bump fire stock ban
Dan Z for TTAG
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You can read the motion for cert here. The appendix is here. (both docs PDF)

U.S. Supreme Court Asked to Reign in Federal “Administrative State” and Clarify or Overturn Chevron Precedent

WASHINGTON, D.C. (August 29, 2019) — Today, attorneys for Firearms Policy Foundation, Madison Society Foundation, Florida Carry, and individuals Damien Guedes, Missouri State Rep. Shane Roden, David Codrea, Scott Heuman, and Owen Monroe have filed a petition for certiorari at the United States Supreme Court seeking review and reversal of a D.C. Circuit opinion that allowed the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to impose criminal liability on potentially hundreds of thousands of Americans through executive overreach in the agency’s “bump-stock” rule. The cert. petition and appendix are available at BumpStockCase.com.

In the petition for review, Supreme Court counsel for the petitioners, Erik S. Jaffe of Washington, D.C., boutique firm Schaerr | Jaffe LLP, argues that the “Court should grant the Petition for three reasons: (1) the decision below conflicts with multiple decisions of [the Supreme] Court by elevating Chevron deference above the rule of lenity as applied to ambiguous criminal statutes; (2) the decision improperly finds Chevron deference to be unwaivable; and (3) the decision so grossly interprets Chevron deference as to raise the question whether Chevron should be overruled.”

In the preceding rulemaking process and resulting litigation, attorneys at the Trump administration’s Department of Justice expressly waived the application of “Chevron deference” to the rulemaking. But in spite of that explicit waiver, both the trial court and the Court of Appeals for the D.C. Circuit – often referred to as the Nation’s ‘second-highest court’, especially relating to matters of the federal government – wrongly applied Chevron deference so that the government would prevail, over a strong and detailed dissenting opinion in the court of appeals by Judge Karen L. Henderson.

Quoting a 2014 Supreme Court decision, Judge Henderson said in her dissent that when “the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly, we have an obligation to correct its error.”

Chevron deference” comes from the eponymous case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., decided by the Supreme Court in 1984, which established a new legal test for how courts should give deference to a government agency’s interpretation of a statute it enforces. Many argue that the Chevron case undermined the Constitution and established rules that vastly expanded the “administrative state”.

“Lenity,” the petition explains, “is an interpretive rule that resolves ambiguity in favor of potential defendants and is part of the traditional toolkit for determining the meaning of statutory language. . . . The due process and separation-of-powers concerns that animate the rule of lenity would suffer great violence if agencies were given deference when purporting to define ambiguous terms in a criminal statute.”

“Bump-stocks” were legal under federal law and prior ATF determinations. But in February 2018, President Trump ordered the DOJ and ATF to ban the devices. (83 FR 7949.) Under the new re-interpretation of the statute and bump-stock rulemaking, owners of the devices had just 90 days to surrender or destroy their property, after which they faced federal “machinegun” charges that carry up to 10 years in prison and $250,000 in fines for each violation.

“This litigation remains squarely directed at the broader problem of fiat law imposed by the executive branch and its dangerous aggregation of power, especially in its enforcement of statutes that have criminal implications,” said FPF Chairman Brandon Combs. “This case is a perfect vehicle for the Supreme Court to restore appropriate and constitutionally-mandated limits on the federal government’s wildly out-of-control administrative state.”

Mr. Jaffe noted that “questions surrounding Chevron deference are becoming increasingly problematic and are placing greater pressure on separation-of-powers norms as Congress shies away from exercising its legislative authority and the Executive Branch seeks to expand its powers.” As he wrote in the Petition, quoting a recent opinion by Justice Gorsuch, this case “sounds all the alarms the founders left for us.” The petition continued that “it is precisely the controversial nature of the subject that highlights the need to ensure proper congressional exercise of legislative power: The requirement for separation of powers ‘is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by’ the issues in this case.

Notably, in a January 2018 letter responding to the agency’s initial proposed rulemaking, the Firearms Policy Coalition (a separate 501(c)4 advocacy organization) told the ATF that “perhaps as a silver lining, an illegal rulemaking (such as is proposed here) would provide an excellent vehicle for the Supreme Court to revisit and eliminate the made-up judicial construct of agency deference” under cases such as Chevron.

Attorney Erik S. Jaffe (www.schaerr-jaffe.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and was a sole practitioner from 1997 through 2018. At the end of 2019 he teamed up with veteran Supreme Court litigator Gene Schaerr and others to form Schaerr|Jaffe LLP, a Washington, D.C. based boutique law firm specializing in high-profile trial and appellate litigation. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing over 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 60 amicus briefs at both the certiorari and merits stages.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms, through research, education, legal action, and other charitable programs.

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  1. Well, see how long this spends in conference. I don’t expect the SCotUS to pick up another 2A case until NYC is decided. Though… to be fair… it would be hillarious to watch the gun grabbers lose back to back to back.

    • I’d really love it if President Trump got his gun-grabbing dick slapped by one of the Justices he pushed so dang hard.

      It would be divine justice.

    • “I don’t expect the SCotUS to pick up another 2A case until NYC is decided.”

      They don’t have to address the 2A aspect of it at all. They can feign innocence and choose to deal with it as a separation of powers issue, no?

      (You and I and everyone else will know what it is, but fuck ’em…)

      • Your absolutely right too. SCOTUS is looking at limiting Chevron Deference in some upcoming cases so its possible they just rule on the rule making aspect of this. I give it 1/3 odds as SCOTUS is scidish about 2nd Amendment cases at all. But thats much better odds then your typical SCOTUS gun rights case. So keep watching the skies.

  2. If this is reversed, I’m a-gonna get one just to mount on my wall all by itself. Just bee-cuz.

    • They are on solid legal ground. The blatant rewriting of black letter law by an executive agency is a precedent even RBG wouldn’t want to let stand if it wasn’t for “muh’ gunz”

      • Please, Ginsburg has made it abundantly clear she will take a giant dump over the whole of the Constitution (save for Amendments 14-19) it it means advancing the so-called Progressive agenda. Leftists love state overreach when they control the state.

        • Not sure how much she’ll like opening that door on immigration, abortion, or welfare with the Trump administration.

        • I tend to agree with serge on this.

          Even RBG knows damn right well that eventually this kind of power would be “abused” in a way she doesn’t like (That is, used in a way she doesn’t approve of). If this is allowed to stand then there’s nothing that prevents that POTUS from going after the Left’s sacred cows with, for example, an EO directing a redefinition of “abortion” to effectively make non-medically necessary abortion “murder” which is already banned.

          That’s really the issue here. Not bump stocks themselves.

          If we assume that the SCOTUS give’s a flying fuck about the Constitution, this cannot stand. If we presuppose that the SCOTUS gives a flying fuck about it’s own power then this cannot stand.

          To think that the Court would allow this (provided they hear the case and part of that is if the petition piques their interest, which is partially to do with how it’s written/grounds it asks the Court to consider) requires the simultaneous assumptions is that 1) SCOTUS doesn’t care at all about it’s own power and standing and 2) gives no shits about the Constitution and further 3) gives no shits about “the law” in general.

          IOW, we’d have to think that SCOTUS would basically issue a ruling in favor of the government, pull a Looney Toons “That’s all Folks!” and close down the Court immediately after issuing such a ruling since that ruling would, effectively, nullify any point in having the Court going forward.

    • If this is reversed, then Congress will write a law banning them and President Trump will sign it.

      • The Senate isn’t showing much of a spine on passing gun control for the time being. (That can easily change if another punk stages an attack. Until then…)

        Let the house shoot their wad and pass it. That’s as far as it goes for now…

        • The supposed motivation by the NRA to call for “additional regulation” of bump stocks was that there was already legislation in the works to ban them and other stuff and it was going to pass. That was obviously a lie!

          The NRA gave in without a fight. The situation now is that the NRA has already convinced Congress and President Trump that they should be outlawed.

          The case to ban bump stocks has been already made and they are gone forever! The legacy of the NRA fucking over American gun owners will last way beyond Wayne LaPierre’s reign.

          This lawsuit is still important!

        • Jane, you ignorant slut…. the NRA never called for an outright ban on bump stocks you f’ing bunch of Idiots. While I give money to SAF now and am generally unhappy with the NRA on most issues, the NRA…. knowing all the shit that wouid come down after Las Vegas and that Diane Feinstein had updated her 20 year old “ban on certain weapons” to include braces and binaries (look it up yourself) proposed to allow bump stocks be registered on the NFA registry as a MG or perhaps AOW, which wouid at least allow people that really wanted them to keep the stupid unserialized pieces of plastic and perhaps at the same time placate the antis. There was even talk of when the Registry was opened to allow owners of the stocks to be grandfathered into the registry as was done many, many years ago with a one time amnesty opening of the registry for your grandad war trophies
          I still think it was all done illegally and if Kavenaugh has any appreciation for getting in and holding true to his word we may prevail. I really wish RBG wouid take her sleepy old worn out body and retire so she can enjoy whatever is left before the big C finally gets her.

        • Looks like someone doesn’t know the law and the facts and has a foul mouth.

          Thanks to the 1986 machine gun ban, bump stocks can not be NFA items. The reason why they were banned was because they were classified by the ATF as POST-BAN machine guns, just what the NRA asked the ATF to do by calling for “additional regulations”. The ATF has NO AUTHORITY whatsoever to open up the machine gun registry for POST-BAN machine guns. That requires an act of Congress, which the NRA explicitly wanted to avoid. Also, all machine guns have to be serialized to be registered, so any bump stocks would need to be serialized to be registered.

          Also, Marion Hammer was very clear on the NRA’s stance on bump stocks: https://www.thetruthaboutguns.com/marion-hammer-nra-never-wanted-legal-machine-guns-bump-fire-stocks/. The NRA leadership never wanted bump stocks to be legal in the first place.

      • Even if true, you’d still get the chance to call/write/email/talk to you Representatives and petition the White House over it. Which is better than the current situation, which as serge points out rather adroitly, is that any administrative agency can rewrite black letter law on a whim.

        I don’t suppose that Trump is the smartest guy ever and generally speaking I don’t really care for the guy. However I have wondered from the jump if this isn’t some sort of strategy (as I’ve noted here before I don’t know that it is but I wonder about this action since the behavior sure is odd considering is judicial appointments being people who would generally take a very dim view of this action).

        I mean, Trump’s got some very, very good lawyers and strategists on call. He also clearly hates the administrative state. This seems like a good way to paint that administrative state into a corner and get it pared back.

        Whenever I see something like this I wonder if it’s just stupidity or if the person doing it is pulling what Julius Caesar pulled on Pompey and which Pompey attempted to pull on Caesar.

        • Sure, we might get another chance at this, but the NRA has already convinced most, including many people posting here, that banning bump stocks was a good idea.

          I have been against the bump stock ban from the beginning, while others here were still towing the NRA line that nobody needs bump stocks. Just go back a few months and look for the TTAG articles on the bump stock ban.

          I am all for this lawsuit due to the Chevron Deference implications and I have donated to the FPC, but I am not so naive to believe that bump stocks will be legal again.

          As for your “strategy”, this was an argument to defend the indefensible by the NRA and by NRA and Trump supporters, creating the myth that there was some some 4D beer-pong strategy behind this. There is not!

          Some of those strategy believers have already posted in this discussion thread. Their Dear Leader can not do wrong, so it must be a strategy that eventually does the right thing. LOL.

        • I was here when those conversations happened. I don’t have dementia, nor have I changed my mind from what I said at the time because there has been no additional information that might cause me to do that.

          “As for your “strategy”, this was an argument to defend the indefensible…”

          Trump doesn’t call me and tell me his thoughts or bounce ideas off me. I’ve noted that in the past and said very explicitly, as I have said here, that I don’t pretend to know what’s going on here. Regardless of how you cut it his behavior on this topic is strange and therefore curious, particularly in light of his position. I’m hesitant to write it off as him being an idiot because assuming him to be an idiot didn’t work out so well for the Republicans that ran against him in the GOP Primary or for HRC.

          Regardless of how you might feel about what’s gone on it doesn’t change the fact that the behavior is actually explained by historical precedent. This kind of tactic has been used before and, while risky, it does work when properly executed. Unless you’re going to say that Pompey won… somehow… after being stabbed to death and then decapitated.

          Ultimately you’re left with two base assumptions that go in different directions: The first is that Trump is a fucking moron. The second is that there is some sort of strategy here. If, and I do stress if this works like some have said it might, it divides the Left, fractures the “swamp”, puts the administrative state in straitjacket and conforms to quite a number of Sun Tzu’s rules for warfare. Which you choose at this point is up to you. Personally I’m wary of putting all my eggs in either basket.

          Or, circling back to Caesar, maybe it’s stupidity and hubris, but as Caesar himself supposedly said “It’s only hubris if I lose”. Again, how you see it is up to you, since as Caesar also pointed out: Men willingly believe what they wish to believe.

          • “Or, circling back to Caesar, maybe it’s stupidity and hubris, but as Caesar himself supposedly said “It’s only hubris if I lose””

            Good comments.

          • You forgot the rational explanation, which is that President Trump is simply a pragmatist. When the NRA tells him that he can safely ban bump stocks with the NRA’s support the way the NRA asked him to do it, why would he not do so?

            It is hard to accept the reality. It is easier to grasp for straws and come up with an impossible explanation. Offering the false choice, moron vs. strategy, isn’t helping your case either.

      • Yes and no. Is there the desire to do so. Sure if you took an opinion poll of senators. But would it be a priority? Not unless there was another mass shooting and then needed to pass some low hanging fruit. In which case by then RBG may be dead and we may have a SCOTUS that would overrule the bump stock ban on the merits. Fingers crossed for SCALIA PART II as a judge.

        • Understand this, if SCOTUS decides the ban was illegal, then bump stocks are suddenly legal again. The media will create a circus, using the NRA’s own language that these “dangerous” devices should be “regulated”. Congress will not waste any time to put a legislative bump stock ban in front of President Trump.

          As for overruling such legislative bump stock ban on the merits, there is that “dangerous and unusual weapons” language from the Heller decision. A legislative bump stock ban will look entirely different than what the ATF did, as Congress can rewrite the law.

  3. Yeah this won’t be heard.
    Like it or not, our system will not defend what the public views as a super dangerous machine gun.

    • The machinegun portion is legally irrelevant. What’s at issue here is if an unelected bureaucracy has the ability to rewrite black letter law by administrative fiat. That’s a HORRIBLE precedent. Even if we leave the 2nd amendment grounds completely alone, it would be a VERY stupid precedent to allow to stand even for the communist wing of the court.

    • You make a gun that shoots fast, and it’s a civil right; make a gun that shoots *too* fast, and everyone loses their minds!

      I applaud FPC for this and I’ll certainly be supporting their effort. But there is a long, and frustratingly consistent pattern of jurisprudence where machine guns are concerned. Not only do rulings never seem to materialize in favor of MG liberation regardless the case, they generally don’t even make sense and largely ignore the arguments supplied by the pro-gun side. Hollis v Lynch/Holder was an excellent example of this, where “black and white” law wasn’t even intentionally misinterpreted to support the state’s position that the MG registry was to remain closed to trusts; they simply ignored it. They weren’t even granted standing to seek detailed discovery pertaining to the administration of the federal registry, which the ATF admits is badly flawed, and which has been found to contain inexplicable entries created *after* the 1986 FOPA cutoff (the Bureau maintains they have the authority to add new post-86 MGs, to ‘disapprove’ already approved forms, but the inability to announce another amnesty that would rectify the innumerable errors known to be in the registry), yet is routinely held up in court as iron-clad proof of a gun owner’s possession of an un-taxed MG.

      • Wait. Let me get this straight. What you are saying is that our federal government does whatever it wants regardless of what the U.S. Constitution or laws say?

        This is my surprised face.

  4. Firearms Policy Coalition NRA et al. Submit Cert. Petition with Supreme Court in Bump Stock Ban Case”

    There’s that typo, again. Get it together, ya’ll.

  5. I’d heard of these things but never wanted one. Just looked like a silly toy to burn up my limited plinking budget and put excessive wear on my gun.

    But I do not like banning things. Books, movies, anything banned over an ideology, that bugs me a lot as an American. That’s why I make a point to read banned books or see banned movies, not that there’s much of that going on anymore in this country.

    So, if bump-stocks return to legality, I want one. Just because it was banned, I want one.

    Curiously, this was my original reason for buying an AR-15 at the first opportunity after the 1994 AWB expired and prices came down. That ban created a massive new firearms industry and raised the AR-15 up from a niche item among very few gun owners to the single most popular gun type in the country.

    Yup, ban the thing, everyone becomes fascinated or outraged even if they did not care at first, and now you have a big pool of potential buyers.

    Funny how that works in a society built upon personal freedom 🙂

    • Same here. The bump stock to me is novel and a great way to burn through ammo, a binary trigger sounds like more fun with more percision shots. But to ban it was bad. As for the AR15, it’s become one of those symbols of freedom.

    • enuf,

      I actually see an incredibly useful application for bump stocks that makes them even more useful that machine guns.

      Suppose you hear what may be the sound of someone breaking into your place of business. So you grab your AR-15 rifle to investigate. Suddenly you see one thief who also sees you and starts shooting at you — and you return the favor and shoot back two quick shots. So far, semi-automatic fire is the preferred mode. And promptly after your two shots of return fire, seven additional thieves pop-up and start shooting at you and advancing on you. Now you IMMEDIATELY want a much higher rate of fire than standard semi-automatic mode and you don’t want to stop your shooting to reach around the receiver and move the “giggle switch” from semi-auto to full auto. With a bump stock, all you have to do to IMMEDIATELY achieve that much higher rate of fire is pull forward with your support hand.

      Are high rates of fire super-duper accurate at 100 yards? Of course not. Are high rates of fire at 25 feet accurate enough to stop seven or eight attackers from advancing on you? Almost certainly!

  6. Imagine if this case knocks off the bump stock ban AND chevron deference at the same time. Fuck the leftists will be crying then.

  7. “would provide an excellent vehicle for the Supreme Court to revisit and eliminate the made-up judicial construct of agency deference” under cases such as Chevron.”

    That’s kind of ironic. The made up doctrine of Judicial Review is to be used to eliminate the made-up judicial construct of agency deference.

    Double secret probation is now in force.

    Honk, honk!

    • And it would become precedent via the made up system of stare decisis if by some miracle we are thrown a bone

  8. Hate to defend the NRA nowadays, but they didn’t advocate a ban of bump stocks, just to move them to the NFA. ( Still a mistake, but I try not to confuse.)
    All that being said, has anyone heard about the compliance numbers, I haven’t. Are there any enforcement efforts that we are aware of?
    How is compliance with the magazine ban of New Jersey going?
    How about New Zealand? Are kiwis lining up to surrender their death sticks?
    When guns are outlawed, only outlaws will have guns. Are we ready to become outlaws?

    • Hate to tell you that you bought into the NRA’s propaganda, hook, line and sinker. Thanks to the 1986 machine gun ban, bump stocks can not be moved to the NFA. The reason why they were banned was because they were classified by the ATF as post-ban machine guns, just what the NRA asked the ATF to do.

      Also, Marion Hammer was very clear on the NRA’s stance on bump stocks: https://www.thetruthaboutguns.com/marion-hammer-nra-never-wanted-legal-machine-guns-bump-fire-stocks/. The NRA leadership never wanted bump stocks to be legal in the first place.

        • “What’s the word on enforcement/ compliance?”

          No reports of arrests and no reports of significant turn-ins. The rest is guess work.

    • So full of shit. Marion Hammer herself (you know, the one person still hanging with Wayne these days) said that bump stocks were automatic conversion devices (they are clearly not by both letter & spirit of the law as well as more than a decade of bureaucratic decision & law) and both she & Wayne have said subsequently that the NRA has never supported civilian ownership of machineguns. The people that proclaimed the exact opposite right before –you guessed it– the 1986 FOPA passage that effectively banned machineguns forever more.

      Fuck the NRA national office, and fuck anyone who still thinks there’s a god damn thing worth defending in that house of worthless, corrupt, sleazy, back-stabbing Fudds. Every dime donated is a dime that is not only not being spent to preserve our rights, but is likely being used to further weaken our position.

      • To Barn Brain who studies with the cows.

        Look Genius I am sure the 58 people slaughtered at the Los Vegas mass shooting will rest easier in their graves knowing their brains were blown out all over the pavement not by a “real machine gun” but a converted assault rifle. I realize of course this is all way over your head as you believe in a totally unregulated Second Amendment with a machine under every pillow and a couple of grenades in your car and of course a missile silo in your garage armed with an atomic war head in case your neighbors dog pisses on your lawn and you need to launch a preemptive nuclear strike.

        • Any by supporting socialism, you endorse slavery & genocide. See, I can play the false equivalency & semantics game, too. You also want to murder everyone good in the world, and feed their corpses to the most lazy, hateful rabble imaginable –see, I can put up ridiculous straw men & knock them down even better than you.

          Your troll game is garbage, get the fuck out of here. When you were a *wee* bit less insufferable, it was fun to Fisk through your bullshit & lay out exactly why everything you say is wrong. Now you’re just annoying.

          If you really are Site Staff or someone else with mod credentials as has been alleged & evidenced, that’s reallll fucked up & dangerous of TTAG to tolerate. If that’s what is going on, eventually it will come out, and that will seriously damage TTAG’s reputation. I can’t imagine our stupid posts & clicks in response to Glad Tapeworm are worth that sort of risk, so I can only guess you aren’t supposed to be here & they simply haven’t figured out who’s hacking them.

  9. No gun ban law is ever overturned by the Courts as its always wildly popular with the general population who does not own guns, fears them and therefore hates them. The Courts rule with public opinion and always have. Its another reason the Constitution was written on soft tissue because its good for wiping your ass with.

    • When he was in high school, the boy experimented with all manner of objects for wiping his bottom. He never did figure out why there was always a roll of toilet paper in the bathroom.

  10. Everyone is missing the point.
    I was asking if anyone knows anything about compliance and enforcement of these bans here and abroad.
    Geez, say anything not damning about the NRA and people everywhere lose their gdamned minds.

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