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Welcome to sco Discast, a project
of the Federalist Society for Law and Public

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Policy Studies. Our contributors join us
from around the country to bring you expert

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commentary on US Supreme Court cases as
they are argued and the decisions are issued.

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The Federalist Society takes no position on
particular legal or public policy issues.

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All expressions are those of the speaker. Hello, and welcome to scot Discast.

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I'm your host, Kyle hammernis On
behalf of the Faculty division of the

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Federalist Society. Today we have a
conversation between Stephen Holbrook and moderator Professor Robert

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Lyder to discuss Garland versus. Cargill, which was argued before the Supreme Court

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on February twenty eighth, twenty twenty
four. Professor Lyder is an assistant professor

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of law at the George Mason University
Antoninscley Law School, where he teaches criminal

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law and torts. He writes on
the law of self defense, the constitutional

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allocation of military power, and gun
control. Stephen Hallbrook is a senior Fellow

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at the Independent Institute. Steven has
argued and won three cases before the Supreme

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Court and it's testified before numerous congressional
committees. And with that, I like

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to turn things over to our moderator, Professor Lighter, to get us started.

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Thank you. Hi. I'm Robert
Leider. I'm assistant professor here at

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Scalaya Law School, and we're going
to talk today about Garland versus Cargo.

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So the Supreme Court curt arguments in
that case, which involves whether bump stocks

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are machine guns under the Gun Control
Act in the National Firearms Act, and

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so, bump stocks are devices that
basically harness the recoil energy of the gun

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to very very quickly reset the trigger
of semi automatic firearms. And what they

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do is they allow individuals who are
shooting semi automatic firearms to replicate the rates

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of fire of true full automatic weapons. And the question here is whether the

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devices qualify as machine guns under federal
law. And on this the circuit courts

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were enormously split. Some judges thought
that they clearly qualified under the statute as

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machine guns because individuals only had to
pull the trigger once and then the gun

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did the rest to fire off multiple
rounds. Other judges thought that the trigger

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reset and that they were clearly not
machine guns, and there were judges who

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fell in the middle and thought that
they were ambiguous. The statute was ambiguous

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as applied to these devices, which
set off a second interesting jurisprudential split,

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with some judges saying that ATF's determination
that bump stocks were machine guns was entitled

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to chevron defference, and other judges
saying, no, this is a criminal

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statute and therefore the rule of lenity
applies. And so I think, to

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me, this case is fascinating because
it comes at the intersection of administrative and

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criminal law. And with me to
discuss the case is Stephen Halbrook, who

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is a senior fellow at the Independence
Institute. He's also an attorney in private

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practice, has extensive experience litigating gun
control cases and extensive has written extensively in

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this area. In terms of litigation, he's argued three cases before the Supreme

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Court, including United States versus Thompson
Center Arms Company, which is another case

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that involved a classification under the National
Firearms Act and involved the intersection of chevron

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deference in the rule of Lenedy.
And in terms of his academic writings,

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has just written a book, America's
Rifle, The Case for the ar fifteen.

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So Steven welcome, Thank you,
Robert glad to be here. This

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is such an interesting case. All
the definitions in the National Firearms Act of

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different kinds of restricted weapons are pose
very interesting questions. But this is only

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the second civil case the Supreme Court
has ever taken about those definitions. The

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first case was argued by myself in
nineteen ninety two United States versus thompsonsent Our

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Arms, and that case had to
do with whether a combination of parts that

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were intended to be assembled as a
pistol or as a rifle with a long

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barrel was actually a short bell rifle
because it could be assembled that way.

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And the Supreme Court held five to
four that the statue was ambiguous and therefore

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the rule of lenity applied. That
that was the plurality opinion by Justice Suitor.

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Justice Scalia, joined by Thomas did
a concurring opinion, and that made

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the five saying that the statute was
clear, you don't need to resort to

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the rule of luinity, but if
it was unclear, they certainly agreed that

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it would. Now the rule of
lunity goes way back in history. Blackstone's

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commentaries talks about the fact that criminal
statutes have to be construed strictly. So

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if there is an ambiguity in a
criminal statute, you interpret it against the

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government and in favor of the citizen, or is justice corses likes to say

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in favor of liberty And so the
funny thing about argument, though, is

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that the rule of lenity wasn't mentioned
once both sides were trying to convince the

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court that the statute is clear,
crystal clear. The other side doesn't have

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a case and there's no ambiguity,
and therefore there was no need to mention

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lenity. I'm sure that it's going
to be mentioned. And the other strange

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thing about what happened with this case
by the time it got to the Supreme

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Court, if you go back to
the rule making, ATF claimed that it

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was entitled to Chevron deference, but
the government dropped that argument like a hot

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potato early on in the litigation.
I think because ATF had consistently said bumpstocks

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are not machine guns previously, and
after the Las Vegas tragedy, the administration

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that Trump administration told the Justice Department
to adopt a rule basically saying that bumpstocks

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and machine guns because of the use
of potential use of machine guns in that

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tragedy. We don't really know the
full facts of that because it's never come

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out. But so what AHF did
in this litigation was to say it's an

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interpretive rule, non electionislative rule.
With an interpretive rule, it just tells

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you what the agency how they interpret
a statute. But if it's electionslative rule,

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it's considered to be binding and Chevron
difference supplies. I think also the

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government made a decision not to argue
for Chevron difference because in another case before

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the court right now, that doctrine
is being questioned and it may be either

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done away with or vastly curtailed.
So what we end up with is the

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government basically saying a bump stock is
a machine gun, and that's based on

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the clear language of the statute.
A machine gun is defined in part as

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a weapon that shoots automatically more than
one shot without manual reloading by a single

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function of the trigger, and the
parties have posed the terms automatically and single

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function of the trigger as the key
terms here. I write occasionally for the

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Vullet Conspiracy. It's a blog that's
published by Reason magazine. And this morning's

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post. If you want to google
my name and Vulet conspiracy, you might

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want to find it because I've identified
several videos that show you the contrast between

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an actual machine gun and a bump
stock. The first video citation that I

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have there. It shows a person
holding something like an M sixteen, a

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full auto machine gun in one hand, pulling the trigger and it continues continuously

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fires without stopping. You could put
it on your shoulder, but you're not

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making any manual movements. What you're
doing is pulling the trigger and that's all.

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So there's a single function of the
trigger and there's no manual movements.

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It's obviously automatic. In the next
video, it shows a person with a

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bump stock and the person tries to
do the same thing. The person that

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holds the bump stock with one hand
pulls the trigger and how many times do

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you think it fires? Once?
Only once, because there's something else you

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have to do to make a bump
stock fire repeatedly, and that's that you

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have to put pressure on the forearm
or the handguard, So your non trigger

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hand has to put pressure continuously forward. And what happens is that the receiver

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of the gun rocks back and forth. You have recoil that operates it,

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and so you have a combination of
manual function. Your finger stays on the

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trigger continuously and it rocks back and
forth, and that gives the illusion of

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full auto fires. So it's very
quick. But you notice, going back

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to the definition automatically more than one
shot with a pull of a single function

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of the trigger, there's no reference
to speed or or how quickly or fire's

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rate of fire. There was a
lot of discussion in Yestordy's argument about rate

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of fire. But you could have
a machine gun. It only fires two

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rounds a minute, and if it
fit the definition of automatically more than one

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shot with a single function of trigger, it would be a machine gun.

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So you can get rate of fire
out of your mind right away. In

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fact, when the Deputy of Solicitor
General who began his argument, the very

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first two sentences of his argument show
that we've got a manual movement going on

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when a bump fire is used to
fire the weapon, because as he says,

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you have to pull the trigger and
then you have to maintain to put

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for pressure on the handguard and maintain
that pressure, and if you let go

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of the pressure, it's going to
stop firing. So it's only firing one

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shot per function of the trigger.
So that's what a bump bump fire is.

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And when you get into the terms
single function of the trigger, we

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got into what Justice gorc Is described
as fifth grade English, fifth grade grammar,

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and he said that you don't function
the trigger. You don't use that

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term as a verb. You have
a single function of trigger. But you

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can pull the trigger, and that's
a transitive verb if I'm getting this right.

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But you can't use this terminology as
intransitive verb. And it doesn't make

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sense because the government wants to change
function the trigger to pull the trigger,

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so they can say that a single
pull of the trigger by a human makes

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it a machine gun. But the
other side of that is a single function

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of the trigger seems to indicate the
mechanical respect where there's a for every shot,

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there's a single function of the trigger
if it's full auto with continuous fire.

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And so it boils down to are
we talking about a mechanical attribute?

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Are we talking about a human attribute? The government and its rebuttal cited Judge

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Hoe from the Fifth Circuit his concurring
opinion, where and it was the wrong

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guy to site, I think,
because he started out his concurring opinion with

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the rule of lenity, and he
went on to point out how you could

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have these two different interpretations of the
statute and neither one of them is necessarily

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the case, and therefore the rule
of luinity applies. You had, i

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think eight members of the Fifth Circuit
said that, and that was a plurality.

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It's a large court said that on
the merit, a bump stock is

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not a machine gun. But when
you add the concurring opinions with that,

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you have so many agreeing with the
rule of lenity. If all else fells,

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then you have construction against the government. It was kind of interesting.

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The government really liked the NRA and
the argument because in the nineteen thirty four

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hearings on the National Firearms Act,
NRA President Carl Frederick actually he talked the

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House out of a really weird definition
of machine gun and drafted a more correct

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one which did use the term single
function trigger. But in discussing that the

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nineteen thirty four legislation, he did
prefer to pull the trigger. And so

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the government wants to substitute what the
NRA president said for the actual words that

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are used in the text of the
statute, which I find rather humorous.

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Now, on this issue of ambiguity
and the rule of lunity, we have

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differences of opinion. There was a
previous case decided last year US versus Wooden

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where Justice Kavanaugh said that only if
there's a grievous ambiguity do we apply the

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rule of lunity, and Justice Gorse
It's said or reply to that that you

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know, if it's ambiguous and you're
subject to a criminal law, I don't

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think you care whether it's just ambiguous
or previously ambiguous, that the law shouldn't

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be applicable to you. So once
again, the rule of lending wasn't mentioned

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in the argument. I know it's
going to be mentioned in the opinion.

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You also have the issue of whether
there's ever any difference to the government and

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a criminal statute. And in the
case this case, this is a civil

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case, but it has criminal implications. That was also true in the Thompson

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Center Arms case that I mentioned previously. If it's a civil case but it's

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a criminal statue, you've got to
apply the rule of lenity if there's an

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ambiguity. So that's where we stood
on some of those issues. It also

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other devices were mentioned. There was
some theoretical devices that were kind of hard

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to understand, but there were two
in particular that are considered machine guns.

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And one was the so called Aichen's
accelerator, and that was a device kind

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of like a bump stock, except
that it had a spring that assists the

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going back and forth of the receiver
while when it fires, and so it's

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got recoil operated, but it functions
automatically because of that spring. You don't

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have the human factor of having to
continually put pressure on the four end or

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the handguard. And then there was
another device that was cited that was in

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the US versus Camp case that came
out of the fifth Circuit a few years

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ago, and some fellow very innovated
had rigged up a fishing reel somehow on

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a rifle and rig that up to
some kind of electrical source so that all

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all you had to do is just
started and it was just the gun would

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continuously fire. And I can't imagine
exactly what it looked like, but that

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was held to be a machine gun. So if you see the Camp case

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sighted in the transcript of argument,
that that's what they're referring to. And

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then there was some going back and
forth between particularly Kavanaugh, Gorsich, and

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the the SG about, first of
all, can you prosecute people for a

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bump stock when ATF said it's not
a machine gun? For years they said

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that, and the government lawyer said, well, the statute of limitations is

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about to run because it's been almost
five years since the Federal Register implemented the

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final rule, and so I don't
know if any any prosecutions, he said.

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And there's also the doctrine of intrama
by estoppel, which I was surprised

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to hear of that. That's a
doctrine that you might not be familiar,

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may if you're a criminal lawyer,
you might be. And that's where a

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if a government official who's authorized to
give advice on the subject tells you that

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something's lawful, and then it later
turns out that the government doesn't consider it

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lawful, you can rely on that
advice, and that's a defense to a

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criminal charge. Estoppable by tryment by
estoppel is often pleaded but not accepted very

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much in worts, but it is
a recognized doctrine, and so the government

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lawyer in this case said an old
argument yesterday that well, if they prosecute

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you, you can argue and trament
by estoppel if you were misled by the

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previous opinions. But then, so
how would you know based on the fact

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that ATF previously said one thing and
now says something else. And the government

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lawyer said, but you've got notice
through the Federal Registrar. And so Justice

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course, it's made a very funny
comment where you said, yeah, right,

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gun owners sit around with their dog
and their fireplace or whatever, sitting

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around late at night for relaxation reading
the Federal Registrar. I mean, we

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know that doesn't happen. There's plenty
of people who don't have notice. And

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so it was also brought up,
what about the fact that if you're in

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the Fifth Circuit, the Fifth Circuit, well that a bumpstock is a non

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machine gun. And the government lawyer
said, they can prosecute you anyway,

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because by the way, they didn't
enjoin the statue. They didn't I mean

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the regulation, they didn't enjoin it, they didn't vacate it. And so

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the regulation stands, and you can
prosecute people like in Texas for a bump

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stock, even though the Fifth Circuit
said it's not a machine gun. So

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those are some of the highlights.
I mean, it was a really interesting

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argument. I love it nowadays that
you can listen to it live. It

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used to be you had to go
to the court and they would give you

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a transcript weeks later, and they
wouldn't even tell you which justice was asking

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which questions. And now you get
the transcript the same day. So why

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don't I close my open there,
Robert and see what we've got? All

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right? Thank you? So,
I mean, arguments are interesting for different

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reasons. Sometimes there's a tremendous fude
on the law. Here there was seemingly

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tremendous dispute just on the facts of
how these things operated. How does a

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traditional automatic firearm operate? And what
different the trigger on an automatic firearm?

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How does it differ from what is
happening with a bump stock. Well,

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with a true machine gun, your
finger pulls the trigger and that's it.

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In the classical form, it just
fires automatically until it empties the magazine.

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During the Vietnam era, the L
sixteen was first introduced then, and you

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had not much marksmanship, and so
you had the phenomenon of soldiers praying and

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spraying, so they would just empty
all their cartridges out of their magazine that

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way, and that gave rise to
a selective fire design where it would only

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fire three times and then stop,
and then you had to release the trigger

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and you could pull it back again
it would fire three more times. And

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so that's the way a machine gun
fires. And of course, if it

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fires three times automatically without manual reloading
by a single function of the trigger,

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is still a machine gun. It
could even fire just twice, and it

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would still be a machine gun,
because that's more than one. With a

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typical semi automatic, you pull the
trigger and then it fires, and that's

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it. You have to release your
finger from the trigger. The thing the

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trigger resets, in other words,
goes back forward, and then you have

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to pull it again. So there
you have one shot, one pull,

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one shot. And by the way, there are some machine guns that you

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don't just pull the trigger. You
push the trigger, like some of the

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heavy machine guns you push with both
thumbs. These would be heavy machine guns

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that are on tripods, for example, like the Maximum or one of those.

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So with a bump stock, there's
kind of a bridge where the trigger

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is and you pull the trigger back
once and you maintain pressure on that bridge.

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But then you've got to maintain that
forward pressure with the non trigger hand

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on the handguard, and if you
don't do that, it won't continue to

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fire. So that's those are the
scenarios I've been trying to figure out some

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of the justices questions just accord with
basic principles of physics, because one of

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the arguments, one of the arguments
that came up from the SG is there's

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no difference between maintaining the continuous rear
wood rear word pressure that you would have

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to do with a traditional machine gun
when you pull the trigger, because if

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you release the trigger, the gun
will stop, and the continuous forward pressure

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that you would have to do with
a bump stock. And you know,

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their argument was something like, well, you know, when you pull the

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trigger on a bump stock, you
only pull the trigger once, but I

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don't know if that actually works in
terms of basic physics. My understanding,

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and perhaps you can comment on this, is that the way the bump stock

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works is you have to reset the
trigger each time, and so the trigger

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has to be disengaged, fully reset, and then fully re engage, and

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I suppose to do that if you
have a six pound trigger pull, your

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finger has to maintain six pounds of
rear road pressure as the bump stock drives

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the gun forward or your arm drives
the gun forward to re engage the trigger

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a separate time. And so you
know it might be happening very fast,

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but each time, your finger has
to pull the trigger with sufficient force to

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re engage the trigger on each shot, which I think is not true with

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a traditional machine gun. With a
traditional machine gun, I think all you're

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doing is keeping in essence the disconnector
out of the way. I was wondering

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if you could comment on that,
right, Robert. So you have your

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finger is on the trigger, pulls
the trigger, and then your finger is

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resting on there's a couple of protrusions
that come up, and when you fire

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that first shot, and while maintaining
that forward pressure on the handguard, the

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trigger goes backwards and then it comes
forward again, and your finger actually pulls

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the trigger again, and just by
keeping your finger in that position, the

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trigger resets, comes forward, gets
pulled again. Because remember the frame or

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receiver of the gun, the middle
part is going back and forth with these

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shot, and so when you maintain
the forward pressure and then you keep your

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finger in that position, the trigger
resets and fires more than once. So

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one of the things I have difficulty
with is that it might be happening very

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fast, but I think you are
separately pulling the trigger each time you to

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an essence, you know, it's
not quite the same as maintaining the rearwood

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pressure. But let me move on
to some legal questions. So ATF here

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had reversed itself. It had for
years said that these sort of bump stocks

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were not machine guns, and it
had done so through a series of classification

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letters. And one of my questions
is, kind of we're broadly, does

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ATF have an administrative law problem that
you know, it was an essence kind

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of engaging in legislative rules through classification
letters. And my question is what are

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these classification letters? And how does
ATF traditionally regulate because it doesn't issue that

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many legislative rules. I don't think, right, how does ATF regulate firearms?

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Right? We want to if you're
in the regulated industry, like a

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gun manufacturer, or if you're a
person subject to prosecution, you want to

287
00:25:56.519 --> 00:26:02.799
know what the agency's interpretation of the
laway is as applied to facts. And

288
00:26:02.880 --> 00:26:10.799
so the informal way to get a
classification of ATF's opinion of the status of

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00:26:10.839 --> 00:26:15.079
a farm, for example, under
the National Firearms Act, is through a

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00:26:15.119 --> 00:26:21.599
classification letter. Now, when I
did the Thompson Center Arms litigation, we

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00:26:21.680 --> 00:26:26.480
started with having lots of meetings with
ATF informal meetings, and we got letters,

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00:26:26.519 --> 00:26:32.440
and then we got final decisions and
then we went to court. And

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so that works that way sometimes if
you move into litigation. But when you

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get an ATF opinion like these early
opinion letters, a bumpstock's not a machine

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gun. If you're an industry you're
manufacturing bump stocks or you're going to buy

296
00:26:48.559 --> 00:26:52.759
a bump stock, you can pretty
much rely on those letters. People do

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00:26:52.799 --> 00:26:56.640
allow on them. You can also
have a formal process, which is called

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an ATF ruling. For example,
after ATF said that they can accelerator is

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00:27:03.640 --> 00:27:07.519
not a machine gun and change their
mind and said that it is a machine

300
00:27:07.559 --> 00:27:12.599
gun, they did a formal ruling. It's kind of like an IRS ruling

301
00:27:12.640 --> 00:27:17.359
where they give you your opinion their
opinion of the subject. Now, with

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00:27:17.480 --> 00:27:23.920
a classification letter, informal, private
or a ruling or an interpretive regulation.

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00:27:25.880 --> 00:27:30.240
You'd better do what comply with what
ATF says because you're going to be subject

304
00:27:30.240 --> 00:27:38.640
to prosecution otherwise. It doesn't take
a legislative regulation. Like the DC Circuit

305
00:27:38.920 --> 00:27:42.400
in the Goody's case said that,
well, ATF argues, this is just

306
00:27:42.440 --> 00:27:47.920
an interpretive regulation, but it's really
legislative because if you don't do what they

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00:27:47.920 --> 00:27:51.480
say, they're going to come after
you. So, uh, those are

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00:27:51.519 --> 00:27:55.920
the different steps. Now. One
thing about ATF, and I think it

309
00:27:56.279 --> 00:28:00.160
says something good about ATF. Up
until this regulation, they never once tried

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00:28:00.200 --> 00:28:07.319
to add to what Congress said defining
NFA firearms. They didn't do it Entitled

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00:28:07.359 --> 00:28:11.680
two of the Gun Control like that's
the NFA or Title I, which is

312
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regular guns. They have definitions and
the regulations repeat what the statute says,

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and up until this incident, they
never went beyond that language. And what

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they did here was to add to
that definition of machine gun, the partial

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00:28:30.799 --> 00:28:33.799
definition I've told you earlier, and
then there were some other ones that Congress

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00:28:34.319 --> 00:28:40.319
or Congress revised the definition of machine
gun and sixty eight and then again in

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00:28:40.359 --> 00:28:48.160
eighty six. But up until this
regulation, ATF had never done that and

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I mean, I'm kind of proud
of them for never doing that before because

319
00:28:52.000 --> 00:28:59.400
it showed that they understood their jurisdiction
was limited to what Congress said. I

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mean, you can't add to this
criminal law. You can go to prison

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00:29:03.720 --> 00:29:07.640
for a long time for violation the
NFA, like for an unregistered NFA firearm.

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So then they added this definition,
and now they've done three more regulations

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00:29:15.400 --> 00:29:21.799
where they're basically adding to what Congress
has said in the Gun Control Act on

324
00:29:22.079 --> 00:29:27.720
definitions like frame or receiver and pistols
with prices, what it means to be

325
00:29:27.799 --> 00:29:33.079
engaged in the business, things like
that. So they've really gone overboard in

326
00:29:33.160 --> 00:29:40.000
this administration doing that. Although one
of the things ATF has long been of

327
00:29:40.000 --> 00:29:44.880
the position is that you can't take
an automatic firearm and lock it to a

328
00:29:44.960 --> 00:29:49.599
semi automatic mode of fire and it
would take it out of the category of

329
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being a machine gun. That will
not take it out of the category of

330
00:29:52.559 --> 00:29:56.039
being a machine gun. Is that
right? That if you had an M

331
00:29:56.079 --> 00:30:00.920
sixteen and you somehow locked it only
to semi automatic firearm, Well, I

332
00:30:00.960 --> 00:30:03.440
think they require like the AR fifteen, I think they required to be slightly

333
00:30:03.519 --> 00:30:08.279
redesigned. Oh yeah, it had
to be redesigned back in the early sixties.

334
00:30:08.319 --> 00:30:14.440
I've got the original papers between COLT
and ATF. It was not called

335
00:30:14.480 --> 00:30:18.440
ATF then but it later was,
but their predecessor agency. Where they examined

336
00:30:18.960 --> 00:30:23.319
a different frame or receiver, it
had to be redesigned so it wouldn't accept

337
00:30:23.480 --> 00:30:30.400
the automatic seer it was not didn't
have the auto ser hole drill. Then

338
00:30:30.400 --> 00:30:36.839
it didn't have the interior of the
receiver milled out so you could put in

339
00:30:36.880 --> 00:30:41.720
an auto seer. And so the
industry has always worked with ATF in redesigning

340
00:30:42.839 --> 00:30:47.160
receivers. If it starts out to
be a machine gun or the other way

341
00:30:47.200 --> 00:30:55.440
around, there has to be different
types of receivers there, so you can

342
00:30:56.039 --> 00:30:59.319
use different parts. I mean,
some machine gun parts will fit in semi

343
00:30:59.400 --> 00:31:02.720
autos, but they might be parts
that have nothing to do with the full

344
00:31:02.759 --> 00:31:06.759
auto function, like a bolt on
an A or fifteen is an example.

345
00:31:07.359 --> 00:31:12.519
So yeah, the frames or receivers
have to be separate because a machine gun

346
00:31:12.720 --> 00:31:17.119
is to find not just to include
a weapon that shoots, but also one

347
00:31:17.119 --> 00:31:21.400
that's designed to shoot or is readily
restorable to shoot, or the frame or

348
00:31:21.480 --> 00:31:25.319
receiver of any such weapon. Just
a frame or receiver of a machine gun

349
00:31:25.359 --> 00:31:30.000
is a machine gun, and therefore
you couldn't take a machine gun and try

350
00:31:30.079 --> 00:31:34.200
to do something to it and to
you use the term lock. But there

351
00:31:34.279 --> 00:31:40.240
is a precedent in the DC circuit
where that I want to guesst atf Volmer

352
00:31:40.359 --> 00:31:45.440
versus Higgins, which held that you
could change a semi auto receiver into a

353
00:31:45.480 --> 00:31:52.359
machine gun receiver and then weld it
back into a semi auto receiver, and

354
00:31:52.480 --> 00:31:55.920
therefore they rejected the idea once a
machine gun, always a machine gun.

355
00:31:56.279 --> 00:31:59.880
Well, but the reason I'm asking
is to me the elephant in the room.

356
00:32:00.319 --> 00:32:04.240
If they say that a bump stock
is a machine gun and the AR

357
00:32:04.359 --> 00:32:08.920
fifteen readily accepts the bump stock,
could the Biden administration or future administration come

358
00:32:08.960 --> 00:32:14.279
back and say, well, they're
designed to be automatic weapons because they are

359
00:32:14.319 --> 00:32:19.720
designed to accept the bump stock,
and therefore all AR fifteens currently in circulation

360
00:32:20.039 --> 00:32:23.240
are machine guns. So no,
that's not going to happen. And here's

361
00:32:23.279 --> 00:32:30.079
the reason is that all semi automatics
are capable of being converted into machine guns.

362
00:32:30.359 --> 00:32:35.079
And that's why in nineteen sixty eight, Congress added the definition of any

363
00:32:35.200 --> 00:32:42.960
combination of parts designed and intended to
be used to convert a weapon into a

364
00:32:43.000 --> 00:32:47.039
machine gun. And then in eighty
six added a further conversion kit definition that

365
00:32:47.640 --> 00:32:54.200
says any single part designed and intended
solely and exclusively to convert a weapon into

366
00:32:54.200 --> 00:33:00.240
a machine gun. So we know
it's basic that a semi auto can be

367
00:33:00.279 --> 00:33:05.279
converted into a machine gun with a
conversion kit, but it's the conversion kit

368
00:33:05.799 --> 00:33:09.119
that's the machine gun under that definition. I mean, it's kind of funny

369
00:33:09.160 --> 00:33:15.000
to talk about one little part of
a machine gun because it's not a weapon,

370
00:33:15.079 --> 00:33:21.400
but that's the definition. And so
some of the anti gun lawsuits have

371
00:33:21.519 --> 00:33:24.200
sued the industry and they try to
say that, well, this weapon,

372
00:33:24.240 --> 00:33:28.680
because it's an AR fifteen, you
can convert it into a machine gun.

373
00:33:28.759 --> 00:33:32.359
Therefore is designed is one. But
that's not been accepted by the courts,

374
00:33:32.400 --> 00:33:37.680
and certainly ATF would not accept that. I mean, Congress defines semi automatic

375
00:33:37.759 --> 00:33:43.680
and Title one of the Gun Control
Act, and it's not a machine gun.

376
00:33:44.759 --> 00:33:50.920
That everything in ATF's history in terms
of differentiating between semi auto's and machine

377
00:33:50.920 --> 00:33:57.799
guns recognizes that clear line of distinction
meant Dawn's let me push back a little

378
00:33:57.799 --> 00:34:01.720
bit on this because when you deal
with the gun sixteen, the ATF required

379
00:34:01.759 --> 00:34:07.680
them to be redesigned, not to
accept the full auto components, before they

380
00:34:07.680 --> 00:34:10.760
would allow them on the civilian market. And if you're saying that the AR

381
00:34:10.840 --> 00:34:16.239
fifteen with the bump stock is a
machine gun, why couldn't ATF likewise require

382
00:34:16.280 --> 00:34:21.679
that the AR fifteen be redesigned so
that it's not capable of accepting a bump

383
00:34:21.719 --> 00:34:27.840
stock. Well, notice that ATF
has not required any semi automatic to be

384
00:34:27.920 --> 00:34:35.199
redesigned, even though it may be
capable of installing a conversion kit. So

385
00:34:35.280 --> 00:34:37.559
a bump stock would be kind of
the if it really is a machine gun,

386
00:34:37.639 --> 00:34:42.239
it's kind of the equivalent of a
conversion kit, a machine gun conversion

387
00:34:42.280 --> 00:34:47.159
kit, which is defined as a
machine gun. So this is a physical

388
00:34:47.159 --> 00:34:52.400
object that if you put it on
a semi automatic and it converts it into

389
00:34:52.400 --> 00:34:54.360
a machine gun, it's a conversion
kit. But that doesn't make the original

390
00:34:54.719 --> 00:35:00.800
semi automatic to be a machine gun
design. And so, for example,

391
00:35:00.840 --> 00:35:05.039
there's a so called drop in auto
sere for the AR fifteen where you can

392
00:35:05.760 --> 00:35:10.719
install a certain part and you don't
have to do any other work, any

393
00:35:10.800 --> 00:35:16.079
machining or kneeling to the receiver for
example. But you install this drop in

394
00:35:16.159 --> 00:35:22.000
auto ser and it will fire fill
auto. But that's a conversion kit and

395
00:35:22.039 --> 00:35:29.440
that's the machine gun. The machine
gun is not the semi automatic. But

396
00:35:30.000 --> 00:35:31.880
look, Robert, you're right.
I mean that's been a ledge by the

397
00:35:31.960 --> 00:35:38.280
anti gun litigants, saying that it
came up in the litigation in Las Vegas.

398
00:35:39.400 --> 00:35:44.960
Lawsuits were filed by one of the
anti gun organizations and they said,

399
00:35:45.000 --> 00:35:47.760
well, an AR fifteen is a
machine gun because you can use a bump

400
00:35:47.760 --> 00:35:54.880
stock, and this guy used bump
stocks when he massacred those people. But

401
00:35:55.079 --> 00:36:04.679
that case got sidetracked because Nevada had
preempted lawsuits against the fire ministry where firearms

402
00:36:04.719 --> 00:36:09.239
work as designed, and so that
got dismissed. But they're arguing that in

403
00:36:09.280 --> 00:36:13.920
other cases as well. So yeah, I'm wondering if that's going to get

404
00:36:14.079 --> 00:36:19.440
traction after it, because you know, ATF has required I know the statute

405
00:36:19.480 --> 00:36:24.440
doesn't use the language of readily convertible, but ATF has required the semi automatic

406
00:36:24.559 --> 00:36:30.719
versions of automatic weapons be designed in
a way that they're not readily convertible.

407
00:36:30.840 --> 00:36:34.239
And so if you have something like
a semi automatic copy of the MP five

408
00:36:34.280 --> 00:36:37.440
submachine gun. You can't just put
you know, I think the manufacturer makes

409
00:36:37.480 --> 00:36:43.039
a semi automatic receiver for it,
but you can't just install that. You

410
00:36:43.119 --> 00:36:45.679
have to have a different gun,
I think under the design prod. And

411
00:36:45.719 --> 00:36:50.440
I have wondered if something similar in
a similar move. I don't think the

412
00:36:50.440 --> 00:36:52.920
administration is going to go there quite
yet, but there's pressure because of the

413
00:36:52.920 --> 00:36:58.519
inaction in Congress to do more through
administrative rule making, and I have wondered

414
00:36:58.559 --> 00:37:00.440
if that's going to be the next
frontier saying that anything we can accept a

415
00:37:00.480 --> 00:37:06.519
bump stocks and machine gun. But
another thing that didn't come up that I

416
00:37:06.599 --> 00:37:12.280
was surprised about, right there,
just one point on that there are ATF

417
00:37:12.320 --> 00:37:15.880
has taken action with. There were
guns that came on the market that were

418
00:37:15.920 --> 00:37:21.039
purportedly semi automatic, but you could
do one little thing to it and it

419
00:37:21.039 --> 00:37:24.159
would become full auto. And so
ATF said, well, they might not

420
00:37:24.280 --> 00:37:29.920
shoot in the present tents automatically,
but with a slight change, they would

421
00:37:30.119 --> 00:37:32.800
like removal of a part, for
example, and therefore we're going to say

422
00:37:32.679 --> 00:37:37.519
they're designed as machine guns. And
so they have done that through the ATF

423
00:37:37.599 --> 00:37:42.559
ruling process. So go ahead and
ask your questions. Yeah, no,

424
00:37:42.679 --> 00:37:45.760
That's why I'm wondering if future ATF
could come back and say, well,

425
00:37:45.800 --> 00:37:50.679
they're designed to accept a bump stock, so they are designed as machine I

426
00:37:50.679 --> 00:37:53.559
guess we'll see what happens there.
Another thing that didn't come up that surprised

427
00:37:53.599 --> 00:38:00.280
me a little bit is the amnesty
provisions the National Firearms Act. That one

428
00:38:00.280 --> 00:38:05.880
of the bugs that you could say
about doing this through administrative rule making is

429
00:38:05.920 --> 00:38:10.000
that by defining them as machine guns, it ran into the fire Owners Protection

430
00:38:10.079 --> 00:38:15.320
Act of nineteen eighty six, which
prohibited the new registration machine guns. And

431
00:38:15.400 --> 00:38:21.920
ordinarily, for example in the pistol
Brace rule, when ATF redesignates something,

432
00:38:22.320 --> 00:38:28.719
it often opens an amnesty so that
those who have current devices can register them.

433
00:38:28.760 --> 00:38:30.960
And when Congress does this, like
in the assault weapons ban in ninety

434
00:38:31.000 --> 00:38:37.920
four, it has grandfathered existing weapons. And here ATF took the rather extraordinary

435
00:38:37.960 --> 00:38:45.280
step not only of declaring them unlawful, but of actually confiscating those that were

436
00:38:45.280 --> 00:38:49.519
in current possession with no provisions for
an amnesty. And I was surprised,

437
00:38:49.519 --> 00:38:53.719
and maybe you could comment on that
no one brought this up, that by

438
00:38:53.760 --> 00:38:58.840
doing this through administrative rule making,
it sort of deprived Congress of the choice

439
00:38:58.880 --> 00:39:02.079
of how to classify them and how
to handle existing weapons. Yeah, and

440
00:39:02.079 --> 00:39:07.119
it's once again the extension of a
criminal statute by the agency, which they

441
00:39:07.119 --> 00:39:12.239
are not authorized to do. But
if you go back to nineteen sixty eight,

442
00:39:12.920 --> 00:39:16.880
originally there were just a few weapons
that were NFA firearms, like a

443
00:39:16.920 --> 00:39:21.480
machine gun, Shortbeil shotgun, Shortbeil
rifle, and things like that. But

444
00:39:21.559 --> 00:39:28.440
then Congress added destructive devices, for
example, and added some other items to

445
00:39:28.639 --> 00:39:35.000
the definitions of NFA firearms. And
therefore Congress authorized the Treasury Department at that

446
00:39:35.039 --> 00:39:38.760
time was in charge of ATF,
not the Justice Department, and authorized Treasury

447
00:39:38.800 --> 00:39:44.679
to conduct an animesty for a certain
period of time, which they did.

448
00:39:45.159 --> 00:39:51.320
And so could you could register not
only the new firearms that were accomplished in

449
00:39:51.360 --> 00:39:55.719
the NFA, but you could you
could register like machine guns that were unregistered

450
00:39:55.760 --> 00:40:00.199
and they were contraband up until that
point. Once they were registered, they

451
00:40:00.199 --> 00:40:06.760
were not contraband anymore. I would
argue, if you look at the authorization

452
00:40:07.000 --> 00:40:12.440
given to the agency to conduct amnesties, I think they could do an amnesty

453
00:40:13.320 --> 00:40:19.199
now. They could do one in
relation to the pistol braces and that rule

454
00:40:19.239 --> 00:40:23.000
they argue legally they cannot do it, but I think that if you carefully

455
00:40:23.039 --> 00:40:29.760
read the amnesty power, it's never
been repealed, and its people have called

456
00:40:29.800 --> 00:40:32.719
for it a number of times,
and particularly when something is considered to be

457
00:40:34.159 --> 00:40:39.400
an NFA item and it wasn't before. But one way they've handled that they

458
00:40:39.960 --> 00:40:46.239
back in the Clinton administration they redesignated
certain twelve gage shotguns as destructive devices and

459
00:40:46.280 --> 00:40:52.159
they did allow them to be registered, just like they allowed more recently the

460
00:40:52.159 --> 00:40:57.719
pistol braces to be registered as shortbaarrel
rifles. But I think they could declare

461
00:40:57.760 --> 00:41:02.920
an ansty or Another power they have
is to make a classification non retroactive.

462
00:41:04.480 --> 00:41:09.639
That's through their power, the traditional
power and the Treasury Department to make tax

463
00:41:10.559 --> 00:41:15.639
categories non retroactive. And remember the
NFA is part of the Internal Revenue Code.

464
00:41:15.639 --> 00:41:20.519
It's Chapter fifty three of the Internal
Revenue Code. Based on the power

465
00:41:20.559 --> 00:41:24.360
to tax. That's how it's been
uphandld. So there's a lot of flexibility

466
00:41:24.400 --> 00:41:30.480
there that you know could be done, and they refused to do it.

467
00:41:32.159 --> 00:41:37.760
You know. Another thing that surprised
me about the argument that you mentioned was

468
00:41:37.840 --> 00:41:43.679
the absence of the rule of lenity
but also the complete absence of Chevron,

469
00:41:43.840 --> 00:41:47.519
you know, any mention of Chevron. And it's something about being at the

470
00:41:47.519 --> 00:41:52.440
Supreme Court that is giving me whiplash
when you look at what's going on in

471
00:41:52.480 --> 00:41:54.960
the Court of Appeals. You know, in the Court of Appeals, the

472
00:41:55.000 --> 00:42:00.119
lower court judges are saying, often
saying here in in other cases, the

473
00:42:00.159 --> 00:42:04.920
statute is ambiguous, and when the
statute's ambiguous, we're going to defer to

474
00:42:05.000 --> 00:42:07.960
the expert agency. And then all
of a sudden you get up to the

475
00:42:07.000 --> 00:42:15.000
Supreme Court and you have justices who
are conflicted about what the statute means,

476
00:42:15.199 --> 00:42:17.480
but none of them will say it's
ambiguous, and none of them will differ,

477
00:42:17.639 --> 00:42:22.880
and so Chevron's become something of a
lower court doctrine and ambiguity and with

478
00:42:22.960 --> 00:42:28.159
it maybe rule of lenity. But
when you got up to the Supreme Court,

479
00:42:28.880 --> 00:42:31.000
they were pretty confident that the statute
was clear, at least, you

480
00:42:31.039 --> 00:42:35.559
know, the justices that we're talking, and some of them thought it was

481
00:42:35.639 --> 00:42:39.719
clear in favor of including bump stocks. Justice Alito maybe suggested it was clear

482
00:42:39.840 --> 00:42:43.559
the other way. He was getting
a little bit more into the mechanics of

483
00:42:43.599 --> 00:42:47.920
it. But the Court seems to
have a very narrow definition at the moment

484
00:42:47.960 --> 00:42:53.039
as to what constitutes ambiguity. I
was wondering what your thoughts were on now.

485
00:42:53.840 --> 00:42:59.880
Yeah, up until now, I've
litigated a number of cases with ATF,

486
00:43:00.039 --> 00:43:05.239
and invariably they appealed to what I
call the divine right of difference.

487
00:43:05.280 --> 00:43:07.960
You know, we had the divine
right of kings in the old days,

488
00:43:07.000 --> 00:43:10.679
and now it's like, we're the
government, so we're right about what the

489
00:43:10.760 --> 00:43:15.519
law means. Up until this case, they've relied on that, and they,

490
00:43:15.920 --> 00:43:21.599
as I mentioned earlier, they relied
on Chevron difference in their commentary to

491
00:43:21.719 --> 00:43:25.280
the final regulations in this case.
Then they dropped that like a hot potato.

492
00:43:25.320 --> 00:43:30.480
But when it got to the DC
Circuit, that court held against ATFS

493
00:43:30.599 --> 00:43:36.719
argument and said Chevron difference does apply, and it's really a legislative rule,

494
00:43:36.840 --> 00:43:43.840
not an interpretive rule. And so
yeah, I mean they acted like the

495
00:43:44.199 --> 00:43:49.960
law is clear, but it got
really muddied when you keep having references to

496
00:43:50.039 --> 00:43:53.400
well, it shoots fast, and
it shoots lots of bullets, and none

497
00:43:53.440 --> 00:43:59.000
of that's in the definition. And
so you have this you know, what

498
00:43:59.159 --> 00:44:01.679
is really the purpose of the statute. And they said, well, we're

499
00:44:01.679 --> 00:44:07.360
not relying on the lections layve history, but we're using legislative history to show

500
00:44:07.119 --> 00:44:12.519
the meaning of the words in nineteen
thirty four, and you have a lot

501
00:44:12.519 --> 00:44:20.119
of this piling one of either what
could be considered deference or I mean the

502
00:44:20.199 --> 00:44:27.039
Church of the Holy Trinity case even
came up where if the satutory text is

503
00:44:27.079 --> 00:44:30.760
clear one way, but it conflicts
with Congress's purpose, then you go with

504
00:44:30.880 --> 00:44:37.039
Congress's purpose. And so you've got
these other doctrines wishing around and creating confusion.

505
00:44:37.159 --> 00:44:40.880
But the bottom line, when you
get down to it, I think

506
00:44:40.920 --> 00:44:46.159
the text is pretty clear, and
if you look at how these different kinds

507
00:44:46.199 --> 00:44:52.159
of farms actually operate, I don't
think there's any question. The one more

508
00:44:52.599 --> 00:44:58.000
part of the definition that the litigants
had neglected here, and that's the part

509
00:44:58.039 --> 00:45:06.400
of definition of machine gun which refers
to shoots automatically more than one shot without

510
00:45:07.159 --> 00:45:10.679
manual reloading by a single function of
the trigger. I think they could have

511
00:45:12.039 --> 00:45:16.840
used without manual reloading also as part
of the challenge, and here's why.

512
00:45:19.639 --> 00:45:27.079
When you maintain that forward pressure on
the handguard, that's a form of manual

513
00:45:27.159 --> 00:45:31.480
reloading. If you don't do that, it won't reload, and there's even

514
00:45:31.559 --> 00:45:37.760
discussion in the Federal Registrar about the
fact that there are pump shotguns where you

515
00:45:37.800 --> 00:45:43.239
can pull the trigger and you continue
to pump it and it will keep firing

516
00:45:43.280 --> 00:45:46.519
as long as you're pumping it.
Now, with the bump stock, you're

517
00:45:46.559 --> 00:45:52.599
not making that big of a movement, but you're it's like you're pushing forward.

518
00:45:52.239 --> 00:45:58.000
And so I think the litigants could
have made that argument as well as

519
00:45:58.039 --> 00:46:01.599
these other arguments in terms of the
other definitions of machine gun, because there's

520
00:46:02.280 --> 00:46:09.000
more than one part to the definition
automatically more than one shot without manually loading

521
00:46:09.159 --> 00:46:14.320
by a single function of the trigger. Thank you for listening to this episode

522
00:46:14.360 --> 00:46:17.960
of SCO Discast. SCO Discast is
a project of the Federalist Society, not

523
00:46:19.079 --> 00:46:24.079
for profit educational organization of conservative and
libertarian law students, law professors, and

524
00:46:24.159 --> 00:46:29.920
lawyers, founded upon the principles that
the state exists to preserve freedom, that

525
00:46:30.000 --> 00:46:32.719
the separation of governmental power is essential
to our constitution, and that it is

526
00:46:32.760 --> 00:46:37.840
emphatically the province and duty of the
judiciary to say what the law is,

527
00:46:37.159 --> 00:46:40.760
not what it should be. Don't
forget to subscribe to our podcast series,

528
00:46:40.960 --> 00:46:45.760
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529
00:46:45.840 --> 00:46:51.519
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530
00:46:51.519 --> 00:46:57.360
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531
00:46:58.119 --> 00:47:07.000
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