I like Colion Noir, real name or not.
And I THINK, MAYBE, the ATF might have a significant legal problem here. Call me crazy but this silly, little law is still on the books:
Call me crazy but any law that makes an act criminal that was legal when the act was first accomplished is an ex post facto law within the prohibition of Article 1 of the Constitution.
This could get very interesting and, as I always say, full employment for lawyers!
It doesn’t apply in this case.
An ex post facto law is one that makes something you did before illegal, or makes extends the sentence for a prior conviction longer because a sentencing law changed, or changes the rules of evidence so that you are more likely to be committed for a crime you committed in the past.
However in case like this, owning a braced pistol is not illegal and the proposed rule change won’t change the status of legal ownership now. However once the a,neatly period ends, the rule change will make a braced pistol an SBR and the law that makes owning an unregistered SBR illegal will then apply.
In other words, you won’t be guilty for what you did in the past, you’ll be guilty of violating the new rule going forward.
The ex post facto version of this would be an owner selling his braced pistol now, before the rule takes affect, but then still being charged with having owned an unregistered braced pistol prior to the law taking effect.
——
What does however come into play is whether the Rule of Lenity should be applied instead of, or at least prior to Chevron Deference.
Under Chevron Deference, the ATF (or any federal agency) can make whatever rule changes it wants, provided the issue is not specifically addressed in statute, and provided their construction of their interpretation of statute is reasonable.
In other words in 2013 when the ATF first approved placed pistols, under Chevron deference, they had the latitude to determine braced pistols were legal and not SBRs. That was the case as the NFA of 1934 did not specifically address pistol braces (they were not a thing then) and did not specifically define what makes a stock a stock. As such the ATF was free to decide under a narrow read of the law that a pistol brace was not a stock as long as certain conditions were met.
Similarly, given that pistol braces were not part of NFA of 1934 and that the definition of a stock was vague, the ATF could have taken a more common sense approach and determined that if it looks like a stock and functions like a stock then it’s a stock and a braced pistol must be registered as an SBR. (I’ll argue that action would have been smarter.)
They also had other options.
Given the pretense of a brace making it possible for disabled persons to fire a AR-15 pistol, the ATF could have done something like waiving the tax stamp fee for persons with documented disabilities resulting in hand or arm limitations.
But federal agencies are extremely hesitant to waive any legal requirement and in the case of the tax stamp fee, it’s prescribed in the NFA of 1934. Most federal OGCs will claim their agency has no authority to grant a waiver. Until of course it’s in their interest to do so.
The ATF could have also “educated” congress on:
- the facts and data surrounding the use of SBRs in crimes;
-pointed out short barrel rifle and pistol caliber pistols are less lethal than 16” or longer barrel rifles;
- that AR and AK type pistols are still too large and heavy to be readily concealed and thus are not used my criminals; and
- that SBRs are more accessible to a person with a disability than an AR-15 pistol.
They could have then further “educated” congress on the cost and lack of any real value in continuing to do background checks beyond a NICS check on Form 1 applicants for SBRs. A federal agency cannot suggest or author actual proposed legislation as that would be lobbying, but it can “educate” congress and staffers to the point they fully understand the issue and can write legislation to fix a problem or modernize an antiquated law.
Congress could have then put forward a bill to amend the NFA to de-list SBRs.
But that didn’t happen. Instead ATF used a narrow read of the law, lacking any common sense, to adopt a sub regulatory interpretation of the regulations to allow pistol braces that by any logical common sense interpretation clearly circumvented the SBR provisions of the NFA.
——
The Rule of Lenity is the concept you are thinking of.
Chevron Deference only applies to matters that result in fines or civil penalties. It isn’t supposed to be applied to matters that would result in criminal penalties and imprisonment.
The ATF is using Chevron Deference (again) to try to stuff the braced pistol genie back in the bottle by now changing its interpretation to say braced pistols are in fact SBRs. If it had done that in the first place in 2013 it would have been no harm, no foul.
However, they are doing it after somewhere between 4 million and 20 million of them have been sold and are now in common use. In addition, they are effectively threatening people who do not remove the brace, or modify the braced pistol to a rifle with a minimum 16” barrel, or register it as an SBR, with prosecution under the NFA of 1934 with a possible 10 year prison sentence.
That potential for a felony conviction and prison sentence takes this beyond the scope of Chevron deference. The Rule of Lenity must be applied to any proposed rule change that would result in someone becoming a criminal for doing or possessing something that is legal, that would be come illegal with the re-interpretation of a regulation.
In simple, terms it just means that when the change may result in criminal penalties, the interpretation of the regulation must be down with a strict construction that requires an agency and a court to apply any lack of clarity or ambiguity in the law in the manner that is MOST FAVORABLE to a defendant.
The ATF is working hard to avoid that, as if the Rule of Lenity is found by the court to be applicable to the bump stock or braced pistol matter, it would means any and all rule changes where the change results in someone in possession of a previously legal item now being at risk for a criminal conviction are null and void. That would undermine ATFs entire way or doing business by executive and or agency fiat.
And that’s really the point. Under Chevron deference, the courts have allows executive branch agencies the latitude interpret laws however they want as long as they don’t conflict with clear legislative branch intent - or infringe on the rights of citizens from unfair criminal prosecution.
Under the rule of Lenity, the ATF could not ban bump stocks, pistol braces, reset triggers, binary triggers, suppressor kits, etc,. It would instead have to “educate” congress on the problems it sees with existing laws and then leave it to congress to decide if a change in the law is warranted or not. That would ensure that legislative powers and responsibilities stay with the legislative branch of government, rather than allowing over reach and regulatory creep by executive branch agencies.
I used it as my hunting gun in the thick woods of NC.
