This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.
The ATF Didn’t Quite Give Up on the Bump Stock Case
This week there’s been a huge buzz over the bumpiest stocks of them all. You’ve no doubt seen headlines that the ATF “admitted” it lacked the authority to ban bump stocks by slipping them into the NFA. While it’s absolutely true that the rulemaking was illegal, it’s unfortunately not true that the ATF admitted that. I absolutely hate to harsh a good buzz, but it’s important to cut down to the truth.
The articles centered around this issue link back to a press release on NCLA’s ongoing (and very well-done) bump stock litigation, titled “ATF Admits It Lacked Authority to Issue Legislative Rule, NCLA Condemns the Agency’s Attempt to Ban Bump Stocks Anyway.” I believe the source of this confusion is a mix of the confusing way most lawyers speak, and a general unwillingness to read past an article’s headline before re-posting it.
The press release made no claim that the ATF actually admitted a total lack of authority to issue the bump stock rule, but rather that ATF admitted it lacked authority to engage in “legislative rulemaking.” In the ATF’s own meandering, directionless, and painful-to-read 88-page filing, the ATF does indeed admit that the NFA does not “appear to provide the Attorney General the authority to engage in ‘gap-filling’ interpretations of what qualifies as a ‘machinegun.'”
So there you go, right? The ATF just admitted it can’t engage in legislative rulemaking! Well, minor detail: that admission comes after the ATF spent pages upon pages explaining why, in their view, the rulemaking was “interperative” and not “legislative.”
In fact, right after that “admission,” the ATF continues that “Congress has provided a detailed definition of the term ‘machinegun.'” Basically: the ATF’s [absurd] argument is that the statute’s “best interpretation” includes bump stocks, and thus is not ambiguous, and thus there is no “gap” to fill, and no need to engage in Chevron deference.
NCLA’s view, which I agree with, is the opposite. That this is a “legislative rulemaking,” and the ATF, in banning bump stocks, did something beyond the wording of the statute akin to creating a new law. So, yes, the ATF’s admission that it can’t wholesale write new law is helpful. The only issue is that the ATF’s entire argument is predicated on the rulemaking being anything but that. So it is in no way the ATF ceding a lack of authority.
In short: The ATF is saying “We can’t do X. What we did was Y,” while NCLA and many lawyers, including myself, are arguing that what they did was in fact X.
Annual Gun Rights Policy Conference Concludes in Phoenix
I, along with hundreds of other activists, had the tremendous pleasure of getting to meet some of the greatest minds of our civil rights movement in Phoenix, Arizona this weekend for the 34th annual GRPC. There was a new, refreshing atmosphere of collaboration and coalition-building between various Second Amendment groups in the air, and excellent presentations.
There’s good cause to keep your eyes open and trained on FPC, SAF, CCRKBA, and other 2A-organizations in the coming year. I expect exciting collaboration and real efforts to expand not just the size of our community, but also our scope and reach. Oh, and of course: to win. Next year’s event will be held in Orlando, FL. I can’t recommend that particular city, or the event, enough.
Matthew Larosiere is Director of Legal Policy for the Firearms Policy Coalition.
