Gorsuch – “But waiting should not be mistaken for lack of concern. “

The Supreme Court in today’s order list has denied certiorari in Guedes et al v. BATFE. Guedes and the Firearms Policy Foundation had appealed the decision of the US Court of Appeals for the District of Columbia. That decision denied an injunction in the case.

Justice Neil Gorsuch agreed with the decision to deny certiorari in the case given it had not been fully briefed and argued on the merits. He did think the Court of Appeals made an error in relying on Chevron deference in this case because it involves a criminal penalty. He also noted that both the plaintiffs and the government had expressly argued that any decision should not rely on Chevron deference.

Gorsuch referred to the BATFE’s actions on reclassifying bump stocks as “bureaucratic pirouetting”.

Chevron’s application in this case may be doubtful for other reasons too. 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. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all 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; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

If I had to hazard a guess, when this or one of the sister cases involving the reinterpretation of the NFA to ban bump stocks does come before the Supreme Court fully briefed on the merits, Gorsuch will most definitely be in favor of hearing the case. Moreover, I would go further and say he would not find in favor of BATFE.


5 thoughts on “Gorsuch – “But waiting should not be mistaken for lack of concern. “”

  1. Another factor to consider that arises in light of Chevron deference: how can the statute be considered constitutionally definite if one reasonable interpretation results in guilt and an earlier reasonable interpretation results in innocence? Statutes, especially criminal statutes, have to be sufficiently definite that the accused can reasonably understand they are violating the law. Here, it depends entirely on the capricious whim of the federal agency.

    The government should be sanctioned and the US attorneys putting forth this pap should be disbarred.

    1. I would go further and completely reject the doctrine that ignorance of the law is no excuse. There is so much law now that no individual can be anything other than ignorant of it. Even federal agencies charged with enforcing laws are ignorant of what is in there. Try asking the IRS a question if you doubt me.

  2. Feeling happy and optimistic today, so I’m thinking that perhaps Gorsuch is the one writing the NYSRPA decision, and feels this case will benefit from that ruling, thus the warning at the end. Oh, and if we’re doing away with ignorance of the law, can we also get rid qualified immunity while we’re at it?

    1. Qualified immunity isn’t nearly the problem that absolute immunity (judges and prosecutors) is. And it doesn’t affect criminal prosecution at all. Truly egregious violation of civil rights by law enforcement should be on the criminal track anyway. Much of civil law is just ambulance chasers looking for a payday.

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