A recent Supreme Court decision on administrative law has implications for those concerned about the right to keep and bear arms. Yes, administrative law sounds about as boring as….well, words fail me….administrative law, but believe me, you’d better pay attention to it because the rules that agencies like the BATFE promulgate can have a serious impact on the kinds of firearms and ammunition that are available for purchase. The Supreme Court ruled that administrative agencies do not need to issue a notice and allow a 30-day period for comments from the general public if all they’re doing is changing an “interpretive” rule . . .

What does that mean? Well, the blog at Venable LLP does a decent job of defining an ‘interpretive’ rule:

“[I]nterpretive rules” (including guidance documents, agency manuals, and interpretative bulletins)…explain how the legislative rules will be applied and to resolve ambiguities in the meaning of those rules. Interpretive rules technically do not have the force and effect of law, and thus can be issued without public notice and comment. But agencies can and do apply these “interpretations” as if they are binding. Regulated companies have long complained that agencies use the “interpretive rule” pathway to change the meaning of their legislative rules without going through the required procedures. To curb this abuse of agency authority, in Paralyzed Veterans v. of Am. v. D.C. Arena L.P., the D.C. Circuit held that an agency may not significantly revise a prior, definitive interpretation of its legislative rules without going through the notice and comment process.

This differs from a substantive rule, which (as SCOTUSBlog states,) “binds” the public and has the “force and effect” of law.

If it seems to you that the distinction between a rule that “interprets” and a rule that “binds” parties is largely academic, you may be right, as can be seen in the case that was before the Supreme Court, Perez v. Mortgage Bankers Association.

In this case, the Department of Labor had issued a new substantive rule stating that overtime must be given to any employee “whose primary duty is selling financial products,” following the usual notice-and-comment procedure while doing so. Two years later, the DoL issued an interpretive rule, which said that mortgage loan officers were not responsible for selling financial products, and therefore were exempt from overtime requirements. A few years after that, it reversed itself, changing its interpretive rule, which now said, no, mortgage loan officers were NOT exempt from overtime.

In issuing the last rule change, however, the DoL did not follow the notice-and-comment procedure. The Mortgage Bankers Association (an organization that, I guess, is more dedicated to protecting the interests of banks, and not mortgage loan officers,) filed suit, claiming that since the notice-and-comment procedure was not followed, the re-interpretation of the overtime rule was invalid, and thus, mortgage loan officers should still be exempt from overtime requirements.

The Supreme Court disagreed, unanimously striking down the Paralyzed Veterans doctrine. The Court held that federal law does not require notice-and-comment for interpretive rules.

Okay, but why does this matter to gun owners? Remember that whole business we just went through involving the attempt by the BATFE to ban M855 and SS109 ammunition? The notice posted by the ATF and the 30-day comment period that followed allowed plenty of time for a hue and cry to be raised by the gun rights community (including many who read TTAG.) This was arguably a change of an interpretive rule — i.e., the BATFE was not making a new substantive rule, it was simply changing its interpretation as to whether a specific type and caliber of ammunition should be considered to be “rifle” or “pistol” ammunition.

In the Brave New World after Perez, it doesn’t look like they’ll need to bother with a notice and comment period for such changes going forward. If they want, they can simply put the new rule into effect. Given our recent experience, that’s a little unsettling.

That said, it might not be all dark clouds on the horizon. As the Venable blog points out:

The suggestion by Justices Alito, Scalia, and Thomas that federal courts should stop the practice of deferring to agency interpretations of their rules, and reclaim for themselves the power to decide whether a regulation means what the agency says it means, likely will trigger a wave of litigation that, if successful, could force important changes in the way agencies draft rules.

If this case also signals a new attitude on the part of the Court to be less deferential toward substantive rulemaking on the part of administrative agencies, well, that will probably be a good thing, on balance. There’s always the chance that Congress might be able to enact a legislative remedy if the BATFE goes too far and refuses to back down next time — depending on who succeeds the current President, that is.

(Let’s also not forget that a groundswell of outrage in the general public and Congress can force an Agency to back down, as recently happened.)

Still, that’s for the long term. In the meantime, we will have to deal with the law as it is right now. If the BATFE were to start promulgating a few petty rules designed to harass gun owners and manufacturers, it will take time, money, and effort to oppose them. Note, too, that the money and effort will be almost exclusively expended by the gun rights side in opposing it, since the people defending the rule will have their legal fees paid for by the taxpayers.

I could see an aggressive administration pushing the BATFE to enforce a series of petty rules like the M855 ban that skate on the edge of what was authorized by statute. That would force gun rights groups to choose between accepting the rule or expending effort and money opposing them, hoping to exhaust them before delivering a coup de grace like Bane versus Batman.

DISCLAIMER: The above is an opinion piece, and is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice on this subject, you are strongly urged to hire and consult your own counsel.

42 Responses to Supreme Court Administrative Law Ruling has Far-Reaching Implications for Gun Owners

  1. I deal with Administrative Law every day in my profession. With admin law, you have virtually no Constitutional protections and legal recourse is long and expensive. Further, even if you win a legal case, because there are 2 – 6 different admin laws that cover almost every aspect of my profession, the Administrator can just violate you for the same offense by using a different statute and then the long, expensive legal process would have to begin again. Most people probably break at least 1 or 2 (probably more) admin statutes in their every day life and don’t even realize it.

    • “Further, even if you win a legal case, because there are 2 – 6 different admin laws that cover almost every aspect of my profession, the Administrator can just violate you for the same offense by using a different statute and then the long, expensive legal process would have to begin again. ”

      Phew.

      Good thing no one would *ever* abuse that to violate civil rights or downright harass the citizens of the formerly-free United States…

      (That’s just dripping with sarcasm and contempt, BTW…)

  2. The ATF is a rabid zombie that needs to be put down, for good , with H.R. 1329 by Rep. Sensenbrenner. In the shorter term H.R. 1130 , Rooney- with improved language , must get a vote to preserve current ammunition from ‘ color of law ‘ overreach . Keep CALLING and E – Mailing representatives and Senators. Keep Loretta Lynch out as Holders replacement.

  3. It is time to eliminate many of the regulatory agencies. The ATF isn’t the only problem.

    I plan on voting for candidates that support deregulation by any means necessary (de-funding agencies and departments, direct deregulation legislation, etc.).

    I hope others do the same.

    • Will be interesting if any of the R candidates for POTUS will make a major issue about the vise that the country is in by over regulation. They could easily talk about a different horror story every day that the average citizen could relate to.

      Unfortunately the only candidate that has been highlighting this issue has a crazy dad in the shed out back.

  4. the BATFE was not making a new substantive rule, it was simply changing its interpretation as to whether a specific type and caliber of ammunition should be considered to be “rifle” or “pistol” ammunition.

    The BATFE wasn’t interpreting the law but rather blatantly ignoring very clear requirements written in black and white. Don’t see how there is anything for the ATF to hang their hat on in this particular instance. They clearly got caught with their hand was in the cookie jar.

    • The SCOTUS decisions on administrative law are terrible and give BATFE broad deference, even when they are blatantly wrong in their interpretations. See:

      Chevron USA v. Natural Resources Defense Council (467 US 837, 1984)

      Barnhart v. Walton (535 US 212, 2002)

      We are in real trouble unless the regulatory process is brought back to rationality by legislative action.

    • Many don’t quite grasp the significance of Sotomayor and Kagan getting appointed and confirmed to SCOTUS. Both were activist judges and Kagan flat didn’t like The Constitutional constraints.

      • “Many don’t quite grasp the significance of Sotomayor and Kagan getting appointed and confirmed to SCOTUS.”

        Oh, yes. That’s why the next president is critical, as there may be 2 or more vacancies in the next administration…

      • The ruling was unanimous, Kagan and Bater weren’t the tie breakers or anything. Government voted to give itself more power with no need to answer to the citizenry. Imagine that.

  5. Who was that other administrator who used “administrative rules” in a way that proved to have unforeseen consequences? I think his name was…. Pontius Pilate

  6. Yep, there goes the government just screwing us over.

    Again.

    Still.

    More.

    Just as it always does. Just as it always has. Just as it always will. Just as it was design to do, exclusively, from top-to-bottom.

  7. It’s a small victory in what will prove to be a losing battle to protect the Second Amendment, which is allegedly supposed to protect us.

    Think about it: Although the Second Amendment is one of the few components in the Constitution that’s close to being biblical, the late 18th-century founders robbed bearing arms in defense of ourselves, families, and others of its potency when they replaced the God-expected responsibility with the optional Enlightenment right. The result: Except for a few “victories” like the one described in this article, the Second Amendment is the MOST infringed, licensed, and limited Amendment of the entire twenty seven.

    Furthermore, a future generation of our posterity is likely to see the Second Amendment whittled away entirely or repealed altogether. This is the inherent nature and danger of optional Enlightenment rights (easily controlled by government) versus non-optional, Biblical responsibilities, such as the following:

    “But if any provide not for his own, and specially for those of his own house [beginning with spiritual and physical protection], he hath denied the faith, and is worse than an infidel.” (1 Timothy 5:8)

    For more, listen to “The Second Amendment: A Knife in a Gunfight.” Click on my name, then our website. This presentation will be found about halfway down our home page at our “Featured Messages.”

    If you prefer to read, see our blog article “The Second Amendment is Doomed.”

    • @Ted R. Weiland –
      I’m not Christian, so the Bible has no relevance to me, or any other non-Christian. A religious based law or ruling has no place in the U.S. We are a secular nation, and some of the Founders were deists, BUT the Magna Carta, the philosophy of John Locke and others, the government design of the Iroquois Nation, and other influences were at least equally responsible for realization that certain rights are inherent to MAN, regardless of creed, race, gender, or anything else. Leave religion out of government; since otherwise it never ends well.

      • Joe, I’ll leave my religion out when you and others like you leave your religion of secular humanism out.

        The fact is, it’s impossible for religion to be left out of government. Someone’s collective morality (or more often than not, immorality) that reflects a collective religion is always being enforced by government. The same is true when it comes to theocracies:

        “…”…There is no escaping theocracy. A government’s laws reflect its morality, and the source of that morality (or, more often than not, immorality) is its god. It is never a question of theocracy or no theocracy, but whose theocracy. The American people, by way of their elected officials, are the source of the Constitutional Republic’s laws. Therefore, the Constitutional Republic’s god is WE THE PEOPLE.

        “People recoil at the idea of a theocracy’s morality being forced upon them, but because all governments are theocracies, someone’s morality is always being enforced. This is an inevitability of government. The question is which god, theocracy, laws, and morality will we choose to live under?…”

        For more, see online Chapter 3 “The Preamble: WE THE PEOPLE vs. YAHWEH” of “Bible Law vs. the United States Constitution: The Christian Perspective.” Click on my name, then our website. Go to our Online Books page, click on the top entry, and scroll down to Chapter 3.

        • Very well put. So what morality will be the foundation for the future of this once great nation? You have a choice, so “choose you this day whom ye will serve; whether the gods which your fathers served that were on the other side of the flood, or the gods of the Amorites, in whose land ye dwell: but as for me and my house, we will serve the Lord”

    • the Second Amendment is one of the few components in the Constitution that’s close to being biblical, Sooo….that is why all of these ministers, priests of the gospel keep telling me that you cannot be a CHRISTIAN if you own a gun! I left the church over this and the SOCIALIST gospel. communist Christianity.

  8. So why did the Pilgrims leave England? Which religion is the “right” one? If only one is right, then all others are all wrong? My concept of freedom is really screwed up if that is true.

  9. SCOTUS is as anti as you get and they are handing over to the antis a very powerful means to control the 2nd Amendment.

    • “SCOTUS is as anti as you get and they are handing over to the antis a very powerful means to control the 2nd Amendment.”

      If that is so, why did SCOTUS rule the right be armed was an individual right in ‘Heller’?

      If they were ‘as anti as you get’ it seems to me they would have ruled that TKABA was constitutional only for military use…

      • Their decisions are vague and allow for way too much interpretation. If they had been more clear cut and final NJ, CA, DC, …… and the rest would not be as restrictive. After all “shall not be infringed” doesn’t seem clear in the aforementioned locals.

      • The 9th and DC are both twisting Heller to uphold magazine and firearm bans. Heller can still be used to ban semi auto firearms by a crooked court, its only as pro 2nd as far as I could throw Sotomayor. Its protections are paper thin.

        • Then, for the good of ALL us gun owners, get to the gym and work on throwing things, so you can throw sotomayor far enough for ALL of us to be secure!

  10. (This was supposed to reply to Ted…)

    We founded our Great Nation to be free from religion far more than to provide freedom of it. Freedom of religion is based on the construct that you have the human right to believe as you wish. Please read the FFs and their views on religion, and religion in government to be specific. The Salem Witch Trials are what happens when religion gets too cozy with governance.

    I can rattle off dozens and dozens of specific passages from the Talmud, Torah, Bible, and the book that cribbed them both, the Qu’ran. Those passages tell you who to kill from gays, to unbelievers, to those of different gods. How when you kill the “others”, god will provide their livestock and women to you. How god wants you to kill children who misbehave, and he even sends lions to kill some brats who has the gall to call someone “baldhead”. But I won’t. You have no idea what’s even in those books of bronze-age fairy tales. Let alone who even wrote them, and when.

    Here’s your central logical error that just destroys your entire post. The entirely preposterous supposition that religion, any religion, is the basis for morality. Religion justified slavery, killed people for being witches, killed scientists, killed non believers, killed them for being gay, and keeps on killing. For cartoons, amongst other things. The really scary part to the rest of us is when you say that without fear of fire and brimstone, you folks would apparently behave like lawless animals.

    I want nothing to do with the morals of a god who gives specific instructions on how to sell your daughter as a sex slave (EX 21:1-11), requires women to marry their rapist (DEUT 22:28-29), or asks a man to sacrifice his child as a burnt offering to him (GEN 22:1-18). Oh, and before you think it, Jesus says 3 different times (maybe more, I forget sometimes) that the laws of the OT are binding forever (LUKE 16:17 and MATT 5:17).

  11. The opinion letters issued by the DOL on mortgage loan originators seem more akin to the technical letters that BATFE issues – see Sig brace – than the latest maneuver to ban green tip ammo. I practice wage and hour law so I am much more familiar with the DOL opinion letter process than the BATFE advisory process, but this SCOTUS decision was no great shocker.

  12. As much as I dislike the ATF’s legal logic, it was a courtesy to provide a questioning period. Hopefully they learn from that.

  13. We long ago lost representative government. The bureaucracies run the country, and have for at least 40 years. Only a complete collapse after the parasite has drained the country dry will free us from it…

    • Sadly, we have crossed that river. I do hope there is some more civil solution than the one the history tells will have to happen.

    • Geee……where does the Constitution state that Congress can delegate its authority in legislative matters? I thought the court system was supposed to define all the badly needed legislation? Silly me!

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  15. There’s always the chance that Congress might be able to enact a legislative remedy if the BATFE goes too far and refuses to back down next time — depending on who succeeds the current President, that is.

    ROTFL. First, the BATFE went too far a long time ago. Second, if we are waiting on Congress and a new President to do anything substantial towards protecting individual Liberty, we’re pissing up a rope.

    Chip, chip, chip away. We have to bat down every single bit of government encroachment to even tread water whereas government can just keep throwing until things stick.

  16. Well, let’s find out if the courts’ pride will win out against their laziness. It’ll be hilarious if this ammunition gambit of the ATF’s ends up getting a judge to exercise his own interpretation with regards to “pistols” versus “rifles” as pertains to the AR15 and barrel changes. Sadly, I think most judges are too lazy to think at all (case in point that asshat in DC who thinks muzzle loader sabots are live ammunition)

  17. Johannes Paulson: “I could see an aggressive administration pushing the BATFE to enforce a series of petty rules like the M855 ban that skate on the edge of what was authorized by statute. That would force gun rights groups to choose between accepting the rule or expending effort and money opposing them, hoping to exhaust them before delivering a coup de grace like Bane versus Batman.”

    You mean we can’t just waive the 2nd Amendment at them to make them behave ??? We have to take all that time, effort, energy and spend a minimum of 5 or 6 digits on lawyers, too; and then likely loose ????

    So much for ” … shall not be infringed”. Sounds like the constitution is dead. From the looks of things, it is dead and the constitutionalist are still dreaming about how it will save them.

    It’s time to wake up Constitutionalists.   Wake up Constitutionalists.  Come on, wake up, wake up Constitutionalists.  Coffee’s brewing.   Take a big whiff Constitutionalists.   You’re just dreaming, Constitutionalists.   It’s Dead.  Has been for a long time.

    The police are here and they’re searching the house with guns drawn. Warrant?  What’s that?   They don’t need a warrant (e.g., Boston Lock Down, etc., etc., etc.).       

    They said it had something to do with you not filling in blanks properly when you obeyed your god the state, like the good conquered people you are, and signed up for Obamantion Care.   

    If they gun you down and you die, don’t worry, you can sue in Justitia’s courts.

    Oh, and if that doesn’t work – don’t worry, you can change that come the next rigged (pre-s)election.    Come on Constitutionalists, wake up.  Wake up.  Wake up.   Come on now.

    Ya think waiving the 2nd Amendment at this is gonna work ????   How’s that been workin’ out ??

    THE VAST MAJORITY of Congress, presidents, the administrative agencies, as well as the so called “Supreme” Court, are merely MIDDLE MANAGEMENT and are owned and controlled by those wicked ones that put them there, which is our punishment from The Great I Am for rejecting Him and His Perfect Moral Laws.   

    The sooner we all get a grip on this fact and recognize it, the sooner we can all understand the real problems and get to solutions, beginning with repentance for exulting the god “We The People” instead of The Great I Am and His Law as the supreme law of the land.

    We must turn back to The Almighty and His Commandments, Statutes and Judgments, not “hope” in “We The People’s” constitution or this, that or the other Amendment; most certainly not in this illegitimate court system.

    What is very difficult for most to realize is that the corrupt system we now find ourselves living under today was inevitable over time.

    Knowingly or unknowingly, the door was established and opened by the Founding Fathers, which many claim were “Christian”.

    The process was allowed to begin when they decided “We The People” should be god (sovereign) and determine what is to be the supreme law of the land.

    The legislative process provided by the various federal and state constitutions was the vehicle used by the enemy to corrupt over time (via gradual increments) and finally take over.

    This nation wanted to determine what was “good and evil” (remember the garden?), instead of enforcing His Perfect Moral Laws.

    Malim in se (evil in and of itself as defined by The Great I Am, the ONLY lawgiver) vs. malim prohibitum (evil because someone determines, or legislates, it to be evil).

    The result: We not only find evil, rotten, Marxist, Edomite Tares (as well as the “Twice The Sons of Hell they proselytized) corrupting the nation , we also find “The Communist Manifesto” and The Ten Planks contained therein, written by the Edomite, son of a Rabbi, Karl Marx, is the system our enemy was allowed to slowly ensnare us with, here in the good ol’ U.S.S.A.

    All 10 Planks of The Communist Manifesto in Full Force In AmeriKa:  http://www.criminalgovernment.com/docs/planks.html

    And now it’s morphed into Corporate Fascism.

    That’s one of many terrible results of replacing The Ten Commandments with “We The People’s” creation called the constitution and making our own laws. “We shall be like The Most High and determine what is good and what is evil.”

    The only way to save this nation is to turn back to Him, His Perfect Moral Laws, Statutes and Judgments, i.e., His Kingdom/Will On Earth.

    He told us that if His people ” … shall humble themselves (e.g., quit thinking we’re the sovereign, take our proper place and quit usurping His), and pray, and seek my face (e.g., He’s to be the ONLY law giver), and turn from their wicked ways (e.g., seek His Kingdom/Will and promote the enforcement of His Laws, Statutes and Judgments); THEN will I hear from heaven, and will forgive their sin, and will heal their land.”

    “Come to Me, all who are weary and heavy-laden, And I will give you rest. Take My yoke (i.e., His Law 1 John 5: 2 & 3, as well as His tithe [tax] system) upon you, and learn from Me, for I am gentle and humble in heart; and ‘YOU SHALL FIND REST FOR YOUR SOULS.’ (Jer. 6: 16). My yoke is easy, and My load is light.” Matthew 11: 28 – 30.

    Seek Him while He may yet be found. The judgments are all around you.

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