Supreme Court

Gorsuch Throws Shade at Trump Administration for Rewriting Federal Gun Laws Without Congressional Approval

“Why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”


After 2017's mass shooting in Las Vegas, Donald Trump vowed to use the powers of the presidency to ban bump stocks, a type of firearm accessory that the shooter reportedly used. "We can do that with an executive order," Trump declared. "I'm going to write the bump stock; essentially, write it out….They're working on it right now, the lawyers."

What the lawyers at the Department of Justice ultimately came up with was a new rule amending "the Bureau of Alcohol, Tobacco, Firearms and Explosives regulations to clarify that [bump-stock-type devices] are 'machineguns' as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968" because "such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger." The federal ban on machine guns, in other words, would now be interpreted by the Trump administration to cover bump stocks too.

"Where was Congress in all of this?" you might ask. "Isn't it the job of the legislative branch—not the executive—to change the meaning of a federal law?" Not according to Trump's Department of Justice. In the final bump stock rule published in the Federal Register, the agency justified its actions by invoking a controversial Supreme Court opinion that says the executive should enjoy broad deference when interpreting the meaning of "ambiguous" federal legislation. "When a court is called upon to review an agency's construction of the statute it administers," the bump stock rule states, "the court looks to the framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc."

Today, Justice Neil Gorsuch threw a little shade at the Trump administration for unilaterally rewriting federal gun laws. "The agency used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite. The law hasn't changed, only an agency's interpretation of it," Gorsuch wrote. "How, in all of this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"

Gorsuch's statement came attached to the Supreme Court's denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. Damien Guedes, who challenged the legality of Trump's bump stock ban, recently lost before the U.S. Court of Appeals for the District of Columbia Circuit, which said the ban was entitled to judicial deference under the Chevron precedent. The Supreme Court today declined to hear Guedes' case.

Gorsuch agreed with that. "Other courts of appeals are actively considering challenges to the same regulation," he wrote, and "before deciding whether to weigh in, we would benefit from hearing their considered judgments." But, he added, waiting for the right case to come along "should not be mistaken for lack of concern."

In fact, Gorsuch suggested, the right case could not come along fast enough. "The law before us carries the possibility of criminal sanctions," Gorsuch wrote. "Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A 'reasonable' prosecutor's say-so is cold comfort in comparison."

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  1. glad to see that Gorsuch isn’t afraid to speak his mind. The sooner we do away with the ATF, the better.

    1. Amen.

      I also want the “AR-15 lowers aren’t firearms” cases to get taken up. Per the actual legal definition, an AR-15 lower is not in fact an actual firearm. No individual part of the AR-15 is, so essentially nothing but assembled guns can legally be regulated.

      There are obvious implications for this, but I want Congress to be forced to reckon with the concept that technical definitions actually matter and if they don’t know what they fuck they’re talking about maybe they should work on that before legislating.

      1. It would be fantastic if the law were actually followed there too, if we ignore the general burying of “shall not infringe”. The lowers/uppers business applies to a lot of other guns too. I’d be on a damned buying spree if that window opened up.

        1. Fuck, if they’re unregulated I’ll start handing em out on Halloween. Forget razor blades, I’m giving away assault weapons.

          If everyone subscribed to this idea the whole “in common use” thing would take on a whole new meaning.

          1. Fuck, if they’re unregulated I’ll start handing em out on Halloween. Forget razor blades, I’m giving away assault weapons.

            I’d put a different check in place every year. The first year, trick-or-treaters that can recite the 2A without error, get a free one. The second year, anyone with a selfie of themselves and The Constitution on their phone gets one. The third year, anyone who can recite the whole BOR… anyone else gets candy or TFO.

            Otherwise, you’re going to get some anti-2A, Antifa dipshit show up and get into a fist fight so that the guy handing out guns gets arrested.

      2. All gun control is unconstitutional. Own whatever Arms you want and have machine guns and armored vehicles like I do.

    2. This worked out well.

      Trump fucked up and gave into gun control people by banning bump stocks. Gorsuch will save Trump from having to repeal that new rule.

      Gorsuch is on the right track and hopefully that includes that all gun control is unconstitutional violation of the 2nd Amendment.

      “…A ‘reasonable’ prosecutor’s say-so is cold comfort in comparison.” I like the jab at Hillary and Comey.

      1. I agree.

        There was too much pressure to do “something,” so Trump did it rather reflexively.

        Best case scenario: SCOTUS takes the case (once ripe), reverses the bump stock ban, and overrules Chevron. Two birds, one stone.

        1. That was implemented March 2018, so Trump might have thought he could calm the hysteria of Lefties. Boy, was he wrong.

          I bet Trump never does thinks that again.

          1. I bet Trump never does thinks that again

            Haha! Trump will continue to ‘does think’ he can appease lefties because he responds to Ivanka.

        2. It wasn’t just reflex, he waited until the NRA gave him all clear to toss bumpstock owners under the bus. So, ultimately, I blame the NRA. I can’t expect Trump to be more pro-gun than the NRA tells him to be, he’s facing constant pressure from the anti-gun side, if the pro gun side tells him it’s OK to cave, what can you expect?

          1. You are right that the NRA gave Trump its blessing before he banned bump stocks.
            This is why I have left both the NRA and the Republican party.
            I had 3 bump stocks and a slightly different device, 2 bump triggers.
            I enjoyed using them for years and brought smiles to anyone I let try them.
            Suddenly, my legally obtained property was a felony to posses!
            Because one person committed mass murder with one.
            I turned in my property to the ATF.
            In the unlikely event they are legalized again, I will buy more of them.
            For now, I am bump firing using my finger only.
            Takes a lot of practice to do it while looking thru the sights.
            Both parties are anti gun.
            We gun owners need to make our votes count by forcing action on national concealed carry and removing suppressors from the NFA

            1. Because one person committed mass murder with one.

              Here is somthing signficnt to ponder:

              there is NOTONE SHRED OF PROOF that killer ACTUALLY used one. I’ve read many reports from folks who have extensive history in the use of both “bump stocks” and fully automatic belt fed ccombat weapons. ALL with such experience have declared that THEY heart at the scene was full auto belt fed combat weapons, NOT bump stocks.
              Further, BATF were denied all access to all the firearms recovered from the 42nd floor “nest”. THEY wanted to run some ballistics and other tests to determine WHICH guns were used, and which were NOT USED. FBI on the scene denied than any access. Nothing.

              This stinks and supports the theory that NO bump stocks were used in that incident.
              We are not only being sold down the rive,r but are aboard a ship that is a figment of someone’s sick imagination.

      2. Trump is a big government New Yorker. He didn’t give in to anything. It’s who he is.

      3. If by gave in you mean crafted an ineffectual regulation likely to be struck down and at the same time removing any backing the Dems were trying to gin up among the squish Republicans in the Senate for additional gun control at the federal level, sure.

      4. I don’t think Trump screwed up. I think he is for gun control. I think the pressure from him comes from the other side, to be lenient on gun ownership.

  2. Neil Gorsuch is the best thing Trump has given us to date. Let’s hope this is the first of many tussles with this administration and all the ones that come after it.

    1. With you on this — Kavanaugh is just another statist with a conservative bent. Trump’s tax cuts are countered by his tax increases, his deregulation is countered by his increased regulation; although still better than the Dem circus clowns who would have no benefits. The only unalloyed good from Trump is his judicial picks and the rapidity with which McConnell pushes them through.

      1. I think Kavanaugh was traumatized by their attacks and is scared to challenge them.

        1. Dunno why he would be scared now. It’s over… when was the last supreme that was removed from office? Mostly they don’t even bother retiring when they are too old to do the job anymore. They just carry on until they drop dead.

          1. But remember, they went after Kavanaugh twice – during the confirmation and late last year. He probably has had enough of accusations that he did something, somewhere, sometime, to someone, who can’t remember the date, or place, or who was there.

          2. Sure, they can’t remove him. But they can make his life a hell of constant accusations of rape. Not everybody is able to shrug off a threat like that.

            1. There were death threats against his family. I can’t for certain say what I would do/would’ve done were I in his shoes, but I can’t guarantee I would’ve stood my ground as well as or the way he has.

    2. Agreed; I long for the day someone like Don Willet or Amy Barrett replaces a long suffering justice who seems to be hanging on out of spite.

      And to see the demise of the Chevron deference.

  3. “This is all very unconstitutional. So much so that we might have to do something in the distant future.”

    1. “Until then people might go to prison, or even have their wives shot in the head by FBI agents while holding their infant children, for conduct that we’d consider legal.”

    2. Court fails to do its job. In other news, the sky is blue. News at 10.

    3. Gorsuch can’t grant cert all by himself. All he can do is complain that not enough justices agreed with him.

      1. Yeah, but he didn’t do that. Notice he’s agreeing with the denial of certiori?

        He just took the occasion to complain about Chevron deference. Not, you know, confiscation of lawfully acquired property without compensation. Or an agency ‘interpretation’ that flatly contradicts the language of the law being ‘interpreted’, on a “black is white” level. Or people being threatened with jail time for exercising a civil liberty.

        Just the Chevron deference, and not his fellow Justices’ decision to let these wrongs continue. Because THAT he agreed with them on.

        I’m now very pessimistic about 2nd amendment cases that might reach the Court. This case was, on a legal level, a slam dunk, a no brainer. And they still ducked it.

        If a case comes where they’ve got the tiniest sliver of an excuse to uphold a violation of the 2nd amendment, what are they going to do, if they haven’t the guts to take a case where that sliver is missing?

  4. So even ‘our savior’ doesn’t understand “shall not be infringed”.
    Oh, well.

    1. Perhaps Gorsuch is easing America into the reality via constitutional incrementalism?

      Im with you, the courts need to slap down all gun control laws for the unconstitutional infringement that they are.

  5. How, in all of this, can ordinary citizens be expected to keep up…

    Who the hell gives a fuck about ordinary citizens?

  6. >>executive should enjoy broad deference when interpreting the meaning of “ambiguous” federal legislation

    ambiguity three-step lol

  7. The big problem is the executive orders’ reinterpretation is just flat out wrong. A bump stock still requires a trigger pull for each round fired.

  8. Black mark for Trump.

  9. “But, he added, waiting for the right case to come along “should not be mistaken for lack of concern.”

    Sure looks like lack of concern to me. It’s not like they’re legally obligated to wait for a circuit split.

    1. Percolation is prudent

      1. Bah, it’s prudent on marginal cases that don’t implicate civil liberties. It’s not prudent in open and shut cases where a civil liberty is being violated, it’s just chicken-shit.

        This isn’t a close one. Even previous anti-gun administrations didn’t have the nerve to claim bump stocks were machine guns, in direct defiance of the clear text of the law.

        So, when it “percolates” to them, if they rule in favor of the former owners, are they going to order the government to return their bump stocks, and compensate them for the years they were unlawfully deprived of their property and rights? No, even if they do eventually deign to notice this regulation/law is unconstitutional, they won’t make any of the victims of their own sloth whole.

  10. “Gorsuch Throws Shade at Trump Administration for Rewriting Federal Gun Laws Without Congressional Approval”

    Reason, faking news to fit The Narrative 24/7.

    Gorsuch was bemoaning Chevron Deference, not the Trump Administration having different interpretations of law than the Obama Administration, which is inevitable.

    “And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”

    1. That’s both anti-Chevron (the principle) and pro bump stock (the example).

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  12. As a single issue voter on gun rights, I am here at the Libertarian site in disgust at the bump stock ban.
    It seems that both parties are anti gun.
    Gun owners are literally millions of votes and the Republicans take us for granted.
    I wish there was an actual viable third party we could join.
    I have little hope for the libertarian party actually winning a national election.
    Where is Ross Perot when we need him?

    1. Ross Perot:
      ‘You don`t care if people collect guns. You don`t care if people have guns for hunting. You care like the devil if somebody`s just going to show up on the street and shoot you because he`s bored. . . . We`ve got to fix that and fix it now.”

      Collectables and hunting rifles don’t protect a most of the guns people rely on for self defense, let alone concealed carry. Try to carry a 1861 Navy Colt when you’re making a late night trip to the supermarket.

      Perot was also for the assault weapons ban.

      That hardly sounds like a full throated endorsement of gun rights.

    2. All Ross Perot did, was ensure Bush lost and that his company kept it’s federal data processing contracts. Investing a few tens of millions to split the vote and ensure hundreds of millions in revenues was a smart business decision.

  13. Now its likely that the bump atock ban will be a zombie law, still technically alive on the books as a deterrent, but prosecutors will be afraid to actually charge it to avoid having it struck, and losing its deterrent effect.

    1. Much like the gun free school zone act. Only worse, because it threatens everybody, not just people who live near schools.

      1. Only worse, because it threatens everybody, not just people who live near schools.

        Worse, you can’t form a business or add a product line to your existing business around an item that’s against the law, even if that law is never enforced against a single customer.

    2. You sure about that? I seem to recall they’ve already convicted someone for possession down in of all places Texas and he’s likely to do hard time…

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  15. Gorsuch is amazing Best thing Trump has done was get him on the court.

  16. Cold comfort indeed.

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  18. Seems to me Reason gets the headline wrong, and Root misinterprets Gorsuch (a rare event given Root’s usually excellent articles). IMHO Gorsuch is attacking Congress’ habit of passing ambiguous laws where they expect a big government executive branch to interpret them to the benefit of the political class at the expense of citizens. Trump of course is reinterpreting those laws because Congress chose to not make them clear, and that’s almost all he can do with the Democrats and RINOs against him. The big government statists hate it of course.

    Gorsuch also made it clear, he wants the SCOTUS to revisit this after some of the other appellate courts also provide their rulings. To me Gorsuch threw shade on the Chevron deference to executive branch interpretations of ambiguous laws written by Congress, not Trump’s interpretation. Consider Gorsuch’s position, knowing that the next big government president will undo many of Trump’s re-interpretations of regulations.
    I’d say what Gorsuch is doing, is positioning the court to rule legislation is unconstitutional (when an appropriate case arises) after a re-interpretation by the executive branch shows that to be the case, and forces Congress to write the laws rather than “we’ll have to pass it to find out what’s in it” as Pelosi stated and wanted.

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  20. The second amendment precludes federal government regulations on the keeping and bearing of small arms by citizens. It is in fact a blanket prohibition on the general government to regulate small arms. It was not a prohibition against the individual states until the SCOTUS decided that the Bill of Rights are equally applicable to them. It may be reasonably argued that the law forbidding civilian ownership of automatic weapons is wholly unconstitutional.

    1. As you may have noticed, what SCOTUS decides these days has very little to do with the original meaning of the Constitution. They are just making laws up as they go along according to their policy preferences.

  21. He doesn’t throw shade at the Trump administration, he complains about the administrative state and its rule making in general.

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