Welcome to sco Discast, a project of the Federalist Society for Law and Public
Policy Studies. Our contributors join us from around the country to bring you expert
commentary on US Supreme Court cases as they are argued and the decisions are issued.
The Federalist Society takes no position on particular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.
I'm your host, Kyle hammernis On behalf of the Faculty division of the
Federalist Society. Today we have a conversation between Stephen Holbrook and moderator Professor Robert
Lyder to discuss Garland versus. Cargill, which was argued before the Supreme Court
on February twenty eighth, twenty twenty four. Professor Lyder is an assistant professor
of law at the George Mason University Antoninscley Law School, where he teaches criminal
law and torts. He writes on the law of self defense, the constitutional
allocation of military power, and gun control. Stephen Hallbrook is a senior Fellow
at the Independent Institute. Steven has argued and won three cases before the Supreme
Court and it's testified before numerous congressional committees. And with that, I like
to turn things over to our moderator, Professor Lighter, to get us started.
Thank you. Hi. I'm Robert Leider. I'm assistant professor here at
Scalaya Law School, and we're going to talk today about Garland versus Cargo.
So the Supreme Court curt arguments in that case, which involves whether bump stocks
are machine guns under the Gun Control Act in the National Firearms Act, and
so, bump stocks are devices that basically harness the recoil energy of the gun
to very very quickly reset the trigger of semi automatic firearms. And what they
do is they allow individuals who are shooting semi automatic firearms to replicate the rates
of fire of true full automatic weapons. And the question here is whether the
devices qualify as machine guns under federal law. And on this the circuit courts
were enormously split. Some judges thought that they clearly qualified under the statute as
machine guns because individuals only had to pull the trigger once and then the gun
did the rest to fire off multiple rounds. Other judges thought that the trigger
reset and that they were clearly not machine guns, and there were judges who
fell in the middle and thought that they were ambiguous. The statute was ambiguous
as applied to these devices, which set off a second interesting jurisprudential split,
with some judges saying that ATF's determination that bump stocks were machine guns was entitled
to chevron defference, and other judges saying, no, this is a criminal
statute and therefore the rule of lenity applies. And so I think, to
me, this case is fascinating because it comes at the intersection of administrative and
criminal law. And with me to discuss the case is Stephen Halbrook, who
is a senior fellow at the Independence Institute. He's also an attorney in private
practice, has extensive experience litigating gun control cases and extensive has written extensively in
this area. In terms of litigation, he's argued three cases before the Supreme
Court, including United States versus Thompson Center Arms Company, which is another case
that involved a classification under the National Firearms Act and involved the intersection of chevron
deference in the rule of Lenedy. And in terms of his academic writings,
has just written a book, America's Rifle, The Case for the ar fifteen.
So Steven welcome, Thank you, Robert glad to be here. This
is such an interesting case. All the definitions in the National Firearms Act of
different kinds of restricted weapons are pose very interesting questions. But this is only
the second civil case the Supreme Court has ever taken about those definitions. The
first case was argued by myself in nineteen ninety two United States versus thompsonsent Our
Arms, and that case had to do with whether a combination of parts that
were intended to be assembled as a pistol or as a rifle with a long
barrel was actually a short bell rifle because it could be assembled that way.
And the Supreme Court held five to four that the statue was ambiguous and therefore
the rule of lenity applied. That that was the plurality opinion by Justice Suitor.
Justice Scalia, joined by Thomas did a concurring opinion, and that made
the five saying that the statute was clear, you don't need to resort to
the rule of luinity, but if it was unclear, they certainly agreed that
it would. Now the rule of lunity goes way back in history. Blackstone's
commentaries talks about the fact that criminal statutes have to be construed strictly. So
if there is an ambiguity in a criminal statute, you interpret it against the
government and in favor of the citizen, or is justice corses likes to say
in favor of liberty And so the funny thing about argument, though, is
that the rule of lenity wasn't mentioned once both sides were trying to convince the
court that the statute is clear, crystal clear. The other side doesn't have
a case and there's no ambiguity, and therefore there was no need to mention
lenity. I'm sure that it's going to be mentioned. And the other strange
thing about what happened with this case by the time it got to the Supreme
Court, if you go back to the rule making, ATF claimed that it
was entitled to Chevron deference, but the government dropped that argument like a hot
potato early on in the litigation. I think because ATF had consistently said bumpstocks
are not machine guns previously, and after the Las Vegas tragedy, the administration
that Trump administration told the Justice Department to adopt a rule basically saying that bumpstocks
and machine guns because of the use of potential use of machine guns in that
tragedy. We don't really know the full facts of that because it's never come
out. But so what AHF did in this litigation was to say it's an
interpretive rule, non electionislative rule. With an interpretive rule, it just tells
you what the agency how they interpret a statute. But if it's electionslative rule,
it's considered to be binding and Chevron difference supplies. I think also the
government made a decision not to argue for Chevron difference because in another case before
the court right now, that doctrine is being questioned and it may be either
done away with or vastly curtailed. So what we end up with is the
government basically saying a bump stock is a machine gun, and that's based on
the clear language of the statute. A machine gun is defined in part as
a weapon that shoots automatically more than one shot without manual reloading by a single
function of the trigger, and the parties have posed the terms automatically and single
function of the trigger as the key terms here. I write occasionally for the
Vullet Conspiracy. It's a blog that's published by Reason magazine. And this morning's
post. If you want to google my name and Vulet conspiracy, you might
want to find it because I've identified several videos that show you the contrast between
an actual machine gun and a bump stock. The first video citation that I
have there. It shows a person holding something like an M sixteen, a
full auto machine gun in one hand, pulling the trigger and it continues continuously
fires without stopping. You could put it on your shoulder, but you're not
making any manual movements. What you're doing is pulling the trigger and that's all.
So there's a single function of the trigger and there's no manual movements.
It's obviously automatic. In the next video, it shows a person with a
bump stock and the person tries to do the same thing. The person that
holds the bump stock with one hand pulls the trigger and how many times do
you think it fires? Once? Only once, because there's something else you
have to do to make a bump stock fire repeatedly, and that's that you
have to put pressure on the forearm or the handguard, So your non trigger
hand has to put pressure continuously forward. And what happens is that the receiver
of the gun rocks back and forth. You have recoil that operates it,
and so you have a combination of manual function. Your finger stays on the
trigger continuously and it rocks back and forth, and that gives the illusion of
full auto fires. So it's very quick. But you notice, going back
to the definition automatically more than one shot with a pull of a single function
of the trigger, there's no reference to speed or or how quickly or fire's
rate of fire. There was a lot of discussion in Yestordy's argument about rate
of fire. But you could have a machine gun. It only fires two
rounds a minute, and if it fit the definition of automatically more than one
shot with a single function of trigger, it would be a machine gun.
So you can get rate of fire out of your mind right away. In
fact, when the Deputy of Solicitor General who began his argument, the very
first two sentences of his argument show that we've got a manual movement going on
when a bump fire is used to fire the weapon, because as he says,
you have to pull the trigger and then you have to maintain to put
for pressure on the handguard and maintain that pressure, and if you let go
of the pressure, it's going to stop firing. So it's only firing one
shot per function of the trigger. So that's what a bump bump fire is.
And when you get into the terms single function of the trigger, we
got into what Justice gorc Is described as fifth grade English, fifth grade grammar,
and he said that you don't function the trigger. You don't use that
term as a verb. You have a single function of trigger. But you
can pull the trigger, and that's a transitive verb if I'm getting this right.
But you can't use this terminology as intransitive verb. And it doesn't make
sense because the government wants to change function the trigger to pull the trigger,
so they can say that a single pull of the trigger by a human makes
it a machine gun. But the other side of that is a single function
of the trigger seems to indicate the mechanical respect where there's a for every shot,
there's a single function of the trigger if it's full auto with continuous fire.
And so it boils down to are we talking about a mechanical attribute?
Are we talking about a human attribute? The government and its rebuttal cited Judge
Hoe from the Fifth Circuit his concurring opinion, where and it was the wrong
guy to site, I think, because he started out his concurring opinion with
the rule of lenity, and he went on to point out how you could
have these two different interpretations of the statute and neither one of them is necessarily
the case, and therefore the rule of luinity applies. You had, i
think eight members of the Fifth Circuit said that, and that was a plurality.
It's a large court said that on the merit, a bump stock is
not a machine gun. But when you add the concurring opinions with that,
you have so many agreeing with the rule of lenity. If all else fells,
then you have construction against the government. It was kind of interesting.
The government really liked the NRA and the argument because in the nineteen thirty four
hearings on the National Firearms Act, NRA President Carl Frederick actually he talked the
House out of a really weird definition of machine gun and drafted a more correct
one which did use the term single function trigger. But in discussing that the
nineteen thirty four legislation, he did prefer to pull the trigger. And so
the government wants to substitute what the NRA president said for the actual words that
are used in the text of the statute, which I find rather humorous.
Now, on this issue of ambiguity and the rule of lunity, we have
differences of opinion. There was a previous case decided last year US versus Wooden
where Justice Kavanaugh said that only if there's a grievous ambiguity do we apply the
rule of lunity, and Justice Gorse It's said or reply to that that you
know, if it's ambiguous and you're subject to a criminal law, I don't
think you care whether it's just ambiguous or previously ambiguous, that the law shouldn't
be applicable to you. So once again, the rule of lending wasn't mentioned
in the argument. I know it's going to be mentioned in the opinion.
You also have the issue of whether there's ever any difference to the government and
a criminal statute. And in the case this case, this is a civil
case, but it has criminal implications. That was also true in the Thompson
Center Arms case that I mentioned previously. If it's a civil case but it's
a criminal statue, you've got to apply the rule of lenity if there's an
ambiguity. So that's where we stood on some of those issues. It also
other devices were mentioned. There was some theoretical devices that were kind of hard
to understand, but there were two in particular that are considered machine guns.
And one was the so called Aichen's accelerator, and that was a device kind
of like a bump stock, except that it had a spring that assists the
going back and forth of the receiver while when it fires, and so it's
got recoil operated, but it functions automatically because of that spring. You don't
have the human factor of having to continually put pressure on the four end or
the handguard. And then there was another device that was cited that was in
the US versus Camp case that came out of the fifth Circuit a few years
ago, and some fellow very innovated had rigged up a fishing reel somehow on
a rifle and rig that up to some kind of electrical source so that all
all you had to do is just started and it was just the gun would
continuously fire. And I can't imagine exactly what it looked like, but that
was held to be a machine gun. So if you see the Camp case
sighted in the transcript of argument, that that's what they're referring to. And
then there was some going back and forth between particularly Kavanaugh, Gorsich, and
the the SG about, first of all, can you prosecute people for a
bump stock when ATF said it's not a machine gun? For years they said
that, and the government lawyer said, well, the statute of limitations is
about to run because it's been almost five years since the Federal Register implemented the
final rule, and so I don't know if any any prosecutions, he said.
And there's also the doctrine of intrama by estoppel, which I was surprised
to hear of that. That's a doctrine that you might not be familiar,
may if you're a criminal lawyer, you might be. And that's where a
if a government official who's authorized to give advice on the subject tells you that
something's lawful, and then it later turns out that the government doesn't consider it
lawful, you can rely on that advice, and that's a defense to a
criminal charge. Estoppable by tryment by estoppel is often pleaded but not accepted very
much in worts, but it is a recognized doctrine, and so the government
lawyer in this case said an old argument yesterday that well, if they prosecute
you, you can argue and trament by estoppel if you were misled by the
previous opinions. But then, so how would you know based on the fact
that ATF previously said one thing and now says something else. And the government
lawyer said, but you've got notice through the Federal Registrar. And so Justice
course, it's made a very funny comment where you said, yeah, right,
gun owners sit around with their dog and their fireplace or whatever, sitting
around late at night for relaxation reading the Federal Registrar. I mean, we
know that doesn't happen. There's plenty of people who don't have notice. And
so it was also brought up, what about the fact that if you're in
the Fifth Circuit, the Fifth Circuit, well that a bumpstock is a non
machine gun. And the government lawyer said, they can prosecute you anyway,
because by the way, they didn't enjoin the statue. They didn't I mean
the regulation, they didn't enjoin it, they didn't vacate it. And so
the regulation stands, and you can prosecute people like in Texas for a bump
stock, even though the Fifth Circuit said it's not a machine gun. So
those are some of the highlights. I mean, it was a really interesting
argument. I love it nowadays that you can listen to it live. It
used to be you had to go to the court and they would give you
a transcript weeks later, and they wouldn't even tell you which justice was asking
which questions. And now you get the transcript the same day. So why
don't I close my open there, Robert and see what we've got? All
right? Thank you? So, I mean, arguments are interesting for different
reasons. Sometimes there's a tremendous fude on the law. Here there was seemingly
tremendous dispute just on the facts of how these things operated. How does a
traditional automatic firearm operate? And what different the trigger on an automatic firearm?
How does it differ from what is happening with a bump stock. Well,
with a true machine gun, your finger pulls the trigger and that's it.
In the classical form, it just fires automatically until it empties the magazine.
During the Vietnam era, the L sixteen was first introduced then, and you
had not much marksmanship, and so you had the phenomenon of soldiers praying and
spraying, so they would just empty all their cartridges out of their magazine that
way, and that gave rise to a selective fire design where it would only
fire three times and then stop, and then you had to release the trigger
and you could pull it back again it would fire three more times. And
so that's the way a machine gun fires. And of course, if it
fires three times automatically without manual reloading by a single function of the trigger,
is still a machine gun. It could even fire just twice, and it
would still be a machine gun, because that's more than one. With a
typical semi automatic, you pull the trigger and then it fires, and that's
it. You have to release your finger from the trigger. The thing the
trigger resets, in other words, goes back forward, and then you have
to pull it again. So there you have one shot, one pull,
one shot. And by the way, there are some machine guns that you
don't just pull the trigger. You push the trigger, like some of the
heavy machine guns you push with both thumbs. These would be heavy machine guns
that are on tripods, for example, like the Maximum or one of those.
So with a bump stock, there's kind of a bridge where the trigger
is and you pull the trigger back once and you maintain pressure on that bridge.
But then you've got to maintain that forward pressure with the non trigger hand
on the handguard, and if you don't do that, it won't continue to
fire. So that's those are the scenarios I've been trying to figure out some
of the justices questions just accord with basic principles of physics, because one of
the arguments, one of the arguments that came up from the SG is there's
no difference between maintaining the continuous rear wood rear word pressure that you would have
to do with a traditional machine gun when you pull the trigger, because if
you release the trigger, the gun will stop, and the continuous forward pressure
that you would have to do with a bump stock. And you know,
their argument was something like, well, you know, when you pull the
trigger on a bump stock, you only pull the trigger once, but I
don't know if that actually works in terms of basic physics. My understanding,
and perhaps you can comment on this, is that the way the bump stock
works is you have to reset the trigger each time, and so the trigger
has to be disengaged, fully reset, and then fully re engage, and
I suppose to do that if you have a six pound trigger pull, your
finger has to maintain six pounds of rear road pressure as the bump stock drives
the gun forward or your arm drives the gun forward to re engage the trigger
a separate time. And so you know it might be happening very fast,
but each time, your finger has to pull the trigger with sufficient force to
re engage the trigger on each shot, which I think is not true with
a traditional machine gun. With a traditional machine gun, I think all you're
doing is keeping in essence the disconnector out of the way. I was wondering
if you could comment on that, right, Robert. So you have your
finger is on the trigger, pulls the trigger, and then your finger is
resting on there's a couple of protrusions that come up, and when you fire
that first shot, and while maintaining that forward pressure on the handguard, the
trigger goes backwards and then it comes forward again, and your finger actually pulls
the trigger again, and just by keeping your finger in that position, the
trigger resets, comes forward, gets pulled again. Because remember the frame or
receiver of the gun, the middle part is going back and forth with these
shot, and so when you maintain the forward pressure and then you keep your
finger in that position, the trigger resets and fires more than once. So
one of the things I have difficulty with is that it might be happening very
fast, but I think you are separately pulling the trigger each time you to
an essence, you know, it's not quite the same as maintaining the rearwood
pressure. But let me move on to some legal questions. So ATF here
had reversed itself. It had for years said that these sort of bump stocks
were not machine guns, and it had done so through a series of classification
letters. And one of my questions is, kind of we're broadly, does
ATF have an administrative law problem that you know, it was an essence kind
of engaging in legislative rules through classification letters. And my question is what are
these classification letters? And how does ATF traditionally regulate because it doesn't issue that
many legislative rules. I don't think, right, how does ATF regulate firearms?
Right? We want to if you're in the regulated industry, like a
gun manufacturer, or if you're a person subject to prosecution, you want to
know what the agency's interpretation of the laway is as applied to facts. And
so the informal way to get a classification of ATF's opinion of the status of
a farm, for example, under the National Firearms Act, is through a
classification letter. Now, when I did the Thompson Center Arms litigation, we
started with having lots of meetings with ATF informal meetings, and we got letters,
and then we got final decisions and then we went to court. And
so that works that way sometimes if you move into litigation. But when you
get an ATF opinion like these early opinion letters, a bumpstock's not a machine
gun. If you're an industry you're manufacturing bump stocks or you're going to buy
a bump stock, you can pretty much rely on those letters. People do
allow on them. You can also have a formal process, which is called
an ATF ruling. For example, after ATF said that they can accelerator is
not a machine gun and change their mind and said that it is a machine
gun, they did a formal ruling. It's kind of like an IRS ruling
where they give you your opinion their opinion of the subject. Now, with
a classification letter, informal, private or a ruling or an interpretive regulation.
You'd better do what comply with what ATF says because you're going to be subject
to prosecution otherwise. It doesn't take a legislative regulation. Like the DC Circuit
in the Goody's case said that, well, ATF argues, this is just
an interpretive regulation, but it's really legislative because if you don't do what they
say, they're going to come after you. So, uh, those are
the different steps. Now. One thing about ATF, and I think it
says something good about ATF. Up until this regulation, they never once tried
to add to what Congress said defining NFA firearms. They didn't do it Entitled
two of the Gun Control like that's the NFA or Title I, which is
regular guns. They have definitions and the regulations repeat what the statute says,
and up until this incident, they never went beyond that language. And what
they did here was to add to that definition of machine gun, the partial
definition I've told you earlier, and then there were some other ones that Congress
or Congress revised the definition of machine gun and sixty eight and then again in
eighty six. But up until this regulation, ATF had never done that and
I mean, I'm kind of proud of them for never doing that before because
it showed that they understood their jurisdiction was limited to what Congress said. I
mean, you can't add to this criminal law. You can go to prison
for a long time for violation the NFA, like for an unregistered NFA firearm.
So then they added this definition, and now they've done three more regulations
where they're basically adding to what Congress has said in the Gun Control Act on
definitions like frame or receiver and pistols with prices, what it means to be
engaged in the business, things like that. So they've really gone overboard in
this administration doing that. Although one of the things ATF has long been of
the position is that you can't take an automatic firearm and lock it to a
semi automatic mode of fire and it would take it out of the category of
being a machine gun. That will not take it out of the category of
being a machine gun. Is that right? That if you had an M
sixteen and you somehow locked it only to semi automatic firearm, Well, I
think they require like the AR fifteen, I think they required to be slightly
redesigned. Oh yeah, it had to be redesigned back in the early sixties.
I've got the original papers between COLT and ATF. It was not called
ATF then but it later was, but their predecessor agency. Where they examined
a different frame or receiver, it had to be redesigned so it wouldn't accept
the automatic seer it was not didn't have the auto ser hole drill. Then
it didn't have the interior of the receiver milled out so you could put in
an auto seer. And so the industry has always worked with ATF in redesigning
receivers. If it starts out to be a machine gun or the other way
around, there has to be different types of receivers there, so you can
use different parts. I mean, some machine gun parts will fit in semi
autos, but they might be parts that have nothing to do with the full
auto function, like a bolt on an A or fifteen is an example.
So yeah, the frames or receivers have to be separate because a machine gun
is to find not just to include a weapon that shoots, but also one
that's designed to shoot or is readily restorable to shoot, or the frame or
receiver of any such weapon. Just a frame or receiver of a machine gun
is a machine gun, and therefore you couldn't take a machine gun and try
to do something to it and to you use the term lock. But there
is a precedent in the DC circuit where that I want to guesst atf Volmer
versus Higgins, which held that you could change a semi auto receiver into a
machine gun receiver and then weld it back into a semi auto receiver, and
therefore they rejected the idea once a machine gun, always a machine gun.
Well, but the reason I'm asking is to me the elephant in the room.
If they say that a bump stock is a machine gun and the AR
fifteen readily accepts the bump stock, could the Biden administration or future administration come
back and say, well, they're designed to be automatic weapons because they are
designed to accept the bump stock, and therefore all AR fifteens currently in circulation
are machine guns. So no, that's not going to happen. And here's
the reason is that all semi automatics are capable of being converted into machine guns.
And that's why in nineteen sixty eight, Congress added the definition of any
combination of parts designed and intended to be used to convert a weapon into a
machine gun. And then in eighty six added a further conversion kit definition that
says any single part designed and intended solely and exclusively to convert a weapon into
a machine gun. So we know it's basic that a semi auto can be
converted into a machine gun with a conversion kit, but it's the conversion kit
that's the machine gun under that definition. I mean, it's kind of funny
to talk about one little part of a machine gun because it's not a weapon,
but that's the definition. And so some of the anti gun lawsuits have
sued the industry and they try to say that, well, this weapon,
because it's an AR fifteen, you can convert it into a machine gun.
Therefore is designed is one. But that's not been accepted by the courts,
and certainly ATF would not accept that. I mean, Congress defines semi automatic
and Title one of the Gun Control Act, and it's not a machine gun.
That everything in ATF's history in terms of differentiating between semi auto's and machine
guns recognizes that clear line of distinction meant Dawn's let me push back a little
bit on this because when you deal with the gun sixteen, the ATF required
them to be redesigned, not to accept the full auto components, before they
would allow them on the civilian market. And if you're saying that the AR
fifteen with the bump stock is a machine gun, why couldn't ATF likewise require
that the AR fifteen be redesigned so that it's not capable of accepting a bump
stock. Well, notice that ATF has not required any semi automatic to be
redesigned, even though it may be capable of installing a conversion kit. So
a bump stock would be kind of the if it really is a machine gun,
it's kind of the equivalent of a conversion kit, a machine gun conversion
kit, which is defined as a machine gun. So this is a physical
object that if you put it on a semi automatic and it converts it into
a machine gun, it's a conversion kit. But that doesn't make the original
semi automatic to be a machine gun design. And so, for example,
there's a so called drop in auto sere for the AR fifteen where you can
install a certain part and you don't have to do any other work, any
machining or kneeling to the receiver for example. But you install this drop in
auto ser and it will fire fill auto. But that's a conversion kit and
that's the machine gun. The machine gun is not the semi automatic. But
look, Robert, you're right. I mean that's been a ledge by the
anti gun litigants, saying that it came up in the litigation in Las Vegas.
Lawsuits were filed by one of the anti gun organizations and they said,
well, an AR fifteen is a machine gun because you can use a bump
stock, and this guy used bump stocks when he massacred those people. But
that case got sidetracked because Nevada had preempted lawsuits against the fire ministry where firearms
work as designed, and so that got dismissed. But they're arguing that in
other cases as well. So yeah, I'm wondering if that's going to get
traction after it, because you know, ATF has required I know the statute
doesn't use the language of readily convertible, but ATF has required the semi automatic
versions of automatic weapons be designed in a way that they're not readily convertible.
And so if you have something like a semi automatic copy of the MP five
submachine gun. You can't just put you know, I think the manufacturer makes
a semi automatic receiver for it, but you can't just install that. You
have to have a different gun, I think under the design prod. And
I have wondered if something similar in a similar move. I don't think the
administration is going to go there quite yet, but there's pressure because of the
inaction in Congress to do more through administrative rule making, and I have wondered
if that's going to be the next frontier saying that anything we can accept a
bump stocks and machine gun. But another thing that didn't come up that I
was surprised about, right there, just one point on that there are ATF
has taken action with. There were guns that came on the market that were
purportedly semi automatic, but you could do one little thing to it and it
would become full auto. And so ATF said, well, they might not
shoot in the present tents automatically, but with a slight change, they would
like removal of a part, for example, and therefore we're going to say
they're designed as machine guns. And so they have done that through the ATF
ruling process. So go ahead and ask your questions. Yeah, no,
That's why I'm wondering if future ATF could come back and say, well,
they're designed to accept a bump stock, so they are designed as machine I
guess we'll see what happens there. Another thing that didn't come up that surprised
me a little bit is the amnesty provisions the National Firearms Act. That one
of the bugs that you could say about doing this through administrative rule making is
that by defining them as machine guns, it ran into the fire Owners Protection
Act of nineteen eighty six, which prohibited the new registration machine guns. And
ordinarily, for example in the pistol Brace rule, when ATF redesignates something,
it often opens an amnesty so that those who have current devices can register them.
And when Congress does this, like in the assault weapons ban in ninety
four, it has grandfathered existing weapons. And here ATF took the rather extraordinary
step not only of declaring them unlawful, but of actually confiscating those that were
in current possession with no provisions for an amnesty. And I was surprised,
and maybe you could comment on that no one brought this up, that by
doing this through administrative rule making, it sort of deprived Congress of the choice
of how to classify them and how to handle existing weapons. Yeah, and
it's once again the extension of a criminal statute by the agency, which they
are not authorized to do. But if you go back to nineteen sixty eight,
originally there were just a few weapons that were NFA firearms, like a
machine gun, Shortbeil shotgun, Shortbeil rifle, and things like that. But
then Congress added destructive devices, for example, and added some other items to
the definitions of NFA firearms. And therefore Congress authorized the Treasury Department at that
time was in charge of ATF, not the Justice Department, and authorized Treasury
to conduct an animesty for a certain period of time, which they did.
And so could you could register not only the new firearms that were accomplished in
the NFA, but you could you could register like machine guns that were unregistered
and they were contraband up until that point. Once they were registered, they
were not contraband anymore. I would argue, if you look at the authorization
given to the agency to conduct amnesties, I think they could do an amnesty
now. They could do one in relation to the pistol braces and that rule
they argue legally they cannot do it, but I think that if you carefully
read the amnesty power, it's never been repealed, and its people have called
for it a number of times, and particularly when something is considered to be
an NFA item and it wasn't before. But one way they've handled that they
back in the Clinton administration they redesignated certain twelve gage shotguns as destructive devices and
they did allow them to be registered, just like they allowed more recently the
pistol braces to be registered as shortbaarrel rifles. But I think they could declare
an ansty or Another power they have is to make a classification non retroactive.
That's through their power, the traditional power and the Treasury Department to make tax
categories non retroactive. And remember the NFA is part of the Internal Revenue Code.
It's Chapter fifty three of the Internal Revenue Code. Based on the power
to tax. That's how it's been uphandld. So there's a lot of flexibility
there that you know could be done, and they refused to do it.
You know. Another thing that surprised me about the argument that you mentioned was
the absence of the rule of lenity but also the complete absence of Chevron,
you know, any mention of Chevron. And it's something about being at the
Supreme Court that is giving me whiplash when you look at what's going on in
the Court of Appeals. You know, in the Court of Appeals, the
lower court judges are saying, often saying here in in other cases, the
statute is ambiguous, and when the statute's ambiguous, we're going to defer to
the expert agency. And then all of a sudden you get up to the
Supreme Court and you have justices who are conflicted about what the statute means,
but none of them will say it's ambiguous, and none of them will differ,
and so Chevron's become something of a lower court doctrine and ambiguity and with
it maybe rule of lenity. But when you got up to the Supreme Court,
they were pretty confident that the statute was clear, at least, you
know, the justices that we're talking, and some of them thought it was
clear in favor of including bump stocks. Justice Alito maybe suggested it was clear
the other way. He was getting a little bit more into the mechanics of
it. But the Court seems to have a very narrow definition at the moment
as to what constitutes ambiguity. I was wondering what your thoughts were on now.
Yeah, up until now, I've litigated a number of cases with ATF,
and invariably they appealed to what I call the divine right of difference.
You know, we had the divine right of kings in the old days,
and now it's like, we're the government, so we're right about what the
law means. Up until this case, they've relied on that, and they,
as I mentioned earlier, they relied on Chevron difference in their commentary to
the final regulations in this case. Then they dropped that like a hot potato.
But when it got to the DC Circuit, that court held against ATFS
argument and said Chevron difference does apply, and it's really a legislative rule,
not an interpretive rule. And so yeah, I mean they acted like the
law is clear, but it got really muddied when you keep having references to
well, it shoots fast, and it shoots lots of bullets, and none
of that's in the definition. And so you have this you know, what
is really the purpose of the statute. And they said, well, we're
not relying on the lections layve history, but we're using legislative history to show
the meaning of the words in nineteen thirty four, and you have a lot
of this piling one of either what could be considered deference or I mean the
Church of the Holy Trinity case even came up where if the satutory text is
clear one way, but it conflicts with Congress's purpose, then you go with
Congress's purpose. And so you've got these other doctrines wishing around and creating confusion.
But the bottom line, when you get down to it, I think
the text is pretty clear, and if you look at how these different kinds
of farms actually operate, I don't think there's any question. The one more
part of the definition that the litigants had neglected here, and that's the part
of definition of machine gun which refers to shoots automatically more than one shot without
manual reloading by a single function of the trigger. I think they could have
used without manual reloading also as part of the challenge, and here's why.
When you maintain that forward pressure on the handguard, that's a form of manual
reloading. If you don't do that, it won't reload, and there's even
discussion in the Federal Registrar about the fact that there are pump shotguns where you
can pull the trigger and you continue to pump it and it will keep firing
as long as you're pumping it. Now, with the bump stock, you're
not making that big of a movement, but you're it's like you're pushing forward.
And so I think the litigants could have made that argument as well as
these other arguments in terms of the other definitions of machine gun, because there's
more than one part to the definition automatically more than one shot without manually loading
by a single function of the trigger. Thank you for listening to this episode
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