Monthly Archives: June 2024

Constitution, Courts, gun control, Law, SCOTUS

CHEVRON Overturned

While this case, LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, was not about the Second Amendment, it’s still a big win for it.

Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

When SCOTUS tossed the ATF’s unconstitutional bump-stock ban, they called out the ATF for attempting to take the legislative power of Congress. I thought it was a good start, and I looked forward to the Loper Bright ruling.

This decision doesn’t specifically mention “Cheveron deference” (the idea that courts should defer to a federal agency’s interpretation of a law over that of the challenger), but they certainly did not give the ATF deference here. So that’s a good precedent for gun owners challenging other ATF abuses.

The ATF lives for CHEVRON deference. That’s how two copies of the exact same model of semiauto pistol could be a semiauto, while one assembled the very next day is a machinegun. Or 37 mm projectiles are either not destructive devices (loaded with a black powder pyrotechnic charge) or are destructive devices (loaded with a bean bag). Or the magical way Desert Eagle .50s became destructive devices when they changed the method of measuring the bore. Or…

Eh, just read that white paper for more.

For too long, the ATF has relied on Just take our word for it, Your Honor. No more; now they have to prove their psychotic re-interpretations really are Congressional intent. And presumed innocence returns.

On the downside, just as has happened post-BRUEN, it’s going to take a lot of effort to get lower courts to pay attention, and stop granting unconstitutional deference to unelected DC swampcrawlers.

I hope the good attorneys at the Firearms Policy Coalition take a look at this decision and that white paper, and see if they can right some very old wrongs.

Facebooktwitterredditpinteresttumblrmail
Bump-Fire, Constitution, Law, SCOTUS

Repost: SCOTUS Tosses Bump Stock Ban

I originally posted this on my personal blog while TZP was down.

See updates below.

Big news this morning.

Supreme Court Strikes Down Bump Stock Ban
In a 6-3 ruling, the Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority when it issued a rule classifying firearms equipped with bump stocks as machine guns. The case, Garland v. Cargill, challenged the ban enacted following the 2017 Las Vegas concert mass shooting, which it implemented by interpreting a federal law restricting the transfer or possession of machine guns to include bump stocks.

It looks like Clarence Thomas wrote the majority decision, so I’ve got some reading to do. I always enjoy Thomas’ decisions.

It looks like this is primarily based on violation of the Administrative Procedures Act. I tried to tell the ATF just that in my NPRM comments.

I expect I’ll have more on this after I finish reading the decision.

UPDATE: Yes, the ATF violated the APA by exceeding its authority.

Held: ATF exceeded its statutory authority by issuing a Rule that classifies a bump stock as a “machinegun” under §5845(b).

But, Thomas didn’t stop there.

A semiautomatic rifle equipped with a bump stock does not fire more than one shot “by a single function of the trigger.” The phrase “function of the trigger” refers to the mode of action by which the trigger activates the firing mechanism.

A clear, unequivocal, specific ruling that, not only did they exceed their authority, but that bump stocks do not turn firearms into machineguns. As I told them.

In fact, one might almost suspect that Justice Thomas read my NPRM comments. Or maybe my blog.

ATF argues that a shooter using a bump stock must pull the trigger only one time to initiate a bump-firing sequence of multiple shots. This initial trigger pull sets off a sequence—fire, recoil, bump, fire—that allows the weapon to continue firing without additional physical manipulation of the trigger by the shooter. This argument rests on the mistaken premise that there is a difference between the shooter flexing his finger to pull the trigger and pushing the firearm forward to bump the trigger against his stationary trigger.

The law address function of the trigger, not function of the finger. And the off-arm movement needed to make the finger re-engage the trigger is volitional, not an “automatic” function of the firearm.

Thomas included pictures for idiots. But apparently he should have drawn them in crayon for the real morons on the bench.

The dimwitted dissenting Justices — Kagan, Sotomayer, Jackson; go figure — were reduced to this: The ATF says they’re machineguns, therefore…

When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.

Those are the words of overly-emotive panty-pissers incapable of logic.

Added: This decision doesn’t specifically mention “Cheveron deference” (the idea that courts should defer to a federal agency’s interpretation of a law over that of the challenger), but they certainly did not give the ATF deference here. So that’s a good precedent for gun owners challenging other ATF abuses.

Facebooktwitterredditpinteresttumblrmail
authoritarian swine, Constitution, Courts, gun control, Law, Rights, SCOTUS

RAHIMI vs. Red Flags

UNITED STATES v. RAHIMI is in the news with a Supreme Court ruling a few days ago. And the victim disarmament crowd is all over it.

You see, SCOTUS found that someone never convicted of a crime can still lose his Second Amendment rights via a domestic violent prevention order. Associate Justice Thomas dissented. For very good reasons.

Michigan’s Attorney General is one of the people eyeing this ruling with glee.

Nessel says SCOTUS gun ruling confirms constitutionality of Michigan gun laws
“Michigan’s recently passed ERPO [extreme risk protection order] law was modeled after the federal law at issue in the Rahimi case, and the Supreme Court’s decision today only confirms the constitutionality of our own law.”

Not so fast, statist thug.

Rahimi was charged with unlawful firearm possession under 18 U.S. Code § 922(g)(8). An important part of that is this:

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

That’s a problem with Michigan’s ERPO law (“red flag”). Michigan’s law allows ex parte proceedings in which the accused does not receive “actual notice, and at which such person had an opportunity to participate.”

So, no, RAHIMI does not support your unconstitutional “red flag” law.

A lower court had dismissed the charge against Rahimi, based on the BRUEN test of general, historical legal tradition; the court found no early laws analogous to firearm possession bans via protective order. But — compromised? — Chief Justice Roberts, writing for the majority, claims to have found not one, but two such laws.

By the 1700s and early 1800s, though, two distinct legal regimes had developed that specifically addressed firearms violence: the surety laws and the “going armed” laws. Surety laws were a form of “preventive justice,” 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond
[…]
Surety laws could be invoked to prevent all forms of violence, including spousal abuse, and also targeted the misuse of firearms.

Can you spot the subtle difference between a surety bond to prevent a person performing an actual violent act, and a protective order that bans possession of a tool regardless of whether it was used?

Dolly-influenced(?) Roberts couldn’t.

His other example law similarly misses the mark.

The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public provided a mechanism for punishing those who had menaced others with firearms. Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.”

The “going armed” laws were specific to threatening and menacing actions using guns (and other weapons), not the simple possession of those implements.

Roberts missed it by this ……………….. […] ………………….. much. I’m not sure how he missed it, since I figured it out two years ago. Yes, I examined historical surety bonds and such in this very light. Maybe the Fifth Circuit read it, even if Roberts didn’t.

Thomas, dissenting, gets it right, as usual.

To trigger §922(g)(8)’s prohibition, a restraining must bear three characteristics. First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.”

No ex parte proceedings allowed.

Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections.

And Thomas correctly notes that this is a deprivation of rights not triggered by a criminal conviction. Plus…

In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders.

The bans firearm possession, not just threatening or menacing actions. Sometimes it’s like Thomas reads my work as much as I read his. (That’s a joke; I’d be dumbfounded if Thomas knows who I am even if prompted with my name.)

And what does Clarence Thomas think of Roberts’ surety laws argument?

Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment— possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws.

Aha! the outright ban on mere constitutionally protected possession is not analogous, it is a “materially different means.”

Thomas notes that even the prosecution didn’t try to present surety and going armed laws as analagous to 8 U.S. Code § 922(g)(8).

Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.

The Government couldn’t come up with even one, so Roberts invented one for them.

Facebooktwitterredditpinteresttumblrmail
Administrivia

We’re Back!

4 Comments

Sorry about the dead page for the past month.

The short version is:

A WordPress plugin caused WordPress to crash. It crashed so badly that I couldn’t login to WP to kill the bad plugin.

So I tried from the site control panel… but that didn’t give me access to WP functions. I needed a hosting service level login. But I never had that; that was the purview of Jo Ann…

Who passed away.

So I figured I’d go the long way around and fix it with an FTP upload. But I hadn’t had occasion to use FTP in some years, and my login no longer worked; the FTP server name was now invalid.

Sheila got JG, who took over for Brad and Jo Ann at Missouri Bullet company, to help. It took her quite a bit of back and forth with the hosting company, but they finally disabled the troublesome plugin, and…

We’re back!

This would not have happened without JG’s patient help. Thank you very, very much.

Facebooktwitterredditpinteresttumblrmail