The Regulatory Agencies, like the ATF, are part of the Executive Branch. They work for the President, not the Congress, and, unfortunately, not often for the voters. Congress gives the regulatory agencies the power to make REGULATIONS to enforce the LAWS passed by Congress. This process is defined by the Constitution,
So, bump stocks came into use when the ATF, a regulatory agency, decided that the bump stock did not fall under National Firearms Act, Title 26 chapter 53 of the US Code. Title 26 is the Internal Revenue Code.
So The Agency made an interpretation of whether something fit under
the law. The President in completely within his authority to tell his employees their interpretation does not make any sense and they need to change it.
If some one, meeting the necessary requirements of "standing," files suit over the change, it then fall to the Courts to decide if the interpretation of the regulation fits the Congressional intent in passing the Law and if it is Constitutional. They used to teach all that in high school.
I believe bump stocks were allowed under the Obama Administration as an assault on the Second Amendment. They wanted to make gun owners look bad knowing that the odds were some crazy would sooner or later use one criminally and they could scream how we needed new gun laws. Just like when they decided to let guns walk over the border to Mexican Cartels.
It will be interesting to see what the Courts will do with this.
I love the Second Amendment but would personally never own a bump stock. Their manufacturers will probably get sued out of existence on liability issues.
Based on 12 years as a fed inside the beltway involved in reg writing, interpretation and enforcement I disagree.
Federal administrative law is very clear in what authority federal executive branch cognizant agencies have when writing, interpreting and reinterpreting regulations.
Under Chevron Deference an agency can make an interpretation or reinterpretation of a regulation regarding a specific issue only:
1) when the statute is silent on that specific issue; *and*
2) the interpretation or reinterpretation is a reasonable construction of the statute.
Those guard rails are in place to prevent executive branch agencies from effectively writing law, rather than just interpreting it, and holds protects the authority of the legislative branch to make laws.
Just as importantly Chevron Deference was the result of an EPA change in regulations that resulted in civil fines and penalties. It was never intended to be applied to regulatory changes that would result in criminal penalties, particularly for things the defendant has already done.
In those cases with potential criminal liability, such as the NFA and GCA where there are criminal penalties for any violations the Rule of Lenity should apply. The Rule of Lenity holds that any interpretation of statute when writing a reg or subsequent reinterpretation of a regulation must be done in a manner that is most beneficial to a defendant. In other words, if the reg can be interpreted in a way that would make a defendant “not guilty” that’s how it must be interpreted.
That prevents agencies like the ATF from making criminals out of currently law abiding gun owners just by changing the reg. Some agencies, such as the ATF, have been conveniently ignoring this aspect of administrative law.
They refuse to see the distinction between civil and criminal liability, and they refuse to see any ex post facto aspects to the ATF determining a firearm or device is legal, allowing millions to be sold, and then deciding that they are in fact illegal, or must be restricted and registered under the NFA of 1934. They make the assumption that the crime of possession of an illegal or unregistered firearm doesn’t occur until after reinterpreted regulation takes effect, ignoring the fact that the only thing that changed after the person legally bought possessed the firearm was the reinterpretation of the regulation.
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To be clear, the ATF can argue successfully that during the period of time it did so under the Obama administration it had the right and the authority to determine that bump stocks, pistol braces and binary triggers were all legal under the existing regulations.
They did so under a very narrow read of the statute and regulations in each case where they looked at single sentences, phrases, definitions and even single words and determined the devices were legal, without considering the larger over arching concepts in the law.
Does a pistol brace that can be used as a stock circumvent the intent of restricting SBRs in the NFA of 1934? Absolutely.
Similarly does the ability to fore a bump stock rifle repeatedly by just holding pressure on the trigger and letting it cycle and reset against your finger circumvent the intent of the full auto definition in NFA 1934. Again absolutely. (Same with forced reset triggers.)
Similarly, do binary triggers where the rifle fires both on pulling and releasing the trigger violate the intent of NFA 1934. Probably. If not in technicality then in practical rate of fire with these devices.
In each case, the ATF had the ability and the authority to determine these devices fell under the restrictions and prohibitions of the NFA of 1934 using Chevron deference and pointing out the law itself was silent on those specific devices, and that their construction of statute and existing reg was reasonable. If they’d have been challenged in court, they’d have prevailed in each and every case as they would have been well within their authority and the scope of and intent of the law to do so.
Yet instead ATF used very narrow reads of the law and their authority under the concept of Chevron deference to determine each of those items as being legal to buy and possess with no infringement on or involvement with the NFA of 1934. And if the anti gun crowd had challenged them on any of those decisions, the ATF would have prevailed in court.
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However, once the ATF made those regulatory interpretations allowing those devices, they lost the ability to go back and un do those reinterpretations. The difference is that once they said it was ok to buy and possess those items with no restrictions people did just that. When the ATF now tries to back pedal on those decisions they are now making criminals of those legal firearm owners if they fail to take the subsequent required actions forced on them by the rule change. Since the penalties are criminal rather than civil and can and will result in imprisonment for violations, the Rule of Lenity must be applied in place of, or at an absolute minimum prior to Chevron Deference.
Ultimately, that’s what the court cases will hinge on in the Supreme Court, although the court may over rule the ATF on other issues before using that one, as it would have massive effects on the executive branch.
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A larger question is why do federal agencies engage in this kind of regulatory creep and over reach. It’s not because of some conspiracy, it’s actually worse. The reality is that bureaucrats in the federal government see political appointees as “summer help” and they are largely committed to maintaining the status quo and ensuring not much changes under any presidential administration. They are far more susceptible to congressional pressure as those congresspersons stay around for decades and wield the budget axe.
Most of those risk averse career bureaucrats are also trained as lawyers.
It is an unfortunate fact that the central and regional offices of federal cognizant agencies are now infested with a majority of employees who were trained as lawyers (although most of them never took the bar or practiced law). They decided at some point their legal training would be useful in government in terms of writing and interpreting regulations and writing guidance letters and other sub regulatory guidance.
The even more unfortunate fact is that those same legal trained staff almost always have no direct program knowledge or field experience.
They’ve also infested government in sufficient numbers and for a long enough period of time that they are now in middle and upper management and control the hiring process, where they are usually pretty effective at keeping staff with field experience out of the decision making roles in the agency.
In that environment, any field staff or subject matter experts who are present are ignored or marginalized. I was recruited under the Bush administration into an agency badly in need of program improvement. Seven of us were hired in my cohort, all with extensive field experience and subject matter expertise. It was a six month process as they rejected the first hiring list in its entirely and brought in actual subject matter experts to rate the applications in order to actually allow field staff and subject matter experts to rate high enough to be interviewed. Decades of attorneys running the show resulted in HR raters who actually downgraded applications with field experience and subject matter expertise.
Once hired it only took about 18 months for the bureaucrats to kill off the program improvement effort and over time they eventually drove us all out. You get tired of fighting the good fight after 12 years no matter how good the pay. You get to the point that no matter how much good work you might do under the radar and out the back door, you just can’t stand to work for an agency that is so screwed up and unethical in its conduct.
