by 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.