BLUF
\nIn short, the death of\u00a0Chevron\u00a0may be good for the state of the law as a whole, but it\u2019s not the magic bullet some gun rights commentators seem to think it is.<\/p>\n
Analysis: The Death of Chevron and the Future of Gun Litigation<\/a><\/p>\n Friday brought a rare instance of a no-nonsense Supreme Court decision unambiguously reversing prior precedent in a way that has far-reaching consequences\u2013but maybe not for gun policy.<\/p>\n Loper v. Raimondo<\/i><\/a>\u00a0saw the Court stating, in no uncertain terms, that\u00a0Chevron<\/i>, \u201ca decaying husk with bold pretensions,\u201d is overruled. Twitter\u2013and my email inbox\u2013were ablaze with theories about what this might mean for gun litigation. In all likelihood, though, the impact on Second Amendment cases will be more muted than many expect.<\/p>\n It\u2019s easy to understand why people might think\u00a0Chevron<\/i>\u00a0would have had an outsized impact on the firearm space. After all, it seems as though the ATF\u2013an administrative agency\u2013has been the primary source of tumult for gun owners over the last three administrations. Where an admin agency is the source of pain, it seems natural to presume a legal concept that advantages administrative agencies would be a huge lever in that conflict. But practitioners and astute spectators alike would observe that\u00a0Chevron<\/i>\u00a0hasn\u2019t been invoked in the gun space very often at all.<\/p>\n Simply stated,\u00a0Chevron<\/i>\u2019s death won\u2019t be as dramatic as some commentators expect in the gun law arena largely because the ATF has been\u00a0expressly disclaiming<\/a>\u00a0and attempting to avoid its application for years. Likely knowing\u00a0Chevron<\/i>\u00a0was on shaky ground, and because its application to laws with criminal penalties is inappropriate, the government has fairly consistently simply asserted in gun cases that its legal arguments are ordinary legal arguments rather than agency arguments entitled to deference under\u00a0Chevron<\/i>.<\/p>\n To understand the tension here, it\u2019s important to understand what\u00a0Chevron<\/i>\u00a0actually did. Even when it was at its strongest, the application of\u00a0Chevron<\/i>\u00a0was limited to situations where the statutory provision being litigated over was ambiguous, and there was a \u201cpermissible\u201d agency interpretation. In those instances, the court would defer to the agency\u2019s interpretation of the law, even if the court disagreed with the interpretation.<\/p>\n Chevron<\/i>\u00a0was always controversial, as it was in tension with the core legal principle that courts are the only ones who can say what the law is. That\u2019s why the Supreme Court began walking\u00a0Chevron<\/i>\u00a0back almost as soon as it was decided.<\/p>\n In fact, the Supreme Court hasn\u2019t deferred to an agency interpretation under\u00a0Chevron<\/i>\u00a0since 2016.<\/p>\n More pointedly, though, there is a critical reason you won\u2019t see the government arguing that gun laws are ambiguous, which had always been a threshold question in\u00a0Chevron<\/i>\u00a0cases. Why? Because gun laws almost always involve criminal penalties, and the longstanding rule of lenity states that in cases involving criminal consequences, any ambiguities in the law must be resolved in the least restrictive manner. This would make the road to proper reliance on\u00a0Chevron<\/i>, on the part of the government, a minefield of instant losses.<\/p>\n That is not to say that the death of\u00a0Chevron<\/i>\u00a0won\u2019t have\u00a0any<\/i>\u00a0impact on gun litigation. But it will most likely be more nuanced than revolutionary.<\/p>\n For example, as explained, the ATF has been making its legal arguments for years now by basically saying, \u201cthis is how you ought to read the law, even if you weren\u2019t deferring to us.\u201d Even where\u00a0Chevron<\/i>\u00a0wasn\u2019t\u00a0supposed<\/i>\u00a0to be applied, including in criminal cases, it\u2019s quite likely the overarching idea of\u00a0Chevron<\/i>\u2013that administrative agencies are experts and thus know more about the laws they are tasked with\u2013has poisoned the minds of judges all the way down, manifesting as subconscious deference to the agency\u2019s interpretation of the law.<\/p>\n This vestige of\u00a0Chevron<\/i>\u00a0is probably the most lasting, and unfortunately\u2013as the dissent in\u00a0Loper<\/i>\u00a0makes clear\u2013that idea will be very hard to shake. The simple fact is, though, that no matter how technical a statute is, they are meant to have come through the legislature, which is\u2013for better or for worse\u2013a bunch of lawyers. While nerdy, lobster-clawed science-types at the EPA might have nuanced understandings when it comes to sniffing nitrogen, that doesn\u2019t change the fact that laws have to be consistently interpreted.<\/p>\n In short, the death of\u00a0Chevron<\/i>\u00a0may be good for the state of the law as a whole, but it\u2019s not the magic bullet some gun rights commentators seem to think it is.<\/p>\n","protected":false},"excerpt":{"rendered":" BLUF In short, the death of\u00a0Chevron\u00a0may be good for the state of the law as a whole, but it\u2019s not the magic bullet some gun rights commentators seem to think it is. Analysis: The Death of Chevron and the Future of Gun Litigation Friday brought a rare instance of a no-nonsense Supreme Court decision unambiguously … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,23,24,8],"tags":[],"class_list":["post-102816","post","type-post","status-publish","format-standard","hentry","category-bureaucraps","category-courts","category-rights","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102816","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=102816"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102816\/revisions"}],"predecessor-version":[{"id":102817,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102816\/revisions\/102817"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=102816"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=102816"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=102816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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