CHEVRON | The Zelman Partisans

Oh, boy. Last week, we saw “CHEVRON deference” overturned, eliminating the ATF-abused procedure of requiring judges to take the agency’s word for it when they creatively reinterpret laws.

Today, the Supreme Court took it quite a bit further in CORNER POST. This is a case over debit card merchant transaction fees, so you wonder what it has to do with Second Amendment issues.

Everything. And the EPA is going to hate this, too. Here’s the background.

In 2021, Corner Post joined a suit brought against the Board under the Administrative Procedure Act (APA). The complaint challenged Regulation II on the ground that it allows higher interchange fees than the statute permits. The District Court dismissed the suit as time-barred under 28 U. S. C. §2401(a), the default six-year statute of limitations applicable to suits against the United States. The Eighth Circuit affirmed.

The lower courts held that the statute of limitations clock started ticking the rule was published. An interesting take; imagine claiming that statute of limitations for robbery started running when the law was passed, rather than when the robbery took place.

That matters, because Corner Post didn’t exist when the transaction fee rule was published. Just like you might not have been born when the armed robbery law pass enacted. Corner post was injured when they opened for business and started accepting debit cards. That is when the statute of limitations starts counting down.

Held: An APA claim does not accrue for purposes of §2401(a)’s 6-year statute of limitations until the plaintiff is injured by final agency action.

How does that apply to us and the ATF?

Until 1982, semi-auto firearms that fired from the open bolt were semi-autos. But that year, the ATF suddenly decided that open-bolt firearms are easily converted into machineguns, and thus are machineguns. Unless…

To make it worse, it only applied to those models sold after the ruling, while those sold prior somehow remain semiautomatic. This forced complete redesigns on the manufacturers.

Here we have a rule that is arbitrary, capricious, and in conflict with the law defining “machinegun.”

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

“Restored,” not converted. It had to be a machinegun at some earlier point in its existence. But courts defer to the ATF’s re-definition, and send people to prison over semi-auto “machineguns.”

We got rid of that stupid deference last week. But it still looked like we were stuck with existing stupid, arbitrary, and capricious rules. No more.

Go out and buy one of those open-bolt SM10 machineguns. When you’re told to apply for your tax stamp, sue the ATF over the idiotic rule…

…because you were just now injured by it. And have standing.

tick tick tick tick tick

Every swamp agency’s years-old rules are now ripe for challenging all over again, without deference. I saw a comment at SCOTUSblog to the effect that SCOTUS just guaranteed itself horrendously full dockets for next few years.

Good.

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.