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« Oops | Main | Nebraska enacted permit-less concealed carry »

6th Circuit rules bumpstocks are not NFA weapons

Posted by David Hardy · 25 April 2023 10:19 AM

In Hardin v. ATF. A few noteworthy things:

"This raises the question of whether a bump stock is a machinegun "part" as defined by the National Firearms Act of 1934. The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."
An Act of Congress could clear up the ambiguities, but so far Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin."

"Those courts of appeals that have faced the issue are divided on the answer, and the Supreme Court has not weighed in.... And our own circuit is split down the middle, with eight judges voting to uphold the Rule and eight judges voting to strike it down."

"The reasons to exercise caution in applying Chevron deference to an agency's construction of a statute with criminal applications are persuasive."

"This brings us to the rule of lenity, under which "penal statutes are to be construed strictly." FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954). Therefore, when Chevron deference is not warranted and standard principles of statutory interpretation "fail to establish that the Government's position is unambiguously correct[,] we apply the rule of lenity and resolve the ambiguity in [the criminal defendant's] favor." United States v. Granderson, 511 U.S. 39, 54 (1994). "In sum, it is not enough to conclude that a criminal statute should cover a particular act. The statute must clearly and unambiguously cover the act.""

4 Comments | Leave a comment

FW | April 25, 2023 4:00 PM | Reply

A statute is what the words say. All laws mean more or less than the author intended due to the choice of words. No agency has any authority to manipulate words. While the courts may rule on whether or not a statute meets the pure and simple language of the Constitution, no interpretation allowed, the courts, being creatures of the Constitution, cannot determine what the words of the Constitution mean. The sole arbiters of the words of the Constitution are We the People, the superior Body-politic to the Constitution and to the government. We have lived too long under the lie that the courts, and esp the SC, can tell us what OUR law for them means.

Delegata potestas non potest delegari.

Congress may make laws that conform to OUR Constitution but Congress shall not abrogate their duty nor breach the people's trust by allowing any other entity to "pass" laws, rules, or regulations.

Old Guy | April 26, 2023 3:14 AM | Reply

Congress is lazy and wants to avoid responsibly so they write vague shit laws and leave it to others to figure out so they can blame the agencies and not get blamed themselves.

FW replied to comment from Old Guy | April 26, 2023 7:27 AM | Reply

I often taught that law schools required 4 yrs of ambiguity classes.

I still advocate that a practicing attorney who is a member of the bar is an officer of the court or of the judicial branch. As such, any attorney who wants to serve in the legislative or executive branches must resign from the bar or else violate the separation of powers by being involved in two branches at the same time.

FW | April 27, 2023 9:20 AM | Reply

How is it that making changes after the fact which criminalize stuff are NOT ex post facto laws (rules, regs) which are prohibited by the Constitution?

Bump stocks?

pistol braces?

etc?

This question is on top of the fact that delegata potestas non potest delegari which tells us that NOTHING the ATF or any entity other than Congress does that is "legislative" is legal. Yet the judges have no cajones and refuse to just shut this stuff down.

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