Category: Bureaucraps

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So there you are.  A return to the rule of law, being treated as just the opposite.  Par for the course in today’s political discourse, alas.

The Supreme Court, Chevron, and the Political Class’s Worst Nightmare: Accountability.

Goodbye, Chevron deference.  Larry Tribe is already mourning the Supreme Court’s overturning of NRDC v. Chevron, in the Loper Bright and Relentless cases, as a national catastrophe:

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Oh, the humanity!

Well, speaking as a professor of Administrative Law, I think I’ll bear up just fine.  I’ve spent the last several years telling my students that Chevron was likely to be reversed soon, and I’m capable of revising my syllabus without too much trauma.  It’s on a word processor, you know.  As for those academics who have built their careers around the intricacies of Chevron deference, well, now they’ll be able to write about what comes next. And if they’re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.

And that wasn’t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class’s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.

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Sure, Norm, whatever you say.

But how about let’s look at what the Court actually did in Chevron, and in the Loper Bright and Relentlesscases that overturned it, and in SEC v Jarkesy, where the Court held that agencies can’t replace trial by jury with their own administrative procedures, and in Garland. v. Cargill, where the Court held that agencies can’t rewrite statutes via their own regulations.  I don’t think you’ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.

At root, Chevron v. Natural Resources Defense Council is about deference.  Deference is a partial abdication of decisionmaking in favor of someone else.  So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing.  I’ve learned that somehow he always seems to pick the best thing.

Deference doesn’t mean “I’ve heard your argument and I’m persuaded by it,” (though something like that is misleadingly called “Skidmore deference, “ but isn’t actually deference at all).  Deference means “even if I would have decided this question differently, I’m going to go with your judgment instead.”

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What with today’s decision reversing Chevron deference, I see no way that the bureaucrap’s rule on unfinished receivers stands.

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Fortunately, we will not have to wait too long to see if Cargill stands alone or reflects a broader trend of checking ATF claims of authority. On April 22, 2024, the Court granted certiorari in Garland v. VanDerStok, a case challenging the ATF’s “frame or receiver” rule as beyond the scope of the agency’s authority. A decision in VanDerStok will likely come during the Court’s next term.

Garland v. Cargill: The Court’s Textualists Stick to Their Guns

Because it involves guns, Cargill v. Garland has been seen by supporters and opponents alike as a Second Amendment case. That is not really correct. Rather, it presents a question of basic statutory interpretation. And in answering that question, Cargill is a triumph of textualism and separation of powers concerns over purpose-driven interpretation and legislative intent.

For the majority, the words on the paper are what matter, even if the Congress that wrote them might have done things differently. It does not matter if something walks like a duck and quacks like a duck if it doesn’t have the features that Congress used to define a duck.

On the separation of powers front, Cargill is a victory for congressional lawmaking authority. Administrative agencies such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) cannot step in and rewrite statutes by administrative fiat just because Congress is not acting as quickly as they might wish.

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The Dangers of a Desperate Biden Campaign

After Thursday night’s disastrous debate performance, Democrats are officially gameplanning how to get Biden to step aside as the Democratic candidate for president, even though Biden’s surrogates claim he’s not going anywhere. If Biden does decide to stay atop the Democratic ticket, he’s going to be desperate to keep his base of support as intact as possible, and desperate people do dangerous things.

That’s especially true when we’re talking about politicians. So what steps could Biden take between now and November to ensure the gun control lobby spends tens of millions of dollars to promote his doomed candidacy?

We’re not going to see a gun ban or any other gun control bill approved in Congress between now and November. Biden’s options are really limited to executive branch actions, and thankfully the Supreme Court has taken a big step toward reining in executive branch overreach by overturning the Chevron Doctrine. That doesn’t mean, however, that Biden can’t propose new ATF rules, nor does today’s decision prevent the ATF from putting those rules in place. Loper Bright makes it much easier to invalidate agency overreach after the fact, but it won’t stop abuses from being implemented or enforced.

So what, if anything, could Biden do to thrill his anti-gun allies ahead of Election Day? As retired ATF deputy assistant director Pete Forcelli told Bearing Arms just a few days ago, his sources within the agency have informed him that Bidens’ White House Office of Gun Violence Prevention is putting pressure on ATF director Steve Dettelbach to go after Glock by reclassifying the company’s semi-automatic pistols as “machine guns” because of the rise in illegal switches that allow semi-automatic firearms to function as fully automatic arms.

I have heard from some good sources that the White House, and don’t forget that the Office of Gun Violence Prevention is run by Rob Wilcox, who’s formerly from Everytown.

He has a lot of influence at ATF now, and I know that from a number of sources because I didn’t retire from there all that long ago. One of the things they kicked around was trying to force ATF to reclassify Glocks as machine guns, because they’re so easily converted, in their minds, to a machine gun through the use of a switch.

And people within ATF pushed back and Dettelbach didn’t bite into that fishhook and get caught on that… yet. Who knows what happens if the Biden administration has nothing to lose.

I think we’re officially at the stage of Biden not having anything to lose… at least if he doesn’t drop out of his re-election campaign altogether. Dettelach too might be more inclined to go for broke if Biden remains the nominee, knowing that he’ll be removed from his post if Donald Trump wins election.

They also contemplated putting out a ruling to gun manufacturers stating that if you sell to government entities, then you would be prohibited from selling to the civilian markets. So, think about that for a second.

ATF agents use the Glock. If Glock wanted to sign on and sell guns to the ATF or to the military, they would be prohibited from selling to the civilian market. Again, that did not happen, but these are the things that the White House is trying to push the ATF to do. It may be gently now, but once there’s no worry about being re-elected maybe it’s not such a gentle nudge.

Conversely, if there’s a huge worry about being re-elected, then maybe Biden and Dettelbach decide to roll the dice and release this proposed rule as well. Again, desperate times call for desperate measures, and Biden’s reelection bid is in dire straights right now.

Heck, even if Biden does decide to fall on his walker and allow for a candidate who can complete a sentence to replace him as the nominee, he may very well decide to give the gun control lobby these parting gifts before he leaves office. The gun control groups have been very good to him, and I’m sure he’d like to repay the favor while he still has the chance.

Whether Biden remains the Democratic candidate for president or steps aside and allows for a chaotic race to replace him, gun control activists like Wilcox are almost certain to push Biden to go big on their issue between now and Election Day, and it’s crucially important for Second Amendment advocates to keep up with their machinations behind the scenes.

Justices rule for Jan. 6 defendant

https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

The Supreme Court heard oral argument on April 25 on Trump’s claims of immunity and has not yet issued its decision in that case. But Smith has argued that even if the court were to rule for Fischer, the charges against Trump could still go forward because they rested, in part, on efforts to use false electoral certificates at the joint session of Congress.

The law at the center of Fischer’s case is 18 U.S.C. § 1512(c)(2), which makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.” U.S. District Judge Carl Nichols concluded that because the previous subsection, Section 1512(c)(1), bars tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding,” Section 1512(c)(2) only applies to cases involving evidence tampering that obstructs an official proceeding, and he dismissed the obstruction charge against Fischer.

The U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols’ ruling, concluding that the “meaning of the statute is unambiguous,” so that it “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the prior subsection.

On Friday, the Supreme Court vacated the D.C. Circuit’s decision, interpreting the law more narrowly to apply only to evidence tampering.

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Overturning the Chevron Deference Could Mean a Regulatory Revolution

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

Business groups have long argued that federal agencies have too much power in their rulemaking. The Supreme Court agrees.

The Supreme Court on Friday overturned the legal precedent known as the Chevron deference in a 6-3 decision, which will reshape the way that federal agencies interpret laws and craft rules that regulate a wide range of businesses.

For decades, courts have turned to regulatory agencies to fill in the legal gaps when areas of the law are ambiguous–this is the so-called Chevron deference, which emerged from case law.

The Chevron deference resulted from a 1984 case filed by Chevron, a big oil company, which argued that the Environmental Protection Agency’s interpretation of the Clean Air Act was overly broad. Chevron lost the case after a judge found that federal agencies are considered to be the authority on a statute if it’s ambiguous. That decision brought forth the Chevron doctrine, or the Chevron deference.

The high court revisited Chevron through a pair of companion cases: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo.

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SEC v. Jarkesy: A Win for the Separation of Powers and the Right to Civil Jury Trial

The Supreme Court held today that the Seventh Amendment right to a civil jury trial in fraud cases was violated when an administrative law judge of the S.E.C. decided the case.
Chief Justice Robert wrote an excellent, thorough, and overwhelmingly persuasive majority opinion in S.E.C. v. Jarkesy, 603 U.S. __ (2024), holding that the Securities and Exchange Commission could not try civil fraud suits before its own Administrative Law Judges. It must instead try them in federal District Court where the Seventh Amendment right to a civil jury trial must be available in all cases which were “[suits] at common law,” as opposed to suits in equity and in admiralty.

The Supreme Court did today for the Seventh Amendment roughly what it did for the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). It held, in a narrow opinion, that Congress and the President cannot completely ignore the Seventh Amendment, just as they used to completely ignore the Second Amendment before Heller was decided. This is the case at least in civil fraud cases brought by the S.E.C.

The Chief Justice’s opinion was joined by five other justices: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts’ opinion examined originalist, textualist, and doctrinal sources of law. In much of the opinion, Chief Justice Roberts makes an overwhelmingly powerful argument that S.E.C. fraud cases are in the words of the Seventh Amendment “[s]uits at common law” which can only be tried by a jury and not suits in equity or admiralty where the right to jury trial has not historically been available.

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FBI ‘Active Shooter’ Stats Shoot Holes In Biden’s ‘Mass Shooting’ Argument

President Joe Biden, Vice President Kamala Harris, anti-gun legislators and gun-ban groups like to tout the number of mass shootings in America, often saying there have been more mass shootings in the country than there have been days in the year.

Of course, these anti-gun activists are using numbers from the Gun Violence Archives, a website known for using criteria that greatly inflates such numbers. And that’s very easy to see when compared to the just-released Federal Bureau of Investigation report on “active shooter” incidents.

GVA’s “mass shootings” criteria is all events where four or more people are injured in a shooting. These incidents are often drug gang attacks and the like—not at all what Americans think of as mass shootings. In fact, they would include a botched arrest where two cops and two suspects are shot, and even self-defense shootings! By their criteria, they reported 656 mass shootings in 2023.

The FBI, on the other hand, classifies an “active shooter” how most Americans likely envision it—“an individual actively engaged in killing or attempting to kill people in a confined and populated area.” By the FBI’s count, there were 48 active shooter incidents in 2023, only about 7% of the total reported by GVA and constantly regurgitated by politicians and the press.

Of course, President Biden and other gun-ban advocates have full access to the FBI report, but you never hear them talking about it. They prefer the bloated numbers from GVA, even though they aren’t a true picture of what most think of when they hear the word “mass shooting.”

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DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons

Fresh off its victory in Rahimi, the Department of Justice (DOJ) is asking the Supreme Court to clarify who it can disarm under the Second Amendment.

US Solicitor General Elizabeth Prelogar filed a supplemental brief with the High Court on Monday to request that the Justices make the federal felony gun ban their next Second Amendment priority. Specifically, the brief asked for review in five separate appellate court cases dealing with the federal gun ban for felonies of varying severity. She argued such a move was necessary because the Court failed to address the issue in its latest Second Amendment decision.

“Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1) ‘s constitutionality,” the brief reads. “Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The DOJ’s brief is the earliest indication of the legal fallout from the Court’s decision in US v. Rahimi, which upheld the domestic violence restraining order gun ban. It suggests that the federal government is unsatisfied with the Court’s narrow ruling in that case. It is seeking further guidance from the Court that will help lower courts evaluate the extent to which certain felons retain gun rights, something federal circuit courts have been divided over since Bruen.

Instead of providing a sweeping re-evaluation of Bruen, the majority stuck closely to the specific contours of the case against defendant Zachary Rahimi.

“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect,” Chief Justice John Roberts wrote in US v. Rahimi. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

DOJ’s request comes as the High Court considers which of its pending Second Amendment case petitions to grant. The brief’s request for expeditious review could sway the Justices to defer to the federal government’s wishes, as it has often done in past cases.

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The Message Is Plain

There are no property rights in the United States…at least, none that the State deigns to honor.

Do you remember Teresa Ghilarducci? I do. Any American who has a 401(k), an IRA, or some equivalent should know about her and her chief ambition:

     Democrats in the U.S. House have been conducting hearings on proposals to confiscate workers’ personal retirement accounts — including 401(k)s and IRAs — and convert them to accounts managed by the Social Security Administration.
     Triggered by the financial crisis the past two months, the hearings reportedly were meant to stem losses incurred by many workers and retirees whose 401(k) and IRA balances have been shrinking rapidly.
     The testimony of Teresa Ghilarducci, professor of economic policy analysis at the New School for Social Research in New York, in hearings Oct. 7 drew the most attention and criticism. Testifying for the House Committee on Education and Labor, Ghilarducci proposed that the government eliminate tax breaks for 401(k) and similar retirement accounts, such as IRAs, and confiscate workers’ retirement plan accounts and convert them to universal Guaranteed Retirement Accounts (GRAs) managed by the Social Security Administration….
     The current retirement system, Ghilarducci said, “exacerbates income and wealth inequalities” because tax breaks for voluntary retirement accounts are “skewed to the wealthy because it is easier for them to save, and because they receive bigger tax breaks when they do.”…
     All workers would have 5 percent of their annual pay deducted from their paychecks and deposited to the GRA. They would still be paying Social Security and Medicare taxes, as would the employers. The GRA contribution would be shared equally by the worker and the employee. Employers no longer would be able to write off their contributions. Any capital gains would be taxable year-on-year.

Socialists are forever talking about “inequality” (or in their more recent argot, “inequity”) because it affords them a pretext for seizing our money and property in pursuit of their agenda. It’s well established historically that “inequality” increases under socialism, but they’d rather we didn’t notice that. At any rate, they constantly seek rationales under which to “redistribute” what we’ve earned and saved. We must all be equally poor – except for our loving rulers, of course. Anything else would be “unfair!”

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Comment O’ The Day
Are you surprised the gooberment lied in a report? – Jessica J

Citing Fake Mass-Shooting Data, US Surgeon General Declares ‘Gun Violence’ a Public Health Crisis

United States Surgeon General Vivek Murthy declared that “gun violence” constitutes a public health crisis Tuesday but cited fake mass-shooting data from the long-debunked Gun Violence Archive to support his spurious claims.

Murthy presented his finding in a 40-page Surgeon General advisory, titled “Firearm Violence: A Public Health Crisis in America.”

“While mass shooting deaths represent only about 1% of all firearm‑related deaths in the U.S., the number of mass shooting incidents is increasing. According to data published by Gun Violence Archive, the U.S. experienced more than 600 mass shooting incidents each year between 2020 and 2023, compared to an average of less than 400 annual mass shooting incidents between 2015 and 2018,” the Surgeon General’s advisory states.

In his report, Murthy cites data from the Gun Violence Archive more than four times.

Founded in 2013, the GVA quickly became the administration’s source of choice for mass-shooting data because they hype the numbers. The small nonprofit came up with its own extremely broad definition of a mass shooting, which says anytime four or more people are killed or even slightly wounded with a firearm regardless of the circumstances, it’s a mass shooting. For example, according to the GVA there were 417 mass shootings in 2019. The FBI says there were 30, because it uses a much narrower and more realistic definition, which excludes gang-related and drug-related shootings, which the GVA includes in its data.

Murthy is not the only member of the Biden-Harris administration to use fake data from the GVA. Biden and his handlers have cited GVA’s mass-shooting data throughout his presidency in speeches, written statements and social media.

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ATF Whistleblower Applauds Bump Stock Ruling, Warns of Threats Ahead

Retired ATF Deputy Assistant Director Pete Forcelli, who helped blow the whistle on the Operation Fast and Furious gunwalking scandal, tells Bearing Arms the Supreme Court made the right decision in striking down the agency’s ban on bump stocks, but he’s still deeply concerned that the agency is going to continue to be used by the Biden administration as a way to enact new gun control laws without getting Congress involved… especially if Joe Biden gets another four years in office.

The left likes to attack things, and the problem that I have is when the ATF is tasked by the White House or the Justice Department to attack things rather than hold the people responsible [for their crimes]. It’s not an item that causes the damage. It’s the person misusing that item. How many bump stocks have been used in shootings in the United States aside from Las Vegas? I don’t know of any, to be honest.

Of course, the bump stock ban was implemented under Donald Trump’s watch, so the right can look for simplistic solutions as well, especially in the wake of a high-profile shooting like the Route 91 Harvest Festival murders that resulted in 60 deaths and hundreds of injuries. But the Biden administration has used the ATF to do an end-run around Congress on a regular basis; first by targeting unfinished frames and receivers, then pistol stabilizing braces, and most recently gun owners who offer to sell one or more of their firearms from their personal collection.

Those are just the rules the agency has implemented. According to Forcelli, the White House has been demanding even more.

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Even CDC Admits Latest Anti-gun Report is Misleading and Full of Holes

SAF Investigative Journalism Project

Three teenage girls were alone in their Lawrence County, Kentucky home one hot summer day in 2019.

Suddenly, a white car pulled up and two men got out. One man started kicking in the front door. The second suspect circled around to the backyard and began breaking out a window with a shovel. The youngest of the girls, who was 14-years old at the time, found and loaded the family’s 9mm pistol and fired a round at one of the suspects, who both quickly left.

In 2021, a 12-year-old boy armed himself after two masked home invaders broke into his grandmother’s home demanding money. One of the suspects shot the 73-year-old woman, which prompted the youth to return fire in self-defense. Police later found one of the suspects curled up on his side in an intersection near the home. He was transported to a nearby hospital where he was pronounced dead. The grandmother survived her wounds.

In February, a 14-year-old Houston-area teen fired six rounds at an intruder who was trying to break into his home through the front door. Police found the suspect, who was wearing gloves and carrying a backpack, in the front yard where he was pronounced dead.

None of these defensive gun usages or any others were even mentioned in a recent report from the Centers for Disease Control and Prevention, which purported to examine firearm storage data behaviors. Defensive gun usages weren’t the only data set omitted from the report. The CDC needed so many disclosures and disclaimers to tell readers what other data was missing from its research that it’s a miracle the report even was published.

The report, titled “Firearm Storage Behaviors — Behavioral Risk Factor Surveillance System, Eight States, 2021–2022,” was based on telephone interviews. The researchers called the respondents using a “random-digit–dialed landline and mobile telephone survey.” However, the authors immediately encountered four significant problems that limited the validity of their work:

  1. They were unable to determine whether firearms were stored loaded or unloaded during the phone interviews.
  2. They were only able to obtain data from the eight states, which is statistically meaningless.
  3. Some respondents did not want to disclose whether they had a firearm in their home.
  4. All of the data was self-reported to the researchers, and therefore “subject to social desirability and recall biases.”

As a result, the findings were statistical gibberish. In the handful of states that participated, the authors concluded, “18.4% – 50.6% of respondents reported the presence of a firearm in or around their home, and 19.5% – 43.8% of those with a firearm reported that at least one firearm was stored loaded.”

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Yet they are doing exactly that to political opponents at this very moment. Steve Bannon for example.

DOJ Won’t Prosecute Merrick Garland For Contempt of Congress Over Biden Audio Tapes

The Justice Department won’t prosecute Merrick Garland for contempt of Congress over the Biden audio tapes.

The House of Representatives on Thursday voted to hold Merrick Garland in criminal contempt of Congress for defying a subpoena.

Last month two GOP-led House committees passed resolutions recommending US Attorney General Merrick Garland be held in contempt of Congress for refusing to hand over audio of Biden’s interview with Special Counsel Robert Hur.

Merrick Garland has reportedly “classified at the highest level” the audio tapes of Joe Biden’s embarrassing interview with Special Counsel Hur. The tapes have been locked away in a Sensitive Compartmented Information Facility (SCIF), according to investigative journalist Paul Sperry.

6-3 with the 3 dissenters being exactly who you think they’d be.

Bump Stock Ban Tossed Out by Supreme Court in Gun-Rights Win

A divided US Supreme Court dealt a fresh blow to firearm-regulation efforts by throwing out the federal ban on bump stocks, the attachments that let a semiautomatic rifle fire at speeds rivaling a machine gun.

On a 6-3 vote along ideological lines, the justices voided a criminal prohibition put in place by the Trump administration after the 2017 Las Vegas concert massacre, when a man using bump stocks killed 60 people. The attack was the deadliest mass shooting in modern American history.

The case is one of two firearms disputes the court is considering in its 2023-24 term, along with a constitutional clash over the federal gun ban for people subject to domestic-violence restraining orders. The bump-stock fight concerned the reach of a federal statute rather than the Second Amendment, the constitutional provision the court has used to expand gun rights in recent years.

A 1986 law bars most people from owning fully automatic machine guns or parts designed to convert weapons into machine guns. The issue was whether bump stocks meet the law’s definition of machine guns as weapons that can “automatically” discharge more than one shot “by a single function of the trigger.”

“A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does,” Justice Clarence Thomas wrote for the court majority.

Bump stocks replace the standard stock on a rifle — the part that rests against the shooter’s shoulder — with a plastic casing that lets the weapon slide forward and backward. The device harnesses the recoil energy when a shot is fired, causing the gun to slide backward and separate from the trigger finger. The separation lets the firing mechanism reset.

By applying constant forward pressure with the non-trigger hand, the shooter can then force the rifle forward so that it “bumps” the trigger finger, even without moving the finger.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.

“The majority’s artificially narrow definition hamstrings the government’s efforts to keep machineguns from gunmen like the Las Vegas shooter,” Sotomayor wrote for the group. She took the unusual step of reading a summary of her dissent from the bench for emphasis.

The case is Garland v. Cargill, 22-976.

 

Federal Judge Vacates ATF Rule on Pistol Braces

We’re still waiting to see what the Supreme Court does in Rahimi and Cargill, but gun owners did get some very good news from the federal courts on Thursday. A U.S. District Judge in Texas has vacated the ATF’s rule treating pistols equipped with stabilizing braces as short-barreled rifles; granting relief not only for the named plaintiffs involved in the litigation, but for every gun owner across the country who owns a brace.

In his decision, U.S. District Judge Reed O’Connor ruled that the ATF’s rule treating most pistol braces as accessories that turn pistols into SBRs violated the Administrative Procedures Act in a number of ways.

For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy.

“When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016)). “It would be arbitrary and capricious to ignore such matters” Id. But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.

Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles.

The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.” Mock, 75 F.4th at 585 (5th Cir. 2023). In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA exempt braced pistol.” Id. at 575. Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious. R.J. Reynolds Vapor Co. v. FDA, 65 F.4th 182, 191 (5th Cir. 2023) (quoting Encino Motorcars, 579 U.S. at 222).

The Defendants’ disregard for the principles of fair notice and consideration of reliance interests is further exacerbated by its failure to follow the APA’s procedural requirements for public notice and comment. As discussed above, Defendants failed to follow proper notice-and comment procedures because the Proposed Rule and the Final Rule differed in immense ways.

O’Connor also held that the ATF’s final rule on stabilizing braces was “impermissibly vague”, noting that while the ATF developed a worksheet that ostensibly allows gun owners to see if their brace-equipped pistol falls under the rule, the ATF itself still has “complete discretion to use a subjective balancing test to weigh six opaque factors on an invisible scale” to determine the legality of a brace-equipped pistol.

Consequently, the Court finds that the Final Rule’s six factor test is so impermissibly vague that it “provides no meaningful clarity about what constitutes an impermissible stabilizing brace,” and, thus, that “it is nigh impossible for a regular citizen to determine what constitutes a braced pistol” that “requires NFA registration.” Id. at 584–85. Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendants’ Motion for Summary Judgment is DENIED as to this issue.

This is a big win for the Firearms Policy Coalition and their co-plaintiffs in the case, and it should provide some meaningful protection for the immediate future. The DOJ will almost certainly appeal O’Connor’s decision, but Merrick Garland and company aren’t likely to find a lot of allies in support of the rule at the Fifth Circuit Court of Appeals, which would be the next stop for the case. Garland could try to appeal directly to the Supreme Court on the issue, but SCOTUS has been reluctant to hear interlocutory appeals from gun owners in the two years since Bruen, and there’s no guarantee the Court would take up Mock v. Garland before the Fifth Circuit has a chance to weigh in on O’Connor’s decision.

For the time being, the rule is dead. And depending on what the Supreme Court does with the Cargill case, it might not be the only ATF rule to succumb to court scrutiny this week. SCOTUS is scheduled to release more decisions from this term on Friday, and the challenge to the bump stock ban could be among the cases that are decided this week.

Judge Grants Preliminary Injunction Against ATF Rule on Gun Dealers

A federal judge in Texas has granted a preliminary injunction against the ATF’s new rule on who is “engaged in the business” of dealing firearms, but his ruling won’t apply to every gun owner across the country. Instead, U.S. District Judge Matthew J. Kacsmaryk has limited the scope of the injunction solely to the named plaintiffs in the case.

Still, given that those plaintiffs include the states of Texas, Utah, Louisiana, and Mississippi along with Gun Owners of America, the Tennessee Firearms Association, and the Virginia Citizens Defense League, millions of gun owners who could otherwise be subjected to an ATF investigation or federal charges simply for offering a firearm for sale can rest a little easier for the time being.

In his ruling, Kacsmaryk held that the plaintiff’s argument that the new ATF rule violates the Administrative Procedures Act is likely to prevail at trial. According to the judge, the new language from the ATF goes far beyond the small changes in statute that were approved by Congress as part of the Bipartisan Safer Communities Act.

Here, the Final Rule clashes with the text of the BSCA in at least three ways. First, it asserts that there is no “minimum number of firearms to actually be sold to be ‘engaged in the business’” for the purposes of the licensing requirement. . “[A] single firearm transaction”— or even a mere offer to engage in a transaction — may suffice.

[W]hile selling large numbers of firearms or engaging or offering to engage infrequent transactions may be highly indicative of business activity, neither thecourts nor the Department have recognized a set minimum number of firearms purchased or resold that triggers the licensing requirement. Similarly, there is no minimum number of transactions that determines whether a person is “engaged inthe business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.

But the BSCA says otherwise: The term “engaged in the business” means . . .

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person whodevotes time, attention, and labor to dealing in firearms as a regular course of tradeor business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personalcollection or for a hobby, or who sells all or part of his personal collection of firearms[.]

Congress says someone must repeatedly buy and resell firearms to be considered a gun dealer, while the ATF says merely offering a single gun for sale can suffice. Kacsmaryk rightfully held that it’s the language in the statute that matters most, and the agency has likely strayed so far from the text that its rule should be rendered null and void when the case is resolved on the merits.

The judge also took issue with the ATF rule’s suggestion that “actual profit is not a requirement of the statute —it is only the predominant intent to earn a profit through the repetitive purchase and resale of firearms that is required,” pointing out that the current statute states “proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. According to Kacsmaryk, that means that proof of profit is required if the feds want to charge someone with being an unlicensed gun dealer and there are no allegations of criminal activity or terrorism involved.

Lastly, Kacsmaryk found fault with the ATF’s presumptions on “when a person has the intent to ‘predominantly earn a profit’” and “that someone is ‘engaged in the business.’” Under the ATF’s rule, people are presumed to have those intentions unless they can prove otherwise, which the judge says “flip[s] the statute on its head by requiring that firearm owners prove innocence rather than the government prove guilt.”

I wish that the judge would have applied this injunction to all gun owners and not just the named plaintiffs in the case, but this is still a significant victory for those challenging the new rule. Texas v. ATF isn’t the only lawsuit to challenge the ATF rule either, so there’s a good chance that more gun owners will find relief as the other lawsuits move forward in the courts.