Trump testing the winds on gun control

[T.Lex]

It seems I have read recently that the SC is starting to push back against that, especially Gorsuch. I guess only time will tell if the courts decide to let this stand or not. Hell, it is still in the discussion phase right now. Maybe they will see the light and change their minds again before the change actually gets implemented.

Ah, right. Two things, kinda in reverse order.

1) This "comment" phase isn't really about discussion. Doesn't really matter how many comments "against" they get, the agency has the power to change the interpretation and promulgate the new rule.

2) Indeed, this agency deference issue has been percolating for awhile.

A pretty readable article from SCOTUSblog:
The roots and limits of Gorsuch?s views on Chevron deference - SCOTUSblog

 

[T.Lex]

Real quick, here is an article about the regulatory process.

The steps to making Trump?s bump stock regulation a reality | TheHill

I'm honestly not sure where they are in the Trump administration process, but I think they'll still need to get the OMB and OIR assessment before going to the final rulemaking. If that's the case, it'll be way more than 90 days before the rule becomes enforceable.

 

[KLB]

Real quick, here is an article about the regulatory process.

The steps to making Trump?s bump stock regulation a reality | TheHill

I'm honestly not sure where they are in the Trump administration process, but I think they'll still need to get the OMB and OIR assessment before going to the final rulemaking. If that's the case, it'll be way more than 90 days before the rule becomes enforceable.

I wonder if they even know.

 

[Hop]

Trump is a fool. I stood in Louisville NRAAM as he touted his pro-2A lying to the crowd. I'm done with him. Let the Dems take control of both houses and impeach him. We'll get Pence if we're lucky. Revolutionary War part 2 if we're not lucky.

Someone please upload some 3D printer files for making these.

 

[KLB]

For all it's worth, I just sent the President and email telling him he lost my vote because of this.

 

[BigRed]

That's a virtuous sentiment, however, it should come with a warning. Each generation since the enlightenment has worked to make the world more peaceful for their kids. And it has been progressively more peaceful, albeit with some bumps. But, without a warning against what a society that only knows peace will do to destroy it, peace gets destroyed eventually, if through nothing else, social entropy.

I'm sure Paine understood.

Read "The Crisis".

 

[jamil]

Yes, the definition of "machine gun" in 26 USC 5845(b) is broad. It has to be. As most (all?) gun owners know, guns are mechanical devices. It is REALLY hard to define mechanical devices, because there's so many ways to build them. Look at all the different version of semi-auto mechanisms out there. What's more, the Administrative 4th Branch of gov't has been around so long that Congress frankly expects the rulemaking to cover up any issues with their broad definitions.

But, the English isn't really hard.



It goes on to talk about the parts, or combination of parts, necessary to achief this "automatically more than one shot without manual reloading, by a single function of the trigger" thing. That's why sears are NFA items. Particularly with HK products, they can be dropped into semi-auto rifles to make them fun. Err... fully auto.

So, do bumpstocks "automatically fire more than one shot without reloading." Well, that's kinda a strange question when applied to semi-autos. I mean, yeah - but as pointed out often - the same effect can be achieved without a full stock. But, for purposes of bumpstocks, I think that answer is "yes."

Then we get to the part about "single function of the trigger." That's the crux, right? How do you define that? With the bumpstocks, they work because the recoil pushes the gun against your finger again. In a way (from what I understand - I've never shot one), you feel like you're only pulling the trigger once. The stock recoils against your finger in a way that creates the additional "finger pulls."

That action - harnessing the recoil - could be considered changing the functioning of the rifle to allow for automatic fire with the single perceived "function of the trigger."

Here's the rule:
https://www.justice.gov/file/1046006/download?utm_medium=email&utm_source=govdelivery

It isn't that hard to read or understand.

Look, I'm not going to defend the definition itself. I think it sucks. But, the agency itself gets to write the rules, then also take the first shot (pardon the pun) at interpreting them.

Here's a link to agency deference standards.
https://www.theregreview.org/2017/11/27/daniel-scrutinizing-deference/

It isn't as easy reading. I can get other links that might be better, if it would be helpful.

It sounds like you think the reinterpretation has a good chance of surviving the courts. I don't think that "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" is all that ambiguous. It's broad, but not ambiguous. Does a firearm equipped with a bumpfire stock shoot automatically more than one shot without manual reloading? Does it shoot more than one round with a single pull of the trigger?

I've not shot an AR with a bump stock installed, but I think I understand the concept well enough to see that you really can't apply that definition to the device. I think if they want these to be NFA, the NFA needs to be amended and go through the process to become law. But, they don't have the votes. So the only way they have to do it is to just change the definition and say the law applies to bump stocks as well, then hope the courts uphold it.

 

[T.Lex]

It sounds like you think the reinterpretation has a good chance of surviving the courts.

I'm sorry - I probably should've been explicit about that: I have no idea.

But, I'm worried.

I'm not going to get into odds or chances or anything. I will talk about variables, of which there are many. Much depends on what the final rule looks like. It depends on who brings the lawsuit and what they argue. It depends on what Trump's DOJ (or Pence's by that time) argues.

The structural problem is that the deck is stacked in favor of the agency interpretation.

I don't think that "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" is all that ambiguous. It's broad, but not ambiguous. Does a firearm equipped with a bumpfire stock shoot automatically more than one shot without manual reloading? Does it shoot more than one round with a single pull of the trigger?

I've not shot an AR with a bump stock installed, but I think I understand the concept well enough to see that you really can't apply that definition to the device. I think if they want these to be NFA, the NFA needs to be amended and go through the process to become law. But, they don't have the votes. So the only way they have to do it is to just change the definition and say the law applies to bump stocks as well, then hope the courts uphold it.

I think that last line is probably the most accurate.

To Sessions' credit, the rule submitted for comment shows their cards. They're making known exactly what they're going to say. (They kinda have to, but sometimes there are ways to keep an ace up the sleeve.) They're going to say that these devices "harness the recoil" to make the trigger "automatically" fire more than one shot. It is using the words of the definition in way that is close, but not quite the same as, what we think was intended.

That's totally not the worst interpretation I've seen, though. Some of the EPA stuff is mind-boggling.

 

[Hop]

You are wrong in how a bump stock works. The stock has a trigger finger rest. When the gun recoils, that finger rest prevents your finger from holding back the trigger. The hammer still gets caught by the disconnector just like in semi-auto mode. The rest only aids in reset. It does absolutely nothing to help pull the trigger. Nothing at all.

 

[Fargo]

I don't see how this is a Chevron Doctrine issue. My understanding is the deference to agency interpretation occurs within the context of interpreting that agency's promulgated regulations. This is an interpretation of a federal statute, not a reg.

 

[jamil]

You are wrong in how a bump stock works. The stock has a trigger finger rest. When the gun recoils, that finger rest prevents your finger from holding back the trigger. The hammer still gets caught by the disconnector just like in semi-auto mode. The rest only aids in reset. It does absolutely nothing to help pull the trigger. Nothing at all.

Not just that, but you have to maintain forward pressure on the gun with your other hand to keep it going, which is very manual. It's using recoil to assist in the rapid fire. But man you'd have to rape the English language to morph it into the written law's definition.

I don't see how this is a Chevron Doctrine issue. My understanding is the deference to agency interpretation occurs within the context of interpreting that agency's promulgated regulations. This is an interpretation of a federal statute, not a reg.

See, this is what I thought. But I wasn't going to argue that point with a lawyer. If the NFA and GCA left the definition up to the regulating agencies, I could see that. But this is pretty blatantly a case of the President ramming it through anyway.

 

[Tombs]

Without a spring a bumpstock can not function without requiring an action of the trigger per shot.

Being that it requires a skill set to achieve, that means it requires specific actions to be done every shot.

I really see no possible way this would hold up in any way if ever taken to court, and I see no way a definition could be created that wouldn't simply ban all semi-automatic firearms.

 

[Fargo]

See, this is what I thought. But I wasn't going to argue that point with a lawyer. If the NFA and GCA left the definition up to the regulating agencies, I could see that. But this is pretty blatantly a case of the President ramming it through anyway.

As I understand it, Chevron would apply if the US code treats the ATF as a regulatory agency, like the EPA etc, rather than a strict enforcement agency. I am not aware of a code provision making it regulatory, but I am certainly no expert on the topic.

Also, since we are talking about the criminal code, rather than civil regulation, there is a pretty good argument that 5th Amendment due process requires the statute to be read in favor of the defendant, i.e. the rule of lenity. I am unaware of the Chevron doctrine being applied in criminal cases, but once again I am no expert on the matter.

 

[Fargo]

My quick and dirty research shows that Chevron is not applicable to criminal statutes, only to civil regulation and administration. The rule of lenity still applies in the criminal context. Judge Sutton of the 6th Circuit has addressed it repeatedly. Carter v. Wells-Bowen Realty, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 23852 (6th Cir. 2013)

The two rules normally operate comfortably in their own spheres. The rule of lenity has no role to play in interpreting humdrum regulatory statutes, which contemplate civil rather than criminal enforcement. And Chevron has no role to play in interpreting ordinary criminal statutes, which are "not administered by any agency but by the courts." Crandon v. United States, 494 U.S. 152, 177, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990) (Scalia, J., concurring in the judgment); see Gonzales v. Oregon, 546 U.S. 243, 264, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006).

and http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf

But Chevron has no role to play in construing criminal statutes. In 227 years and counting, the federal courts have never presumed that, when an ambiguity arises in a criminal statute, the congressional silence signals that Congress wants an executive-branch agency to fill the gap. For all of the theories of Chevron that have filled the U.S. Reports and the Federal Reporter, to say nothing of the law journals, the idea that Chevron is a tool for construing criminal statutes has yet to make an appearance. That is because criminal statutes “are for courts, not for the Government, to construe.” Abramski v. United States. The doctrine does not give the Department of Justice (or for that matter any other federal agency) implied gap-filling authority over ambiguous criminal statutes.
Otherwise, that would leave this distasteful combination: The prosecutor would have the explicit (executive) power to enforce the criminal laws, an implied (legislative) power to fill policy gaps in ambiguous criminal statutes, and an implied (judicial) power to interpret ambiguous criminal laws. And it would permit this aggregation of power in the one area where its division matters most: the removal of citizens from society.
There may be good reason to debate the merits of Chevron today. Compare Philip Hamburger, Is Administrative Law Unlawful? (2014), with Adrian Vermeule, No, 93 Tex. L. Rev. 1547 (2015) (book review). But all can agree that, whatever the connection between ancient royal prerogatives and the like to modern agency law, Chevron has no role to play in the interpretation of criminal statutes.

 

[T.Lex]

My quick and dirty research shows that Chevron is not applicable to criminal statutes, only to civil regulation and administration.

VINELAND FIREWORKS CO INC v. BUREAU OF ALCOHOL TOBACCO FIREARMS EXPLOSIVES | FindLaw

Case involving "willful" violation of fireworks/explosive laws that carry potential criminal liability. 18 USC 842, 844.

We review the Director's decision, which is the final order revoking Vineland's license and denying its renewal application.   See 18 U.S.C. § 843(e)(2).[SUP]7[/SUP]  We review the decision using the judicial standards of review set forth in 5 U.S.C. § 706.   See 18 U.S.C. § 843(e)(2).   To the extent that this appeal challenges the Director's interpretation of the statutory provisions ATF administers, we utilize principles of Chevron deference.   See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
...
Vineland argues that the Director erred in his interpretation of “willful” under 18 U.S.C. § 843(b)(2).   Where, as here, Congress has implicitly delegated powers to an agency, we must give the agency's interpretation deference so long as it is reasonable.   See Chevron, 467 U.S. at 844, 104 S.Ct. 2778.[SUP]12[/SUP]  For the following reasons, we conclude that the Director's interpretation of “willful” under § 843(b)(2) is reasonable.

Conclusion of fn. 12.

Therefore, Chevron deference applies, and we must give the agency's interpretation deference so long as it is a reasonable construction of the statute.   See id. at 844, 104 S.Ct. 2778.

To your point, that is a regulatory case - revocation of a license.

But, Chevron deference has been applied in criminal prosecutions.
(Readable overview.)
http://www.wlf.org/upload/legalstudies/legalopinionletter/062416LOL_Wall.pdf

In fact, one of them - Whitman - is one of the triggers for the re-assessment of Chevron deference.
Whitman v. United States - SCOTUSblog

Scalia and Thomas's dissent from the denial of cert.

This case, a criminal prosecution under §10(b) of the Securities Exchange Act of 1934, 48Stat. 491, as amended, 15 U. S. C. 78j(b), raises a related question: Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement?

The Second Circuit thought it does. It deferred to the Securities and Exchange Commission’s interpretation of §10(b), see United States v. Royer, 549 F. 3d 886, 899 (2008), and on that basis affirmed petitioner Douglas Whitman’s criminal conviction, see 555 Fed. Appx. 98, 107 (2014) (citing Royer, supra, at 899). Its decision tilled no new ground. Other Courts of Appeals have deferred to executive interpretations of a variety of laws that have both criminal and administrative applications. See, e.g., United States v. Flores, 404 F. 3d 320, 326–327 (CA5 2005); United States v. Atandi, 376 F. 3d 1186, 1189 (CA10 2004); NLRB v. Oklahoma Fixture Co., 332 F. 3d 1284, 1286–1287 (CA10 2003); In re Sealed Case, 223 F. 3d 775, 779 (CADC 2000); United States v. Kanchanalak, 192 F. 3d 1037, 1047, and n. 17 (CADC 1999); National Rifle Assn. v. Brady, 914 F. 2d 475, 479, n. 3 (CA4 1990).

Emphasis mine.

It is at least an open issue, with perhaps a circuit split.

It is difficult for me to imagine the DOJ appellate lawyers making a principled stand in favor of the 2A and not raising Chevron deference to this.

 

[T.Lex]

By the way, under 18 USC 924, the penalties for making/possessing a machine gun (922(o)) can be a civil fine rather than a criminal conviction.

 

[Fargo]

VINELAND FIREWORKS CO INC v. BUREAU OF ALCOHOL TOBACCO FIREARMS EXPLOSIVES | FindLaw

Case involving "willful" violation of fireworks/explosive laws that carry potential criminal liability. 18 USC 842, 844.



Conclusion of fn. 12.


To your point, that is a regulatory case - revocation of a license.

But, Chevron deference has been applied in criminal prosecutions.
(Readable overview.)
http://www.wlf.org/upload/legalstudies/legalopinionletter/062416LOL_Wall.pdf

In fact, one of them - Whitman - is one of the triggers for the re-assessment of Chevron deference.
Whitman v. United States - SCOTUSblog

Scalia and Thomas's dissent from the denial of cert.

Emphasis mine.

It is at least an open issue, with perhaps a circuit split.

It is difficult for me to imagine the DOJ appellate lawyers making a principled stand in favor of the 2A and not raising Chevron deference to this.

I don't know, as I say I am no expert in the field of administrative law. However, I still don't see this being a hybrid statute. There is no administrative regulatory scheme present in the criminal statute for possessing a post 1986 machine gun, unlike in tax, immigration, etc. statutes.

 

[Fargo]

The SCOTUS opinion in Abramski appears to explicitly foreclose Chevron under these circumstances. https://supreme.justia.com/cases/federal/us/573/12-1493/opinion3.html

In addition, Abramski briefly notes that until 1995, the ATF took the view that a straw purchaser’s misrepresentation counted as material only if the true buyer could not legally possess a gun. See Brief for Petitioner 7–8; n. 8, supra. We may put aside that ATF has for almost two decades now taken the opposite position, after reflecting on both appellate case law and changes in the statute. See Tr. of Oral Arg. 41; Brady Handgun Violence Prevention Act of 1993, §103, 107Stat. 1541 (codified at 18 U. S. C. §922(t)). The critical point is that criminal laws are for courts, not for the Government, to construe. See, e.g., United States v. Apel, 571 U. S. ___, (2014) (slip op., at 9) (“[W]e have never held that the Government’s reading of a criminal statute is entitled to any deference”). We think ATF’s old position no more relevant than its current one—which is to say, not relevant at all. Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly (as the ATF used to in construing §922(a)(6)), a court has an obligation to correct its error. Here, nothing suggests that Congress—the entity whose voice does matter—limited its prohibition of astraw purchaser’s misrepresentation in the way Abramski proposes.

 

[T.Lex]

That cite to Apel is less than convincing. That was interpreting a bunch of legal opinions and guidelines, not an agency determination.
https://www.supremecourt.gov/opinions/13pdf/12-1038_6jgm.pdf

Apel also relies on the fact that some Executive Branch documents, including the United States Attorneys’ Manual and opinions of the Air Force Judge Advocate General, have said that §1382 requires exclusive possession.

So, apples and oranges.

Plus, while the Abramski majority suggested no deference, the Whitman case - which would have resolved the issue - was denied cert.

Moreover, in looking at the SCOTUS fault lines, Scalia had this to say in dissent in Abramski (joined by Thomas and Alito), 2/3 of whom would've voted for cert in Whitman.

The majority deems this enforcement history "not relevant" because the Government's reading of a criminal statute is not entitled to deference. Ante, at 2274. But the fact that the agency charged with enforcing the Act read it, over a period of roughly 25 years, not to apply to the type of conduct at issue here is powerful evidence that interpreting the Act in that way is natural and reasonable and does not make its requirements "meaningless."

So that's a strange thing to say. No deference, but the agency interpretation is not "meaningless."

And, the last line of your Abramski quote inspires no confidence.

Here, nothing suggests that Congress—the entity whose voice does matter—limited its prohibition of a straw purchaser’s misrepresentation in the way Abramski proposes.

Is there anything in the definition of a machine gun that suggests Congress limited its prohibition to avoid bumpstocks? As "gun guys" we can intuit that "single function" of the trigger means one thing. I'm less convinced that a court would find application of that definition to bumpstocks to be unreasonable. (Pistol grip shotgun definitions come to mind.)

So, I'll ask you - are you worried about a court/court of appeals evaluating whether bumpstocks convert a firearm into a machinegun?

 

[Fargo]

So, I'll ask you - are you worried about a court/court of appeals evaluating whether bumpstocks convert a firearm into a machinegun?

Absolutely, I would foresee a likely circuit split with a maybe on Cert. I don't know which way Kennedy would go, assuming he doesn't retire. I just don't think Chevron is the issue here.

Since confiscation is implicated, standing comes easily which should give it a fast track unlike the usual wait for a,prosecution.