BREAKING: Supreme Court Grants Cert in Case That Could End Deference to Regulatory Agencies, Challenge ATF Regulatory Power

kisor v wilkie Supreme Court Grants Cert in Case That Could End Deference to Regulatory Agencies, Challenge ATF Regulatory Power

courtesy foxla.com

By LKB

Sometimes, the biggest things the Supreme Court does can fly under the radar of just about everyone but the involved parties (and the law geeks). Today, the Supreme Court granted cert in a case that might bring a truly seismic change in the law – including laws affecting gun owners.

By way of background [law geek mode: ON], we all know that Congress passes laws (subject to presidential veto and veto override procedures). However, in most cases, Congress leaves it to federal agencies to implement those laws, including promulgating the regulations that govern the nuts-and-bolts of how the law will works. 

For example, the National Firearms Act of 1934 imposed a tax on the manufacture and transfer of machine guns, suppressors, SBS/SBR’s, etc., and required them to be registered with the federal government. However, the ’34 Act didn’t specify how this would be done (e.g., would it be something that you could just go and do on a cash-and-carry basis at your local post office, or did it require all of the hoops we see today?).

Congress left it up the bureaucrats to come up with the regulations on how to implement that law. To a certain extent, that makes sense; it’s impossible for every act of Congress to include every detail of how each law is to be implemented.  

Of course, many of these regulations themselves wind up being cumbersome or hard to understand, especially when they deal with technical matters or may conflict with other laws or regulations. Thus, the same agency that promulgated the regulations is often required to interpret them, both formally (such as in a decision in an administrative enforcement proceeding) and informally (e.g., in an opinion letter).

What happens when someone disagrees with a regulation or the agency’s interpretation of it, and argues that the regulation/interpretation is inconsistent with the law passed by Congress…or maybe isn’t even authorized by the law in the first place?  

Normally, you would think that federal courts would decide those kinds of issues, as that’s what the judicial branch is supposed to do. However, that’s where things get messy.  

Under what is known as Auer deference, named for a Supreme Court case, Auer v. Robbins, courts must defer to the agency’s interpretation of that agency’s own regulations unless such interpretation is plainly erroneous. Under a related doctrine, known as Chevron deference, where a statute implicitly gives an agency the power to promulgate regulations, the courts are not to substitute their interpretation of a statute for a reasonable one that has been made by the bureaucrats.  

Why the Supreme Court decided to abdicate judicial authority in this fashion is a hotly discussed topic among law professors and serious law geeks. From a practical standpoint, the upshot of this is that it allowed federal bureaucrats to amass huge amounts of unchecked power over the past few decades, because it is almost impossible for anyone (other than Congress or the President, both of which are too busy to deal with all the decisions made by thousands of bureaucrats) to challenge their actions. 

For gun owners, we need only look at the behavior of the BATFE in its shifting interpretations of firearms laws and regulations, which the courts have largely let stand because of Auer and Chevron deference.

Recently, there has been a push from some quarters to reconsider Auer deference, Chevron deference, and other aspects of the modern administrative law state, and overturn them as being inherently unconstitutional; specifically, that such deference to bureaucratic decisions violates the required Separation of Powers. 

Were that to happen, the current administrative state would be rocked to its core. While there have been some rumblings from Justice Thomas and others in this regard, there did not appear to be a majority on the Supreme Court interested in potentially unleashing this kind of political earthquake. (Scalia and Kennedy were, at best, squishy on the issue.)

Today, however, the Supreme Court granted cert in a case, Kisor v. Wilkie, that specifically challenges whether Auer deference is constitutional. With the addition of Justices Gorsuch and Kavanaugh — both of whom have expressed reservations about the current state of administrative law — there may now indeed be the five votes need to begin to undo the decades-long abdication of power to the vast federal bureaucracy, including BATFE.   

Keep your eye on this one. This case could eventually do more for gun owners than any case since Heller, and indeed could be one of the most important Supreme Court cases in recent history. 

comments

  1. avatar Cruzo1981 says:

    Let’s pray!!!!! I doubt we’ll be able to do amything.

    1. avatar Howdy1 says:

      OK, you’ll have to dumb it down for me.
      After cert is granted, then what’s the progression to get to toward this “”shaking up?”

      1. avatar Sam I Am says:

        “After cert is granted, then what’s the progression to get to toward this “”shaking up?” ”

        If “Heller” and “McDonald” are indicators, not much.

        The hopefuls are thinking like law abiding citizens. If a thing is declared illegal by a court, then everything that stands in opposition should immediately be expunged from the statutes. Wipe the slate of illegal rules and regulations. After cert, the SC justices get together and decide how they will rule (not necessarily in agreement with each other). Somewhere in the process, the actual filing of the appellant and the opposition may be read. It is also possible oral hearings will be required, and possible the arguments will be persuasive where the legal briefs did not convince. Then a bunch of months have to go by, and the SC will issue a ruling. As noted, the hopeful expect a favorable ruling (government loses) will result in a complete overturning and removal of any law, rules, regulations that are not aligned with the SC decision. Real life says that doesn’t happen, and like so many SC decisions, the losers will just defy the rulings – because there is no penalty for defiance.

        1. avatar Anymouse says:

          This isn’t a ruling that will say whether any particular regulation is illegal. Instead, it’s a decision on whether the judiciary has any say regulations. If the plaintiff wins, it just means that the lower court will hear the case. Future cases would give couts the option to hear more cases where plaintiffs sue an agency over a regulation. It would make it more likely, but not guaranteed, that a court would at least hear a challenge to bump-fire stocks being red as machine guns.

        2. avatar Sam I Am says:

          “This isn’t a ruling that will say whether any particular regulation is illegal.”

          Indeed. A positive ruling for the plaintiff would only open the door for endless litigation. It would not remove any existing interpretation by government agencies. My intent is for people to recognize the limits of the case, and not view it as a mass change in status of any agency interpretations. Battling each and every government rule will be a lengthy and futile struggle trying to re-balance the equations.

        3. avatar Freebird says:

          QUESTION For The Law Geeks ;
          How does the fact that ” agencies ” like BATF and IRS were NOT created by Congress, and do not appear to have ” Venue or Jurisdiction ” fit in here ?

          The FEDERAL Alcohol Administration, which ADMINISTERS the Federal Alcohol Act, and offices of members and Administrator thereof, were ABOLISHED, and their functions were DIRECTED to be ADMINISTERED under direction and supervision of Secretary of Treasury through Bureau of Internal Revenue, now Internal Revenue Service. THE FEDERAL ALCOHOL ACT WAS RULED “UNCONSTITUTIONAL” WITHIN THE 50 STATES; so was transferred to the B.I.R., which is an OFFSHORE TRUST, which became the I.R.S.; which gave BIRTH to the B.A.T.F.; AND SOMEHOW, the term [Director, Alcohol, Tobacco, and Firearms Division], which is a PERSON within the B.A.T.F., spawned the alleged Internal Revenue Service via another flick of the pen on September 15, 1976. ”

          BATF – IRS fraud explained and documented in detail , with citations.
          http://usa-the-republic.com/revenue/BATF-IRS%20Criminal%20Report.html#tgotm

        4. avatar Sam I Am says:

          Unless congress specifically creates an executive branch department, it is left to the executive branch to establish the means to carry out laws of congress. The executive is not required to ask formal permission to create agencies subsequent to the establishing of the law. The “permission” is granted through the budget process, where congress can refuse to fund any government activity it chooses. Also, unless specific to a law, the executive branch agency internal rules and regulations are not required to be submitted to congress for approval. Thus, it is up to congress or the courts to corral executive branch agencies. Also, congress generally includes in its laws, the direction for the executive branch to establish whichever mechanisms are necessary to implement the laws, and thus regulations and rules must be germane to the establishing law. As such, the rules and regulations have the effect of derivative law, and are enforceable by the executive branch, or the courts.

        5. avatar Iman Azol says:

          Freebird: “was transferred to the B.I.R., which is an OFFSHORE TRUST”

          There is no such thing as an “offshore trust” in this context.

          Whatever site you’re reading from is conspiracy nuttery.

      2. avatar RF s a BFBD says:

        Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari. This is a request that the Supreme Court order a lower court to send up the record of the case for review. The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. In fact, the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year. Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue).

        The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. Five of the nine Justices must vote in order to grant a stay, e.g., a stay of execution in a death penalty case. Under certain instances, one Justice may grant a stay pending review by the entire Court.

  2. avatar Jeremy D says:

    This could be cool but I’m not holding my breath

  3. avatar JR Pollock says:

    Gorsuch has expressed strong opinions regarding his dislike of the Chevron Defernce. It’s looking like Alito, Gorsuch, and Thomas are “The Three Conservative Amigos”.

    1. avatar JR Pollock says:

      Deference…

      1. avatar Removed_californian says:

        He missed a letter…

  4. avatar Swarf says:

    So wait… legislating from the bench is a good thing now? Make up your minds.

    1. avatar Yarbles says:

      NOT what was said.

      Both Auer and Chevron deference were/are based on Supreme Court decisions therefore ARE ‘legislation’ from the ‘bench’.

      This could lead to a ‘conservative’ SCOTUS decision to reverse this trend and wound the Deep
      State Bureaucrats.

    2. One court deciding that a prior court made a mistake is not legislating from the bench.

      1. avatar TomC says:

        How often has the Supreme Court ever actually overturned a prior Supreme Court decision? (Hint: the answer is less than one).

        Just because the court is probably leaning more towards the intent of the original framers of the constitution than it has been in decades, does not mean that there is a majority ready to turn existing jurisprudence on its ear.

        At best, the court might find some distinction between the prior rulings and the current case. That would not Throw-Open-The-Flood-Gates, but it might open the door just a sliver — which would be good news considering that this particular door has been locked, nailed shut, and plastered over for many years.

        Take, for example, the BATFE wild notion that bump stocks are somehow “machine guns” which is demonstrably false in a technical sense as well as being exactly opposite of the prior decision of the same agency. Look at the threads here about that decision and you will see dozens of armchair experts saying that the NRA (or someone) should challenge the BATFE interpretation in court. BUT with the current state of US black letter law, such a challenge gets tossed out of court even before opening arguments – the government would simply move for dismissal because it is established principle that the courts defer to the regulatory agency’s technical experts on all matters of interpretation. In theory a challenge based on the BATFE interpretation being physically incorrect ought to be allowed, but the evidence to make that claim would never make it into the federal district or circuit courts.

        But IF the Supreme Court opens even a crack in the deference doctrine, then we have a CHANCE. (And, yes, the wider that crack, the better our chance).

        By the way, opening a crack in deference isn’t a purely one-sided win for our side. It also opens that same door for other people to challenge other interpretations by the BATFE and other regulatory agencies. For example, Bloomberg et al could challenge the BATFE interpretation legalizing “arm braces” on “pistols.”

        1. avatar Anymouse says:

          A Bloomberg challenge would need a convoluted argument for standing. Someone owning a braced pistol and insisting it be registered as an SBR can do that now – just file the form and pay the tax. If a state or municipality declared braces to be stocks, it would open the door for others to redefine what’s a machine gun, SBR, SBS, etc.

        2. avatar That One Guy says:

          It seems like SCOTUS has overturned SCOTUS several times.

          https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions

        3. avatar LKB says:

          Sorry, but your assertion that the Supreme Court never overrules itself is just wrong.

          While not common, there are plenty of examples where the Supreme Court has reversed itself and declared a prior precedent to be overruled. Just last term, the Janus case (declaring forced payments by state employees to unions unconstitutional) explicitly overturned the earlier Aboud decision (which found such required payments were OK). And don’t even get started on the gay rights cases, where the Supreme Court did a complete 180 in less than a generation.

        4. avatar Chicago Steve says:

          You’re right, SCOTUS has never reversed itself……except for Brown v BOE which overruled Plessy, oh an MANY MANY MANY other times!

        5. avatar Geoff "Mess with the bull, get the Horns" PR says:

          “It seems like SCOTUS has overturned SCOTUS several times.”

          You bet your ass they have!

          That’s *why* the ‘Heller-McDonald’ decisions are in NO WAY ‘etched in stone’. The next time the Court’s balance goes ‘Progressive’, *expect* them to reverse Heller “because of the particular danger guns are in a city environment” or some such rabble.

          They will gut the 2A with glee, and with the same sense of ‘righteousness’ as when the ‘Dred Scott’ decision went down…

        6. avatar drunkEODguy says:

          how about MacDonlad v Chicago overturning United States v. Cruikshank?

    3. avatar New Continental Army says:

      Play to win.

    4. avatar LKB says:

      OK, I’ll bite . . . how is deciding a case on the merits, as opposed to ignoring the merits and deferring to the decisions of unelected bureaucrats, “legislating from the bench”?

      Auer Deference, Chevron deference, Skidmore deference . . . all are creations of judges “legislating from the bench.” Getting rid of it is the opposite of “legislating from the bench.”

      1. avatar Geoff "Mess with the bull, get the Horns" PR says:

        LKB, the biggest danger I see from this is a hyper-increase of ‘New Laws’ with obvious conflicts everywhere.

        Example – Who could be against a law making “Cop-Killer Bullets” illegal to own? Simple law, if it can penetrate body armor, it’s illegal. The idiots will vote for that with *glee*. And nearly *every* rifle round will be illegal. The democrats will be just fine with that. Gotta break a few eggs to make an omelette, don’t you know?

        That’s where BS like that leads. The Leftists will craft laws that will sound perfectly innocent and good, but in reality, will *destroy* the 2A, and freedoms in general…

    5. avatar pwrserge says:

      Obvious commie troll is obvious. Requiring courts to closely scrutinize bullshit regulations made by unelected bureauvermin is why we have a SCotUS. If Congress wants to pass laws, let them pass laws. Regulations made by unelected paper humpers are not laws and shouldn’t have the authority of laws.

      1. avatar Vlad Tepes says:

        Yes your right but the reality is that they do it every day and get away with it.

        1. avatar pwrserge says:

          Which is why this case is so important.

      2. avatar Guardiano says:

        I read all your posts in a light, non-specific Slavic accent. Hopefully that’s accurate or else it will be like finding out Santa isn’t real.

    6. avatar zerofoo says:

      This isn’t legislating from the bench.

      The bench may be attempting to limit regulatory powers that are self-granted by regulatory agencies.

      If this happens, there may be two effects:

      1. Regulatory agencies would be severely limited in their ability to create regulations out of thin air.
      2. Congress would be forced to do a better job by providing implementation details in the laws they create. It may actually force Congress into considering the details and unintended consequences of the laws they write.

      As it stands now, lawmaking is a sloppy process and congress has outsourced much of their rule-making to un-elected bureaucrats that are not accountable to the voters. A supreme court ruling here could fix this.

      1. avatar Sam I Am says:

        “The bench may be attempting to limit regulatory powers that are self-granted by regulatory agencies.”

        Nope. The only two outcomes are: government agencies continue to interpret their own regulations (the words mean what we say they mean whenever it increases our power); individuals are granted “standing” to sue government agencies for decisions an individual finds unsatisfactory. I see this as a potential opportunity for the trial lawyers to increase earnings.

    7. avatar Dave Huff says:

      You need to comprehend what you read…..

  5. avatar Sam I Am says:

    “Congress left it up the bureaucrats to come up with the regulations on how to implement that law. To a certain extent, that makes sense; it’s impossible for every act of Congress to include every detail of how each law is to be implemented. ”

    Which is perhaps where it all went wrong?

    In the beginning, the bureaucracy was quite small; tiny. The founders did not contemplate a situation where the administration of a law would be the law. However, the voters of the republic are quite happy to have their agents (representatives) delegate their delegated powers to unaccountable smurfs deep in lackluster buildings.

  6. avatar Rocketman says:

    Except that now the dem’s are about to control the house. Want to bet that the antigun bastards will legally nullify any redefinition that tends to favor the 2nd Amendment crowd?

    1. avatar Sam I Am says:

      Tradition and history favor Kavanaugh’s reluctance to overturn any decision. No matter the briefs and arguments before the court, a ruling will not be based on reading the constitution, but on whether the executive branch followed established procedure.

      1. avatar Slim says:

        Dude… You’re such a downer. Big brother will surely crush us… Just turn your guns in already….

        1. avatar Sam I Am says:

          Sometimes being a realist is a downer; not to be avoided.

          The point of being a realist is to put forward a check on unbridled enthusiasm, nay, unreasonable enthusiasm. When you observe a system in action, yet expect that through some magical effect the system will change its operation is not an example of clear analysis.

          When it comes to the court system, the past is prologue – except maybe for exceptional exceptions. The rarity of 180 degree shifts in a jurists thinking cannot seriously be depended upon to “right the ship of state”. Does such a turn happen? Yes. Is it something to bet the farm on? We report, you decide.

          Being a realist about courts and politics means I accept that my wishes are most likely not to be granted. Thus, I am not discouraged to the point of hopelessness. Manage your expectations, or they will manage you. If you have firm reasons to believe the outcome from the system will benefit you, they be enthusiastic. If not, being enthusiastic may actually redound to your detriment.

        2. avatar GS650G says:

          I try to have faith in these matters. I know, it’s corny and all that but sure beats the alternative. And what’s wrong with having an invisible friend for comfort?

      2. avatar Nanashi says:

        This. I hope Ginsberg will finally bite the dust for good before this is heard.

        1. avatar Manse Jolly says:

          She seems immortal…makes me wonder.

          Surviving on pure political spite appears to work for her… probably saves on grocery bills too.

        2. avatar pwrserge says:

          Well, yeah… have you priced virgin blood lately? I can only imagine how much it’s costing her to keep up her supply.

        3. avatar Green Mtn. Boy says:

          My hope is both Roberts and Kavanaugh are not swing votes to the Left.

      3. avatar Slim says:

        Blah blah blah…. The diabetes and heart disease will get you much sooner than the big government boogieman you fear so much….

        1. avatar Sam I Am says:

          “…the big government boogieman you fear so much….”

          The government I fear so much has been in power since 1992.

          But, all seriousness aside, wouldn’t you be happier attending a Dr. Suess blog?

      4. avatar Geoff "Mess with the bull, get the Horns" PR says:

        “Tradition and history favor Kavanaugh’s reluctance to overturn any decision.”

        Sam, “Tradition and history” will favor *us* when we get mandatory gun registration declared un-constitutional by the high Court.

        And that’s gonna be *huge*, gutting their ability to confiscate…

        1. avatar Sam I Am says:

          “Sam, “Tradition and history” will favor *us* when we get mandatory gun registration declared un-constitutional by the high Court.”

          No.

          “Tradition and history” is restricted to legislative and judicial tradition and history, not the heroic history once taught in schools. The US does have a robust history and tradition of restricting the Second Amendment. One can cite a multitude of gun restrictions, but very few cases resulting in preservation (some call it expansion) of “gun rights”.

      5. avatar J Buc Esq says:

        Sam, I guess you have never read any of Kavanaugh’s opinions on Chevron. He is strongly against administrative power grabs. And precedent has not held him back in his other Fed court opinions.

        There is a fine line between realist and dope. However, you are clearly on one side of that line.

        1. avatar Sam I Am says:

          I read Kavanaugh’s opinions, AND his testimony before the Senate. He firmly, clearly declared that “precedent” (tradition and history) is the gold standard for him.

          Kavanaugh wrote an opinion that banning semi-auto rifles would seem out of bounds because there is no tradition or history (precedent) for banning them. Take note that he did not rely on the words of the constitution for his reasoning. Why would you think he will do otherwise as an SC justice?

          BTW, slinging insults like a child does not make you more intellectual, intelligent, authoritative, erudite or competent to discuss serious matters.

    2. avatar LarryinTX says:

      Rocketman, the House has no input into SCOTUS decisions, who controls it is irrelevant to this case.

  7. avatar Ing says:

    …the current administrative state would be rocked to its core.” God, I hope so. That little phrase made my heart skip a beat.

  8. avatar Gov. William J Le Petomane says:

    I seem to remember a guy named Kafka wrote about this sort of thing.

  9. avatar rt66paul says:

    Legislating from the bench is good if it puts it back the way it was under the constitution. overturn illegal laws.

  10. avatar former water walker says:

    Alrighty then…call me if something good happens.

  11. avatar 22winmag says:

    The Supreme Court.

    Kavanaugh is already siding with the baby-body-parts industry and who knows who he will side with on guns.

    Hope all you Trumpeteers are proud.

    1. avatar New Continental Army says:

      Yeah things would be SO much better with Hitlery at the helm

    2. avatar jwm says:

      I know it’s a cruel and heartless way to look at it. But most of those baby body parts are coming from women that are the dems base. Women that would need a lifetime of public assistance to raise those baby body parts.

      How many unwanted babies have you adopted?

      1. avatar Manse Jolly says:

        I hesitated when replying as I like to stick to gun stuff…..but.

        The problem of abortions is one of potentials. Fact is no one but (insert whatever belief in higher deity here) knows what that baby would become.

        Could grow up to be first astronaut to walk on Mars…..might grow up to cure all types of cancer…could be the one to invent phasers (we’ll figure out what to argue about when they are invented) Future President….Faster than Light travel…ect ect ect. Could become bad criminal as well, or just useless oxygen thief.

        We, as a society, have no idea who we are killing and what their potential might be.

        That’s not right.

        ..and all I will really say about it.

      2. avatar GS650G says:

        My cousin adopted a crack addicted baby and he’s doing just fine.
        One less murdered child who will grow up to be someone instead of being parted out by the PP regime like an old car.

        They shouldn’t just be de-funded, they should all be in jail.

        1. avatar Hannibal says:

          How many have you adopted? There are still plenty available.

      3. avatar New Continental Army says:

        Abortion is eugenics. And it does in fact generate a net benefit for society. But, that doesn’t make it right.

        1. avatar Slim says:

          Smartest comment I’ve ever read on this blog. I’m perfectly fine with abortion. Weeds out the useless knuckleheads before they sprout legs…. Kudos!

        2. avatar Weapon Of War says:

          And, I suppose you are so very, very useful to society, Slim? There is only one GOD. Little tin human “gods” don’t have the right to decide what baby is useless and which is not. Dipshit.

        3. avatar New Continental Army says:

          Some of you need to learn how to read. Totally missed the “doesn’t make it right” part of my post.

        4. avatar Sam I Am says:

          “Some of you need to learn how to read. Totally missed the “doesn’t make it right” part of my post.”

          Might be many people see no, zero net benefit to society, and reacted that way?

      4. avatar Nanashi says:

        Abolition of abortion must be accompanied by welfare reform.

        1. avatar uncommon_sense says:

          Agree 10000%

          Ban abortion and government funded welfare.

        2. avatar Huntmaster says:

          Why? When MSR’s were banned in CT they didn’t reform Social Security or farm subsidies?

      5. avatar uncommon_sense says:

        My spouse and I have indeed adopted an unwanted baby — at great expense and personal sacrifice I might add. And I would do it again.

        Sometimes doing what is right comes at a great cost.

    3. avatar Sam I Am says:

      “Kavanaugh is already siding with the baby-body-parts industry”

      Which case? There were three regarding the same issue.

      BTW, applying the law is not “siding”. Screwing with the law to gain a political advance IS “siding”.

      The issue at hand was the attempt by States to change their Medicaid programs so as to cut funding to Planned Parenthood. Question: do individuals have the “right” to sue State officials regarding the manner and outcome to changes in Medicaid coverage This question does not address whether the States can de-fund Planned Parenthood, only that recipients have “standing” to challenge decisions of the States. There was no straight-up, “Do the States retain the power to change Medicaid programs?”

      A superficial reading of the headlines about the denial of cert will lead to a confusion that is not unraveled in the headlined articles. The common charge is that Kavanaugh did not vote to grant cert. The rejection of cert left the 5th Circuit Court of Appeals ruling to remain in place – granting individuals the right to sue the State for decisions that change Medicaid programs.

      So, the question is: do YOU want individuals to be barred from suing a State government for actions that are adverse to you?

      The Thomas, Alito, Gorsuch dissent is very stern, and worth reading because it raises the issue of States being brought to a halt due to unlimited right to challenge any and every change in state law passed and executed by elected representatives.

    4. avatar Green Mtn. Boy says:

      He isn’t a win but then neither is Bush jr. Roberts,they are the weak links although that happens when RINO’s nominate judges.

    5. avatar LarryinTX says:

      Whatever your question, “freedom” is my answer. If you believe you should be able to force somebody else to do anything, you need to rethink your position, or it may be things which you do that are proscribed.

  12. avatar GS650G says:

    As long as it doesn’t give states, legislatures, or state AGs the power to usurp the 2nd with localized restrictions and bans, I am hopeful.
    The last two 2A decisions left nice little loopholes for the local laws we see now.

  13. avatar uncommon_sense says:

    Congress left it up the bureaucrats to come up with the regulations on how to implement that law. To a certain extent, that makes sense; it’s impossible for every act of Congress to include every detail of how each law is to be implemented.

    If Congress cannot be bothered to define exactly how some entity will implement that law, then that law was not important enough to pass in the first place.

    Congress should be passing exceedingly few laws BECAUSE WE ALREADY HAVE COMMON LAW TO DEAL WITH ANYONE’S ACTIONS THAT INJURE ANOTHER. (Note that the word “injure” includes physical injuries, financial injuries, injuries to reputation, and possibly even more types of injuries.)

  14. avatar Jay in who knows at the monent he has a migrane says:

    I just wish for once somebody anybody here would write in simple English.
    Im a reasonably educated man. I read that article 3 times. What in HE L double hockey stixs did all that gibberish mean?? I have never understood Lawyerese. I hate Lawyers as a rule. Let alone when one writes anything. Can anyone please translate for me here???

    Is the writer saying that the “Administration of laws as written by committee” is WRONG??? Heaven forbid it be that simple.

    1. avatar Sam I Am says:

      “I just wish for once somebody anybody here would write in simple English.”

      If I write rules and regulations such that only I, and my peers, can understand those rules and regulations, I have mystical power over you. Same as doctors who cannot converse in common language.

      I studied law in college, but fortunately a war kept me out of law school. However, later in life I became a federal employee in an area that required a fair understanding of law and legal spoofery. Still trying to unwind that experience and return to “normal”.

      In the case at hand, the issue is who gets to resolve differences between government agency rules, and a someone who disagrees with the agency interpretation of the underlying law, and the implementing regulations.

      Common practice has been to let the agency be the final word on what a regulation means, and if it is a legitimate regulation. When plaintiffs have attempted to have the courts intervene and be the final authority, courts declared that the agencies know what they intended, even if they didn’t precisely say what they intended, so the agencies are the final explainer of what they meant. So, if an agency says “potato”, and an affected person says “potahto”, the courts defer to the agency as to what they meant by writing, “Solanum tuberosum”.

      The case at hand might find a Supreme Court that decides courts are, in fact, the final word on what rules and regulations mean, and if they are legal/constitutional.

      Did that help?

      1. avatar Jay in Florida says:

        Somewhat. But Im still a bit dense on my legalize.
        Thanks

        1. avatar Timothy says:

          My understanding is there is a lot of grey areas when it comes to defining what all applies to a regulation. Currently, if the ATF is trying to pin you for something that’s not clearly right or wrong… you could sue, but the courts are just going to defer to the ATF.

          If the SC overturns previous decisions and you sue, the courts get to be the arbiter for real. This means in order for the ATF to get you, the ATF and the courts have to agree with each other. It provides an extra layer of protection for the individual and a check on ATF power.

        2. avatar Sam I Am says:

          “Somewhat. But Im still a bit dense on my legalize.”

          Want me to take another crack at it?

        3. avatar LarryinTX says:

          I think the main question we care about would be whether a BATF bureaucrat can make a decision which causes me to be a sudden felon, like a bumpstock owner may bbe facing right now. We understand Congress in conjunction with the President can create laws which have the authority to put us in prison if we break them, but can a faceless, nameless, unelected bureaucrat do the same without any oversight or recourse.

        4. avatar Sam I Am says:

          “I think the main question we care about would be whether a BATF bureaucrat can make a decision which causes me to be a sudden felon”

          The case at hand does nothing to prevent such a decision. The issue is whether only the BATFE can interpret its own regulation without there being an avenue to have the interpretation reviewed by the judicial system (the courts). So, if BATFE&EE clearly and unmistakably declared a bump stock is a machine gun, there is no “interpretation”, and that issue would not be cause for an action against the BATFE&EE based on whether the agency properly interpreted clear language. An action may be available that challenges the authority of the BATFE&EE to create such a rule/regulation.

          However….

          If BATFE&EE published a statement/regulation/rule that anything that makes it possible to increase the rate of fire of a firearm is classified as creating a “machine gun”, and interpreted that to mean that oiling the firearm increases the potential rate of fire, then an action based on “interpretation” would be available to an individual.

          All this, of course, depends on the SC overturning a previous tradition and history of allowing government agencies to be the interpreter of their own regulations.

  15. avatar pwrserge says:

    If this case succeeds, the bump stock ban is DOA.

  16. avatar Hannibal says:

    It will somehow not apply to guns.

    1. avatar pwrserge says:

      Ah, but if it dies… it will.

      Open-bolt semi-autos? Legal.
      Destructive Devices only made so because they are “non-sporting”? Legal.
      Bump stock ban? DOA

      That’s the beauty of this case. If the SCotUS sides with the plaintiff, the ATF won’t be able to regulate jack shit.

      1. avatar TomC says:

        Your rant reminds me of the Conservative Clowns who keep advocating a “Constitutional Convention” under the idiotic assumption that it would somehow be controlled by conservatives and that the liberals wouldn’t even bother attending.

        SCOTUS opening a crack in deference would not overturn any existing regulation.

        At best, it would present an opportunity for us to spend several years and umpteen million dollars arguing each of those regulations up through the federal court system hoping that we can get each of our cases to reach SCOTUS because even if we win at the Federal District Court, then at the Federal Circuit Court, the battle isn’t over until it goes before the Supreme Court — who probably won’t rule on the case even if they do grant cert, they are much more likely to refer a case back to the District Court for a decision consistent with some new guidance.

        And, oh by the way, while “we” are fighting each of the regulations we don’t like up through the court system, remember that the other side will be challenging regulations that we DO like up through the court system as well.

        1. avatar pwrserge says:

          Name one regulation that “we” DO like… I’ll wait. You have no idea what you’re talking about.

        2. avatar LKB says:

          The big thing it would do would put the bureaucrats on notice that their actions can actually be challenged. We’d be talking about changing a mindset that currently is “Ya don’t like it? What ya gonna do?” to one where their decision can and would be challenged it they went beyond the legal mandate created by Congress.

          If, for example, the BATFE wants to reinterpret its regulations to say, for example, that binary triggers = machine guns, courts would typically defer to that interpretation under Auer. Knowing that courts are pretty much powerless to stop their little bureaucratic power grabs has emboldened the bureaucrats to grab more and more in this way (the only real check is when they go way too far and attract the attention of Congress or the President).

          If the bureaucrats know that they will have to actually defend their interpretations to a court that is not required to defer to them, and indeed may well reverse their interpretations, the bureaucrats will know that the era of their invulnerability is over. Yes, it would take some time (and court cases) for the message to get through, but it would happen.

        3. avatar Sam I Am says:

          “We’d be talking about changing a mindset that currently is “Ya don’t like it? What ya gonna do?” to one where their decision can and would be challenged it they went beyond the legal mandate created by Congress.”

          More like agencies would effectively say, “So, sue me.” Very few people have the resources to go to court in the first place. There are even fewer who can appeal a decision, and the pyramid narrows as the appeals add up. There are no organizations that can fund unlimited challenges to every possible adverse interpretation made by government agencies. Trying to rein-in a government agency is equivalent to nailing Jellow to the wall.

        4. avatar LKb says:

          Fair point, but I daresay that you have a better chance of corralling bureaucrats without Auer/Chevron deference than you do when the Courts just roll over for them.

          My suggestion would be a statute that says agencies have to fund their defenses (and the fees of successful challengers) of their own actions from their own budgets — no more just kicking it over to DoJ. Start making the agencies pay the actual costs of their actions from their own budgets, and there will be internal pressure not to do things (especially virtue signaling) that are gonna get reversed and just cost the agency $$$.

        5. avatar LarryinTX says:

          Currently, any regulation which even mentions firearms of any description is clearly unconstitutional due to the second amendment. So I completely agree a Constitutional Convention is not something to seek on that issue, we could never craft any input which could be any clearer than 2A is now. What we need is more like an amendment which would immediately and permanently put out of office any official who voted for or approved any law which was later ruled unconstitutional, and any law enforcement who attempted to enforce it..

  17. Just say it like it is….”It’s ALL BullShit !!!” Nothing more than clever, complicated legalese designed to “reason away a sovereign U.S. citizens Constitutional Rights.”

    1. avatar chuck... says:

      Absolutely correct!!

  18. Weapons Control has been around through world history…Usually designed to keep down the Peasents and the Citizenry…From the European monarchies to Imperial Japan…I clearly remember the Japanese “The Great Sword Hunt…” Where just before the 18th century, the Japanese Imperial regime heading into modern European times begin elimination the samurai class…As well as other weapons bearing classes like the Merchants class, in The Bard’s class…The main target, the wearing of swords…(Re: The Daisho: brace of samurai Katana, wakizashi, long-Tanto…)Some Bards could carry a brace of swords…While Merchant class could keep, possess, and carry the the Wakizashi short sword, or various sized Tanto…Similar in idea to a Viking Seax, or Long-Seax….Most women of status could keep, possess, and carry a Kwaiken knife for self-defense… But, the early imperial GOV. was set to eliminate that from Japanese culture…..

  19. avatar Joe Lovell says:

    Is this by any chance PDR Network, LLC v. Carlton & Harris Chiropractic Inc?

    If you tell us to “keep an eye on this case” it is helpful to say what the case is.

    1. avatar LKB says:

      Kisor v. Wilkie. Heck, there’s only a damn link to it in the post!

    2. avatar pwrserge says:

      It’s at the bottom. It helps to read the entire article.

      http://www.scotusblog.com/case-files/cases/kisor-v-wilkie/

  20. avatar possum says:

    Duh what? Supreme Court , au gratin. The right of the people to bear arms shall not be infringed. All them smarts and they can’t read.

  21. avatar Mad Max says:

    De-fanging the Administrative State is of the utmost importance to supporters of freedom and Originalists.

    The existence of the Administrative State reminds me of this line from the Declaration of Independence:

    “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

    May the Administrative State be exterminated. The sooner, the better.

    1. avatar Sam I Am says:

      “De-fanging the Administrative State is of the utmost importance to supporters of freedom and Originalists.”

      Not a single element of a ruling in this case to allow individuals to challenge State action de-fangs anything. The best possible outcome is the SC declares that individuals have standing to pursue lawsuits against the State for actions an individual doesn’t like. The decision about whether the individual prevails is not an element of the case before the SC. Look at the “deep state” wherever it exists. Look at the political make-up of the courts. Do you see many victories for individuals?

      The entertainment factor may be watching the protected deep state tangle with other favored social groups in a court system that favors both.

  22. avatar little horn says:

    LMAO you guys ACTAULLY think they would sign away their own power? pah-leez
    never going to fucking happen

    1. avatar Dead Man Walking says:

      Yes, I’ll NOT hold my breath. I NO longer have trust in government at any level. We are seeing the uncontrolled rise in TYRANNY. Often under the cover of “ITS FOR YOUR SAFETY”. With the support of a corrupt media education system, unelected faceless non-accountable bureaucracy, well, we are doomed. If that was not bad enough, DemoCrud congress hacks say we’ll us NUKES on YOU that resist and fail to OBEY.

    2. avatar Mad Max says:

      Actually, a favorable ruling in this case would take power away from the Administrative State and place it in the hands of the judiciary (where it belongs).

  23. avatar B.Y. Uncle says:

    No NFA for Illinois!
    How can an individual state forbid NFA firearms and items? How is the 2nd not incorporated in all states? Seriously! somebody please explain it to me.

    1. avatar Sam I Am says:

      “How is the 2nd not incorporated in all states? Seriously! somebody please explain it to me.”

      What is your expectation of “incorporated in all states?”

  24. avatar Tim Beatty says:

    This isn’t necessarily a good thing. Deference takes power out of the hands of activist judges which is why it held that way. Imagine a judge interpreting NFA to mean ATF must ban bump stocks or drop-in triggers. Imagine a judge interpreting FCC laws to mean that net neutrality must be enforced. These rulings exist to stop judges from legislating from the bench. Undoing that will mean every district judge would have the power to interpret gun regulations separate from ATF. That is not a desirable outcome.

  25. avatar Cooper was Right says:

    Instead of talking about BATF ” regulations ” , why cant we attack it on the grounds it was never properly created in the first place ?

    BATF – IRS – Peurto Rico Trust Fund # 62 ( an outgrowth unconstitutional from prohibition )

    http://usa-the-republic.com/revenue/BATF-IRS%20Criminal%20Report.html#tgotm

  26. avatar john says:

    When it comes to the courts and guns, I’ve learned not to get too excited. I wish the courts would read the Second Amendment as it was meant to be read, but I doubt that they have the nerve or the will to read it that way.

    i

  27. More than One Cop has actually said to me that ‘over 90 percent’ of what they do IS ‘to the Contrary’ of THESE ‘FundamentalPrinciples’ of ‘the common law’ which ARE ‘the supreme Law of the Land’ in the U.S. (See amend.7)! For example…
    In the U.S. We need ONLY ‘state…true full name’ for cops, and ONLY when there is ‘probable’ evidence to accuse us of a ‘crime’ against the ‘equal rights’ of another Human Being, NOT show ‘ID’, unless exercising an actual ‘privilege’ subject to ‘regulations’ like ‘licenses’, like to ‘drive’ ‘people or property for hire’, as opposed to the ‘right to free travel’ for common personal needs!
    Now I am about to start filing suits and actually eliminating ‘over 90 percent’ of what our courts enforce (And I assume maybe the same percent of what the Criminal Courts, and maybe also civil courts, ‘make or enforce’!), and holding our ‘Public Servants’ PERSONALLY Liable for ‘deprivation of rights under color of law’ by ‘intent or inexcusable neglect’, ‘neglect to prevent’!
    Go to the ‘Pinned Post’ on ‘GovernPublicServants’ Facebook page to get these ‘LawDocs’ and watch me use them in a video to explain why ALL ‘civil offenses’ (Other then LEGIT ‘licensing’ ‘regulations’) are unenforceable! As are all ‘victimeless crimes’!
    I think I can PROVE that these claims in this case are right btw, because ‘Judges’ OBVIOUSLY have the SPECIFIC duty to ‘Judge’ what is and it not ‘to the Contrary’ of ‘the supreme Law of the Land’! The Constitution for the United States (and for the State 2nd, in State govt. matters), and ‘Laws made in Pursuance Thereof’, but NOT ‘any Thing…to the Contary’ of these ‘Fundamental Principles’ of ‘the common law’, which ARE ‘the supreme Law of the Land’! (See Amend.7).

    1. avatar Sam I Am says:

      I truly hope you do not intend to bring suit in court to enforce elements of the constitution (unless you are of a protected class). Don Quixote was a fictional character.

  28. avatar PavePusher says:

    “…it’s impossible for every act of Congress to include every detail of how each law is to be implemented.”

    A. Bullshit.

    B. If they CAN’T accomplish that, they shouldn’t be passing a law.

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