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Page 38, bump stocks are banned

WHITE, Circuit Judge, dissenting. I respectfully disagree with the majority’s conclusion that Chevron never applies to laws with criminal applications. The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O’Hagan1—and has never purported to overrule those cases. Although comments in subsequent decisions may create tension with these cases, they remain binding. Thus, I would apply Chevron. And because the statutory phrase here is ambiguous and the ATF’s interpretation of that phrase is reasonable, it is entitled to deference under Chevron. I. Chevron Applies Chevron applies here. First, the ATF’s Bump-Stock Rule is the type of “legislative” rule that usually triggers Chevron’s two-step framework. Second, that framework is not waivable. Third, the framework applies even though the rule carries criminal consequences. And fourth, the majority’s normative arguments to the contrary are not persuasive. A. The ATF’s Rule is “Legislative”