Bump-stock bans are okay – for now. That was Justice Neil Gorsuch’s message on March 2, when the Supreme Court denied review for the ban. While agreeing with his colleagues that they should wait to consider a bump-stock case, Gorsuch laid out the problems with the ban in a public statement that proved to be another broadside against courts giving deference to executive agencies, all the while laying the foundation for a future reversal of the bump-stock ban.
Gorsuch v. Chevron
Three years ago, Liberty Nation discussed then-nominee Gorsuch’s distaste of the legal doctrine known as the Chevron deference, and now the justice has fired both barrels at the maxim. Under Chevron, if a regulatory law is not crystal clear, the implementing agency decides what it means and can change the decision at any time for any reason. That may be quite troublesome if a great deal of money is at stake. It’s an untenable assault on liberty if penal interests are.
The good justice himself has just made that case, saying:
“To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, ‘[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.’”
Trump Bump-Stock Ban
On Dec. 26, 2018, the Trump administration declared bump-stocks illegal. In typical use, they replace a factory-equipped rifle stock and allow the user to fire more rapidly. How did the executive branch get the unilateral power to forbid them? As the plaintiff’s brief explains, it changed its “interpretation of the statutory term ‘machinegun’ as used in the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA).” The “expanded definition had the express purpose of encompassing so-called bump-stocks under the definition of machinegun.”
Gorsuch said, “The agency used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it.”
After the administration made the change, several people and groups sued, asking the federal court to stop enforcement of the new rule until the case was heard. That request was denied and then appealed, and that appeal was also denied by the D.C. Circuit Court of Appeals. So, they tried to get the Supreme Court to agree to stop enforcement of the rule until the case was tried. Now we will have to wait for the lower courts to rule, after which the Supreme Court may very well take the case in full.
The loss for Americans’ gun rights isn’t so great with this defeat, because there was no full case considered here in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives. The suit now returns for trial in the District Court. This time it is accompanied by a memo from a Supreme Court justice, telling the lower court he is waiting and watching.
Read more from Scott D. Cosenza.