NSSF, NRA-ILA file SCOTUS 'friend of court' briefs on ATF bump stock overreach

Both the National Shooting Sports Foundation (NSSF) and National Rifle Association-Institute for Legislative Action (NRA-ILA) have filed amicus briefs with the U.S. Supreme Court regarding the Bureau of Alcohol, Tobacco, Firearms and Explosives' unconstitutional Final Rule on bump stocks.

At issue is the ATF's determination, without congressional action, that bump stocks are "machineguns," despite previously determining on numerous occasions that they were not.

The SCOTUS case is known as Garland v. Cargill — Michael Cargill challenged the ATF's authority in writing laws criminalizing possession of bump stocks as "machineguns."

“No matter what their intent is, ATF does not have the authority to supersede Congress by writing their own criminal law,” Lawrence G. Keane, NSSF senior vice president and general counsel, said in an NSSF post online Jan. 30. “Drafting criminal law through the rule-making process has become a dangerous habit of the Executive Branch that threatens the separation of powers and threatens to relegate the rights guaranteed by the U.S. Constitution as secondary to the whims of bureaucratic authorities. This dangerous precedent must be challenged or we risk surrendering our rights to the administrative state.”

What Keane is referring to is known as the Chevron doctrine, which basically allows unelected federal bureaucrats to create laws by making up rules through loose interpretation.

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As the NSSF previously pointed out, under the Chevron doctrine, the federal judiciary gives deference to federal agencies’ interpretation of the law, and some would argue abdicate their constitutional responsibility to say what the law means. Chevron deference is the lifeblood of the “administrative state.”

A few such cases in various industries are before the high court this year.

The NRA-ILA brief points to the ATF's reversal in its new Final Rule. ATF had determined that bump stocks were not machine guns on 10 previous occasions from 2008 to 2017. But in 2018, ATF announced it would review its regulatory definition of "machinegun," eventually reversing course and classifying bump stocks as "machineguns."

From a Feb. 1 post on the NRA-ILA's website:

“ATF got it wrong,” the brief argues. Congress defined machine gun “based on the trigger’s mechanics, nothing else.” But in reinterpreting “machinegun” ATF “moved the goalposts” and looked to factors beyond the “function of the trigger.” “ATF went off target.”

The question before SCOTUS is how much discretion the ATF has in "interpreting" federal law. The U.S. Court of Appeals' Fifth and Sixth circuits have ruled the ATF does not have the authority to interpret laws it enforces, but the District of Columbia and Tenth circuits have taken a contrary view.

As Fifth Circuit Judge Kurt D. Engelhardt noted in his opinion:

ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control. But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.

From the NRA-ILA article:

The brief argues for the former position: For 200 years, the Supreme Court has consistently held that “the power to create crimes lies exclusively with Congress.” Thus, when criminal liability is on the line, “ATF’s position is ‘not relevant at all.”’

From the NSSF article:

The ATF’s position on bump stocks changed following the 2017 tragedy in Las Vegas when an individual criminally misused firearms, equipped with bump stocks, to attack concertgoers. President Donald Trump vowed to eliminate bump stocks regardless of Congress. The ATF carried out this order with the Final Rule that bypassed Congress and its sole authority to write criminal law by reclassifying bump stocks as “machineguns” and subjecting owners to criminal penalties.

Cargill challenged the ATF’s authority to unilaterally change criminal law through the rule-making process and was unsuccessful at a U.S. District Court and a panel for the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling. However, an en banc rehearing by the full U.S. Court of Appeals for the Fifth Circuit reversed (13-2) the panel’s decision. The Department of Justice (DOJ) petitioned to the U.S. Supreme Court which granted review.

SCOTUS is expected to hear oral arguments in the spring, with the case likely decided before June, when the current term ends.

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