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Old November 3, 2023, 09:02 PM   #1
KyJim
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SCOTUS Accepts Review of Bump Stock Ban

The Supreme Court also granted review on the issue of the bump stock ban. The order granting review is at https://www.supremecourt.gov/orders/...323zr_5if6.pdf

The petition for certiorari is at https://www.supremecourt.gov/DocketP...20petition.pdf

I've never cared for bump stocks myself, but it's nice to see SCOTUS take it up.
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Old November 4, 2023, 02:06 AM   #2
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This one is going to be interesting, on its technical merits. What we are going to see is the emotional argument about what the law is intended to do, vs. the emotionless logic of what the law actually says and doesn't say, along with the rulings from two different administration's ATFs being polar opposites.

One administration ruled the devices non-regulated, and another, after one being used in a mass shooting declared them illegal using, I think, dubious reasoning.

As I see it, we have two basic schools of thought opposing each other.

One is, that if it acts like a machinegun, then it is, and thereby can be regulated or banned.

The other school of thought is, that if it does not operate in the manner specifically prohibited by existing law, then, like it, or not, its not legally a machine gun, and therefore not regulatable or subject to a ban under those laws.

Expect a lot of sensationalist claims (with few actual facts) from the popular press over this one....
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Old November 4, 2023, 05:49 AM   #3
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The question isn't so much about bump stocks themselves. It's about whether or not regulatory agencies can make rules that have the force of law.

This ban was a terrible thing. The President completely bypassed Congress and told law enforcement to decide whether or not something should be legal. They decided it wasn't and classified it as an unregistered machine gun, which means people who didn't comply faced massive prison sentences.

Remember, that's the charge that led to Waco burning.

So, the actual legal question is whether or not the executive branch can do such things. It has much wider implications.
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Old November 4, 2023, 11:52 AM   #4
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The question isn't so much about bump stocks themselves. It's about whether or not regulatory agencies can make rules that have the force of law.
I hope that will be at least part of the focus of the case and the ruling, however I feel that they should also consider how and IF regulatory agencies are allowed to arbitrarily change their rules and definitions every few years with changes in the political climate.

It seems ironic to me that it was the ATF under Obama that ruled bump stocks non-regulatable and the ATF under Trump that declared them to be machine guns.

I think that physical mechanical items should not be reclassified at the whim of whom ever runs the dept.
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Old November 4, 2023, 12:54 PM   #5
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Originally Posted by Tom Servo
The question isn't so much about bump stocks themselves. It's about whether or not regulatory agencies can make rules that have the force of law.
I respectfully disagree. I think it is well-established that regulatory agencies are empowered to adopt regulations that have force of law. It has been happening for decades.

What is at issue here is that the law (the underlying statute) governing "civilian" possession of machine guns explicitly defines a "machine gun" as a firearm that fires more than one round with a single pull of the trigger.

An AR-15 equipped with a bump stock fires a single round with each pull of the trigger. All the bump stock does is allow the user to pull the trigger very rapidly. The fundamental question in this case is whether or not an administrative regulation adopted pursuant to a statute can adopt a definition that differs radically from the definition set forth in the parent statute itself.
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Old November 4, 2023, 02:11 PM   #6
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Originally Posted by Aguila Blanca
I respectfully disagree. I think it is well-established that regulatory agencies are empowered to adopt regulations that have force of law. It has been happening for decades.

What is at issue here is that the law (the underlying statute) governing "civilian" possession of machine guns explicitly defines a "machine gun" as a firearm that fires more than one round with a single pull of the trigger.
That is one of the Cargill issues. The lower court spent a lot of ink on whether the exec was entitled to deference in interpreting the intent of the law and regulating according to that exec interpreted intent. This matters in Cargill because some courts have found the exec entitled to that deference even where it isn't requested.

Yes, it is accepted that an exec agency can promulgate regs that have the force of law, within the limits of the terms of the pertinent legislation. The lower court found that it didn't need to consider whether the exec is entitled to deference because the legislation under which the defendant was prosecuted was clear, didn't offer an ambiguity that invites exec interpretation, and didn't include bump-stocks.

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Originally Posted by 44amp
I hope that will be at least part of the focus of the case and the ruling, however I feel that they should also consider how and IF regulatory agencies are allowed to arbitrarily change their rules and definitions every few years with changes in the political climate.
The court below ruled on the rule of lenity which requires that an ambiguity be resolved in favor of the defendant. Where an exec agency itself has viewed the issue in two different ways, a defendant is entitled to application of the more lenient reading.

Of course, that doctrine isn't confined to bump stocks, but should also apply to the different standards on pistol braces.

Last edited by zukiphile; November 4, 2023 at 07:17 PM.
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Old November 4, 2023, 08:07 PM   #7
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I think it is well-established that regulatory agencies are empowered to adopt regulations that have force of law.
Yep, since the Chevron case in the 1980s. But it looks like they're itching to take another look at that this session.

My guess is they're looking to roll the idea back quite a bit. This case would just reinforce that.
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Old November 4, 2023, 10:44 PM   #8
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The current court has shown a history of looking at precisely what the law says, comparing that to what the Constitution says, and if they differ, ruling the law invalid, and not caring much about public opinion, and particularly what dominates the popular media.

Personally I don't think they will find the NFA invalid (at this time, as the issue before them isn't exactly about the NFA 34) but I don't see it as impossible they might strike down the 1986 Hughes Amendment as an undue and unconstitutional burden on our rights.

One can but hope.

I find it refreshing that this court doesn't seem interested in pandering to anyone, or in ruling so that the status quo continues, and doesn't seem to care what kind of difficulties that creates with the people who are working under the invalid laws, or what changes their rulings will create.

Seems to me they are actually doing their jobs, in the original sense, if something doesn't pass muster, they toss it out, and let the lawmakers and states come up with something else. The fact that upsets some people doesn't seem to stop them, and I think that's actually a good thing.
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Old November 5, 2023, 12:36 AM   #9
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Originally Posted by 44 AMP
Seems to me they are actually doing their jobs, in the original sense, if something doesn't pass muster, they toss it out, and let the lawmakers and states come up with something else. The fact that upsets some people doesn't seem to stop them, and I think that's actually a good thing.
I agree. It's the role of the legislature to write laws, and it's the role of the Supreme Court to ensure that the laws written by the Congress adhere to the Constitution. That's the system our founding fathers set up, and on those rare occasions when it works, I regard that as a good thing.
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Old November 5, 2023, 07:00 AM   #10
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It's the role of the legislature to write laws, and it's the role of the Supreme Court to ensure that the laws written by the Congress adhere to the Constitution.
Good land, that seems straightforward enough...

Former Senator Ben Sasse had a little speech on why the Congress was willing to let the Executive Branch and the alphabet regulatory agencies create and enforce laws. Sasse said it was because they (Congress Critters) didn't have to take responsibility for stuff. Responsibility that might result in some of their voters being mad at them which could theoretically result in them not getting reelected.
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Old November 5, 2023, 07:22 AM   #11
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...let Executive Branch and the alphabet regulatory agencies create and enforce laws.
And that may be coming to an end....
https://www.politico.com/news/2023/1...-case-00121535

Stand by . . . .
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Old November 5, 2023, 11:28 PM   #12
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That right there will be a shake up of all shake ups, a massive earthquake in DC.
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Old November 6, 2023, 10:57 AM   #13
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And that may be coming to an end....
https://www.politico.com/news/2023/1...-case-00121535

Stand by . . . .
From the link:

Quote:
In recent decades, eliminating Chevron deference has become a cause célèbre for conservative legal activists, who view the doctrine as aggrandizing federal bureaucrats over the judges who typically decide the meaning of federal statutes. Backers of the doctrine say agencies have the special expertise necessary to understand the application of highly technical laws in heavily regulated industries.
My view as a layperson is that laws are supposed to be written in ways that can be understood by anyone who reads them. If someone who works in a "heavily regulated" industry is faced with laws that are so complex that a judge can't understand them -- how is a fisherman, who has (or may not even have) only a high school education supposed to understand them?
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Old November 6, 2023, 11:25 AM   #14
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Backers of the doctrine say agencies have the special expertise necessary to understand the application of highly technical laws in heavily regulated industries.
Riiiiight.....
since this is clearly the case, why do we need Congress at all??

There are two key elements involved here, Micromanagement and consistency.

Both Congress AND the regulatory agencies are doing waay too much of the former and not nearly enough of the latter.
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Old November 6, 2023, 03:48 PM   #15
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Backers of the doctrine say agencies have the special expertise necessary to understand the application of highly technical laws in heavily regulated industries.
Then maybe...I know, this sounds bonkers, but stick with me on this. Maybe...just maybe Congress could reach out to these highly people to advise them before they draft and pass legislation.

I know, I know. It's nutty, right?
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Old November 6, 2023, 04:02 PM   #16
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Maybe...just maybe Congress could reach out to these highly people to advise them before they draft and pass legislation.
Good Land!!! It just might be crazy enough to work!!!
Certainly nobody would see it coming!

I'm reminded by some legislation passed by my own Senator Amy Klobuchar who passed some legislation banning lead in children's toys. Who could object to that right? (The law was to stop some Chinese imported toys that were painted with lead paint and kids would possibly chew on them and get lead poisoning.)

What did the regulatory agency that was overseeing enforcement of the law do? They banned the sale of the little kiddie snowmobiles because there was a lead-acid battery that powered the electric start.
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Old November 7, 2023, 12:33 AM   #17
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They banned the sale of the little kiddie snowmobiles because there was a lead-acid battery that powered the electric start.
I recall a case from some years back, involving either a dirt bike or quad off road rig, where the govt agency was arguing (suing?) against their sale, because, while they seemed ok with the lead-acid battery, they were against the lead paint on the vehicle frame, because they were worried about children chewing on the paint and getting lead poisoning from that.

Mind you, you couldn't legally own or drive one unless you were 16 or older....

So, I'm guessing toddlers gnawing on the bike frames probably didn't happen often....but by gosh our regulators will ban the sale, just so we are safe...

Call it "mission creep" or what it is, bureaucratic overreach, creating regulations and situations that go beyond what the law actually prohibits because the "regulatory agency knows best" (and in more detail than the people who wrote and passed the law) is not in our best interests.

IF a given law does not sufficiently protect the public, then it is CONGRESS's responsibility to change the law. NOT some unelected agency bureaucrats writing (and enforcing) agency regulations.

Now with bump fire stocks, we have a bit of a unique and ironic situation. Examined and ruled on by an administration not noted for being friendly to gun owners rights, and found to not be a regulated item, then, a few years later, a different administration, one claiming to be "gun rights friendly" literally throws bump stocks under the (regulatory) bus and runs over them declaring them to be "machine guns" and therefore both regulated and not allowable for the general public to own. Because they had been criminally misused in a horrific mass murder event.

Now, the ATF has a long history of making rulings on items and later changing their ruling altering the legal status of certain items. SO, this is also a complicating factor, introducing not only did the agency have the legal authority to make the decision, but ALSO IF that decision was a correct one.

It appears that the administration needed something to placate the critics and decided banning bump stocks would be it.

If that turns out to actually be the case, and the decision was based entirely on appeasing the political critics of the administration, by reversing an earlier administration's ruling for political points, is that something we should support? (providing it is actually legal??)

SCOTUS will look at what it looks at, and rule as they see fit. What will be interesting to see is what the public (and govt) take away from the ruling will be.
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Old November 7, 2023, 06:37 AM   #18
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Again... the Chevron Deference issue is of even wider import now in SCOTUS review.
It could upset the whole applecart across the entire 'Agency' paradigm writ large.
(... if they dare)

Film at Eleven, but I suspect a layered ruling that leaves most elements in place, else it
could sweep everything that has evolved in Exec functioning down in pieces off the board
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Old November 7, 2023, 09:59 AM   #19
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Originally Posted by mehavey
Again... the Chevron Deference issue is of even wider import now in SCOTUS review.
It could upset the whole applecart across the entire 'Agency' paradigm writ large.
(... if they dare)
This may just be a difference of perspective, or no real difference at all. I don't see burning chevron deference to the ground as a landmark advancement for the cause of limited government. The idea that an executive should have the power to both legislate (a legislative function) and then construe those regulations in a manner least favorable to the individual (a judicial function) is orwellian.

The sprawling administrative executive can and will still exist in the absence of chevron deference, it just would need to act according to the regs it properly promulgates. That's still quite a distance from a more radical approach of requiring Congress to enact all federal laws and not permitting it to delegate any of that function to the exec.

The posture on this case may not be ideal since Garland strategically hasn't invoked agency interpretive authority explicitly. I think he invokes it implicitly by arguing application of a more restrictive standard than the one set out by Congress.
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Old November 7, 2023, 04:08 PM   #20
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I think he invokes it implicitly by arguing application of a more restrictive standard than the one set out by Congress.
isn't this the root issue?? Whether or not any Executive branch agency has the legal authority to create and apply a more restrictive standard than the one set out by Congress???
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Old November 8, 2023, 01:33 PM   #21
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44 AMP, I think that is one of the issues presented.

There's a broad issue about what an agent of the exec can do with regulation, and part of that is how a court will address challenges to regs or agent's action.

There's an issue of whether a reg is faithful to the legislation, whether a court will look to the text of the legislation or divine a wider intent that the agent is allowed to pursue through regs, and whether we as individuals are bound by whatever the agent thinks that day or whether the agent is bound by his own prior interpretations (lenity).

The court could address some of those without engaging on the others.
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Old November 8, 2023, 01:51 PM   #22
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There is, for me, also a matter of trust, and consistency involved in these matters.

In particular, the basic point of the govt saying "this is not illegal under existing law", and then turning around and saying the same thing IS illegal under existing law, and the existing law has not been changed, I have issues with trust when they do that.

They're STILL doing it right now, with pistol stocks (and other things not just gun things).

A horse is not a camel, and witches are not made of wood just because a regulator says they are.

The High Court will rule on those points they consider relevant in the case before them. The rest of the country will adopt the ruling, and expand on it, or ignore as much of it as they think they can get away with. This is, sadly, the way people behave.
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Old November 8, 2023, 04:44 PM   #23
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There is, for me, also a matter of trust, and consistency involved in these matters.
Trust is the other side of one kind of authority. I invest the old dictionary on my shelf with greater authority than an online source that may have been revised recently; I trust it more to reflect normal use. Perhaps the greatest authority one can have is to be trusted.

There is a different kind of authority that rests not on trust, but power. That stock we said was fine even if you put it to your shoulder? We have a different opinion today, so choke on it. That's a position that can gain compliance in the face of punishment, but destroys trust.

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