Trump Overturns Obama-Era Law: Bans All Bump Stock Devices

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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

In related news, SCOTUS is going to continue deferring to the Administrative State's whims...
The U.S. Supreme Court has refused to overturn a decision that gives power to federal agencies to interpret their own regulations.

In a decision by Justice Elena Kagan on Wednesday, the Supreme Court refused to overturn the 1997 decision that established so-called Auer deference. Kagan emphasized, however, that the principle has its limits.

Chief Justice John G. Roberts Jr. supplied a critical fifth vote for sections of Kagan’s opinion upholding precedent and outlining limits on Auer deference. Joining Kagan’s opinion in full were Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Auer deference was established in the 1997 decision Auer v. Robbins, which held that courts should defer to an agency’s reasonable interpretation of its own ambiguous regulation.

“Auer deference retains an important role in construing agency regulations,” Kagan wrote. “But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations.”

Justice Neil M. Gorsuch said Kagan’s opinion had imposed so many limits on Auer deference that “the doctrine emerges maimed and enfeebled—in truth, zombified.” He and three conservative justices who joined his opinion all or in part would have overturned the Auer decision altogether.

The petitioner in the case before the court is James Kisor, a Marine veteran seeking disability benefits for his post-traumatic stress disorder. The Department of Veterans Affairs agreed that Kisor has PTSD, but it refused to grant retroactive benefits based on its interpretation of the term relevant in agency regulations on late appeals of denied claims.
Roberts strikes again!

So when BATFEZQ upholds that a piece of plastic is a machine gun....SCOTUS will dutifully nod...
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

Congress has not prohibited bump stocks, but the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has made them illegal with a Final Rule issued without statutory authority. In a noteworthy development, ATF’s latest court filing admits that it lacked rulemaking authority under the Gun Control Act and National Firearms Act to issue a legislative rule. ATF thus now agrees with NCLA that the district court below was wrong on this point of law.

The New Civil Liberties Alliance has filed a brief on behalf of client Clark Aposhian, asking the U.S. Court of Appeals for the Tenth Circuit to reject ATF’s remaining defenses of the Final Rule, restore Mr. Aposhian’s constitutional rights, and grant him a preliminary injunction to possess his lawfully acquired property. Specifically, NCLA argues that ATF’s interpretation is not the best reading of the statute and that the Court of Appeals cannot properly invoke the Chevron judicial deference doctrine to defer to ATF’s interpretation.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

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"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by WhyNot »

Ahhh yes

From within the linked article (thnx BNFLN!) 2 groups cited are FPC and GOA

I am SO GLAD I am a member of both organizations, donated $$ etc.
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

In fact, right after that “admission,” the ATF continues that “Congress has provided a detailed definition of the term ‘machinegun.'” Basically: the ATF’s [absurd] argument is that the statute’s “best interpretation” includes bump stocks, and thus is not ambiguous, and thus there is no “gap” to fill, and no need to engage in Chevron deference.

NCLA’s view, which I agree with, is the opposite. That this is a “legislative rulemaking,” and the ATF, in banning bump stocks, did something beyond the wording of the statute akin to creating a new law. So, yes, the ATF’s admission that it can’t wholesale write new law is helpful. The only issue is that the ATF’s entire argument is predicated on the rulemaking being anything but that. So it is in no way the ATF ceding a lack of authority.

In short: The ATF is saying “We can’t do X. What we did was Y,” while NCLA and many lawyers, including myself, are arguing that what they did was in fact X.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

As for this claim… read the filing for yourself. What the federal attorneys said was, We did not arrogate Congressional power to legislate. We used our Congressionally delegated power to interpret the NFA’s language to establish rules; the ‘power to fill up the details’.

Please stop passing NCLA’s mischaracterization around.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

GOA
@GunOwners
26m26 minutes ago

Less than 600 of an estimated 500,000 bump stocks were turned in to federal authorities.

What makes anti-gunners think that Americans would be so quick to give up their guns?
Image
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

Firearms Policy Coalition
‏ @gunpolicy

Yesterday, Democrat @PAAttorneyGen @JoshShapiroPA declared that pieces of metal and plastic are firearms—like Republican @realDonaldTrump declared that pieces of plastic were machineguns.
In an effort to combat “ghost guns” in Pennsylvania, state authorities on Monday said they had advised the State Police that the partially assembled guns known as “80% receivers” should be treated as firearms.

At a news conference in Harrisburg, Attorney General Josh Shapiro, standing with Gov. Tom Wolf, said he issued a legal opinion Monday to the State Police to clarify that 80% receivers should be considered firearms when it comes to enforcing state laws on illegal firearms possession.

“My office is taking the initial step of clarifying — through my official, legal opinion — that under Pennsylvania law, 80% receivers are firearms and can be treated, regulated, and enforced as such,” Shapiro said during the news conference, held in the Governor’s Reception Room at the state Capitol and live-streamed online. “The proliferation of these untraceable weapons strikes at the heart of our public safety, hindering law enforcement’s ability to protect our communities. Today we take the first step in addressing this problem.”

Ghost guns are homemade, 3D-printed, or partially assembled firearms sold with the parts needed to create a fully operational gun. They don’t have serial numbers and thus are untraceable by law enforcement.
There's the bipartisanship we always get...the GOP adopting the Dem stance...
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by WhyNot »

Ahhh yes. The good ol FPC.

So glad I am a member

And oh yes of course.... OFCC :wink:
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

According to Amy Howe of SCOTUSblog, Justice Neil Gorsuch addressed the Chevron deference argument in a statement.

#SCOTUS denies review in Guedes v. BATF, challenge to “bump-stock rule”; Gorsuch has statement indicating that Chevron “has nothing to say about the proper interpretation of the law before us,” but agreeing that this “interlocutory petition” does not merit review.

— Amy Howe (@AHoweBlogger) March 2, 2020

If you’re a non-lawyer like me, you probably had to look up the phrase “interlocutory petition” to find out exactly what Gorsuch meant. Gorsuch was arguing that the matter could still be reviewed in future cases even if the court decided not to hear this case, and in fact there are other challenges to the BAFTE’s bump stock ban still in the lower courts.

SNIP

Here’s the text of Gorsuch’s statement, which does indeed indicate he thinks the issue of whether or not the BAFTE had the authority to ban bump stocks is still very much an open question. Read the whole thing, but here’s the most pertinent part of his statement.

The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.
TrumpStock ban LIVES!

Please remember that only FOUR judges need to agree to hear a case to put it on the docket...at the moment, we think of SCOTUS as 5-4 good guys! We can't even get 4 of 5 good guys to put this on the table.

ALL of this, as 80% lowers are causing a debate on the definition of "firearms", but this piece of plastic is definitely a machinegun, ya'all.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

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"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by lionsfan »

I'm not so sure it's really a good time to take bump stocks to the Supreme Court. I don't trust Roberts one bit.
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by High Power »

lionsfan wrote:I'm not so sure it's really a good time to take bump stocks to the Supreme Court. I don't trust Roberts one bit.
That is exactly my thought. It could be that the four conservative Justices; Alito, Gorsuch, Kavanaugh and Thomas would really like to overturn the ban but are worried about Roberts stabbing conservatives in the back again.

Maybe they, like the rest of us, are waiting for RBG to expire. Then, and if, they get a conservative pro-gun member on the court, they would vote to hear the case.

Now let's flip that thought around for a second. If the four leftist Justices, Beyer, Ginsburg, Kagan and Sotomayor thought they had a good chance of upholding the ban they would have voted for a writ of certiorari. They might worry about Roberts siding with the conservative wing of the court.

Like the rest of the leftists in this country, they are hoping that RBG stays alive long enough and IF Trump is defeated this fall, they get another leftist judge on the bench. However, that still would not quell their fears of Roberts siding with the conservative wing.

Those leftist Justices know, in their own minds, that the bump stock ban is wrong. If the arguments before them are too compelling, then Roberts could side with the conservtives.
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by schmieg »

What Goresuch' statement indicates is that the decree being appealed is not a final judgment. Generally only final judgments are ripe for appeal and the parties must wait until the lower case is completed before appealing. It is procedure to prevent appellate courts from jumping the gun before the final decision which may ultimately be different from the interlocutory decree or provide additional grounds for appeal.
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by High Power »

schmieg wrote:What Goresuch' statement indicates is that the decree being appealed is not a final judgment. Generally only final judgments are ripe for appeal and the parties must wait until the lower case is completed before appealing. It is procedure to prevent appellate courts from jumping the gun before the final decision which may ultimately be different from the interlocutory decree or provide additional grounds for appeal.
That's true but Gorsuch could have merely said that they would not hear the case because it was not a final appeal-able order. He went far beyond that and also let the lower courts know what some of the justices may be thinking.
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

Firearms Policy Coalition
@gunpolicy
Everyone else (re: social media platforms/Section 230): “But the President can’t just re-write the law by executive order!”

Us: Remember that bumpstock ban?
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

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"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: Trump Overturns Obama-Era Law: Bans All Bump Stock Devic

Post by bignflnut »

If you haven't been gaslight-ed enough over the last few months...this from ammoland.com..
Do you believe that Obama’s ATF was so benevolently Pro-Second Amendment that it approved bump stocks without an underlying anti-gun political purpose for doing so?

Bump stocks were part of the Obama/Biden/Holder/Clinton/Democrat plan to ban all magazine-fed semi-automatic firearms. A goal that now presidential candidate, Joe Biden. still wants to see imposed on honest gun owners.

SNIP

Bump stocks were the Obama Administration’s last attempt to abolish our Second Amendment Rights. They believed that Hillary Clinton was going to win. After nightly newscasts showing semi-automatics rapidly firing with bump stocks, a sweeping semi-automatic ban could be implemented. Thereby, they would employ Sugarmann’s original approach of “confusion,” only better. They would confuse and scare the public about “machineguns” and obtain a full ban on semi-automatic firearms.
President Trump thwarted their plan. First, by winning in 2016, and second by surgically removing the bump stock strawman as a threat to our 2nd Amendment Rights.
SEE? Our Champion saved us by cutting us! Surgical 14D Chess Master! (*swoon*)

This Thanksgiving, before you pass the ammo box, give thanks that this amazing man banned inanimate plastic so that we could all be saved from the mighty Obama who could no longer hurt us. Then be thankful for all the work he did to get BIG10 football back (he's worked more on that than RKBA)!
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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