You know that bump stock ban that the Trump administration imposed upon Americans? As I’ve written before, I suspect the President knew the regulatory reclassification of these obscure accessories lacked enforceability in court. And now, sure enough, the ATF has admitted in court filings that it lacked the authority to ban bump stocks in the way it did.
In “Boch: Democrats’ Universal Background Check Bill is DOA in Congress,” I wrote about the bump stock ban:
Oh yes, earlier this year President Trump directed government bureaucracies to “ban” bump stocks. That ban made a lot of Democrats, gun control advocates and the mainstream media piddle themselves with excitement. It also upset a lot of gun rights supporters.
And I fully believe President DJT has no problem with that. Here’s the thing: Trump likely expects this extra-legal ban to go down in flames via the courts. Ever the master negotiator, Trump merely gave the media yap dogs and Dems a big, fat red herring – and they swallowed it whole.
And when the courts strike down the ATF’s regulatory over-reach, Trump can then shrug his shoulders and say he tried. And then continue with his agenda of jobs and America first without breaking his stride. Once again, he’s playing Democrats and the mainstream media hacks for fools.
Now that seems to be exactly what’s hapening. From Yahoo Finance:
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.
This case is not about whether gun control is a good idea. Rather, Mr. Aposhian’s appeal raises key issues about how an agency may create such a ban—that is, whether agency regulations may contradict a statute passed by Congress. The appeal also challenges the notion that a mere interpretive rule can bind third parties, such as owners of bump stocks.
From the court filing:
The Final Rule is void as a matter of law because, as ATF has conceded, it lacked “the authority to engage in ‘gap-filling’ interpretations of what qualifies as a ‘machinegun’” under the Gun Control and National Firearms Acts. (See Appellees’ Br. at 41.) The Final Rule, however, was designed to do just that—expand the definition of a “machinegun” to now include bump stocks, with such new legislative regulations taking effect only “after the effective date of th[e] regulation.” Final Rule, 83 Fed. Reg. 66523 (emphasis added). The Final Rule is therefore invalid and unenforceable.
Recognizing that it has the lawful authority to issue legislative rules only if there is a statutory ambiguity, ATF concedes that “the Rule’s application of the terms used to define ‘machinegun’ in the National Firearms Act is correct, and there is no ambiguity[.]” (Appellees’ Br. at 35-36.) ATF then goes one step further and concedes that it has no legislative rulemaking authority at all. (Appellees’ Br. at 40.) ATF agrees that “Congress did not expressly task the Attorney General with determining the scope of the criminal prohibition on machinegun possession” and that “statutory scheme does not … appear to provide the Attorney General the authority to engage in ‘gap-filling’ interpretations of what qualifies as a ‘machinegun[.]’” (Appellees’ Br. at 40-41.) ATF then argues that the Final Rule is an “interpretive” rule that does nothing more than provide “the best interpretation of the statute” that bump stocks “were machineguns at the time of classification[.]” (Appellees’ Br. at 36, 38, 40-41.) ATF has thus staked out the untenable position that the Bump Stock Final Rule is valid, only because it represents nothing more than a mere interpretation of an already unambiguous statutory prohibition.
This means that ATF agrees that the district court committed legal error. After all, the district court upheld the Final Rule only after concluding that “the Attorney General has been implicitly delegated interpretive authority to define ambiguous words or phrases in the NFA and the GCA” and that the term “machinegun” was ambiguous. (Aplt. App. at A133.) ATF’s present defense of the Final Rule therefore tries to make up for what it agrees was the district court’s erroneous legal analysis. (See Appellees’ Br. at 35-36, 40-41.)
Beyond showing its disagreement with the district court, ATF’s present argument also mean that if this Court decides that the Final Rule is legislative, ATF has conceded that is was promulgated without any lawful “authority” and is therefore void. (See Appellees’ Br. at 40.)
If even the ATF is acknowledging that it lacks statutory authority to ban bump stocks by administrative fiat, it would seem the days of the bump stock ban are numbered.
And Donald Trump can, as I predicted, shrug his shoulders and say, “You know, I tried” and get back to creating jobs and making America great again.
And bump stock owners may soon be able dig them up or pull them back out of their closets or dog houses and take them to the range again.