF rule have been upheld by other circuits, and in March of last year the Supreme Court turned away a lawsuit brought by the Firearms Policy Coalition. Whether or not SCOTUS is willing to revisit the issue now that Justice Amy Coney Barrett is on the bench is very much an open question, but first we need to see what the en banc panel of the Sixth Circuit ultimately concludes. If the court upholds the original decision by the three-judge panel, it could set up a split in the circuits, increasing the chances that the Supreme Court will weigh in. Fingers crossed that the Sixth Circuit gets it right, because if it doesn’t the Biden administration will in essence be given the green light to use the bump stock precedent for their own regulatory gun ban schemes.