Discussing Garland v. Cargill

Chayila Kleist: Hello and welcome this FedSoc forum webinar call. Today, July 23rd, 2024, we are delighted to host a discussion on Garland v. Cargill, a case at an interesting intersection between criminal and administrative law that was decided in this past term by the court. My name is Chayila Kleist and I'm Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion, others with the experts on today's call as the Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time we'll keep your introduction of our guest state brief, but if you'd like to know more, you can access their impressive full bios at fedsoc.org. Today we're fortunate to have with us as our moderator Dr. Robert Leider, who is an Assistant Professor of Law at the Antonin Scalia Law School at George Mason University. His scholarly interests are in criminal law, criminal procedure, constitutional law, and especially questions concerning the use of course.

And the rule of law is written on the law of self-defense, the constitutional allocation of military power and gun control among other places. He has published in the Florida Law Review, the Indiana Law Journal and the Wall Street Journal. Before joining the Antonin Scalia Law School, Dr. Lider was at Arnold and Porter in Washington DC and also he was previously at Mayer Brown, LLP. I'll leave it to him to introduce our panel. One last note before I hand it off. If you have any questions throughout the program, please do submit them via the question and answer feature found at the bottom of your Zoom screen so they'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining today, Dr. Leider, the floor is yours.

Dr. Robert Leider: All right, thank you. So we're here today to talk about Garland v. Cargill, and this case involves whether bump stocks are machine guns as defined by the National Firearms Act. A bump stock is a device that harnesses the recoil energy of a semi-automatic firearm and allows the user to reset the trigger and fire again at rates that approximate what a machine gun could do, where a true machine gun is defined as a weapon that you press and hold the trigger and it delivers a succession of shots. And so the National Firearms Act defines a machine gun as "any weapon which shoots is designed to shoot or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger". And so the technical issue in this case was whether a bump stock device was a machine gun.

The term machine gun also includes parts that are capable of converting a semi-automatic firearm into a machine gun. But the case was also substantial for much more. It involved the intersection of the rule of lenity in criminal law, which the court has often dealt with separately, but only on rare occasions have these two principles come into collision. And it was slated to come into collision here until of course the court took a very different turn in administrative law overturning Chevron. So there's a lot to talk about. Some involves the Gun Control Act and the National Firearms Act and others involve bigger issues concerning administrative law, statutory construction, and the future of criminal law after agency deference has been eliminated. And so with me today are two great experts. We have Steven Halbrook, who's a senior fellow at the Independent Institute and who is an attorney in private practice.

He's argued three cases before the US Supreme Court, including most notably here, United States v. Thompson Center Arms Company, which was a previous iteration in which the rule of lenity had come into collision with agency deference. He's also, he's the author of numerous books and articles most recently, "America's Rifle: The Case for the AR-15." With me also is Zach Price, who's a professor of law at the University of California at San Francisco. He teaches and writes about constitutional law, administrative law and criminal and civil law enforcement. And he too has a forthcoming book, "Constitutional Symmetry Judging in a Divided Republic". So I'd like to welcome you both here. Thank you for joining us. Steven, I will turn it over to you. First, we're going to do some introductory remarks. I'm going to pose some questions to our panel and then we will open it up to audience questions. So Steven, can you take it away?

Dr. Stephen P. Halbrook: Thank you, Robert. It's a real pleasure to be here, especially because I thought the court made the right decision. It's a good result and it's got a lot of broader aspects to it than one would think. It's not just about so-called bump stocks. So a bump stock is something that a lot of people got kind of as a toy because they could fire a semi-automatic rifle faster than normal. They're not very accurate because there's a lot of bumping and commotion going on. But the reason the Supreme Court held that a bump stock is not a machine gun, number one, it doesn't fire automatically. You have to maintain forward pressure on the front part, on the hand guard in the front of the rifle. At the same time you have to maintain pressure on the trigger. And what's going on is that the inside of the rifle is rocking back and forth in the stock.

And so if you were to let go of the front part, it would not do anything. It would fire one shot and that would be it. And so that's why it doesn't fire automatically. And also it does not fire more than one shot with a single function of the trigger because the trigger continues to function each time there's a shot fired. And the court didn't mention the other phrase that's in the definition of machine gun without manual reloading, but I thought that was pretty critical myself because in essence, the maintaining that forward pressure is a form of manual reloading, but be that as there's really good news for the general public of gun owners, those who own semi-automatic rifles and pistols. And the reason for that is that the court plainly said that a semi-automatic is not a machine gun. Now, there's been lawsuits brought against the gun industry in recent times that claim that a semi-automatic is a machine gun.

One of the recent ones is Estados Unidos Mexicanos v. Smith & Wesson where Mexico is trying to sue the American gun industry for the violence that takes place in Mexico. And in that case, the Second Circuit said it's not a machine gun. And even in her dissent Justice Sotomayor said that a semi-automatic is distinguished from a machine gun. She distinguished an M-16 from an AR-15. And she said one other thing that's good for gun owners actually, even though it was part of the dissent and that was that the AR-15 rifles can be commonly purchased in this country. If you go back to District of Columbia v. Heller, the court said a common use test for protected arms - arms protected by the Second Amendment - the court said if they're commonly possessed by law abiding people for lawful purposes, then they're protected. So thank you Justice Sotomayor for saying that.

Another important principle is the court relies solely on the text. There was no deference to the ATF, and it would've been almost embarrassing had the agency argued for a difference because ATF said that bump stocks are not machine guns for several years, and it was only when the regulation was adopted that they made that claim. So I think probably everybody anticipated that the Chevron deference rule would be overruled as well, which it was in the Loper Bright Case. So moving on, Robert, you mentioned the rule of lenity. And what's interesting here is that the Fifth Circuit, a majority of judges based their decision on the rule of lenity, which means if it's a criminal law and it's not clear if it's ambiguous, you interpret it against the government and in favor of potential defendants. But the Supreme Court in its opinion didn't make any mention whatever of the rule of lenity.

Justice Thomas who wrote the opinion went straight for the statutory text and that was that. So there's a brewing debate between justices, Gorsuch and Kavanaugh about the rule of lenity and its role and interpretation of criminal statutes with Gorsuch saying that the rule is broad and Kavanaugh saying that it's more narrow, but that didn't come up in this case. It came up in a case called Wooden v. United States. Oh, and this is an important point. The purpose doesn't override the text. So it was Sotomayor that made that joke about if it walks like a duck, it talks like a duck and all that, then in other words, it's a machine gun because it fires fast. But if you look at the definition, there's no mention of speed. You could have a machine gun that fired only one shot per minute or even per hour, as long as it's only a single function of the trigger and it fires one shot a minute, it would still be a machine gun.

So again, that's a non-textual argument. Another important takeaway is that Congress makes the criminal law, not agencies. That's very important in this day and age of the administrative state. The criminal law means sanctions, imprisonment, prosecution, loss of reputation, loss of economic benefits, the whole works. And so we want Congress making those decisions. Justice Alito concurred and he said that well, Congress could go to work and pass the same law, and I think we want to be careful for what we wish for. There's over a half a million of these bump stocks in circulation. So what's going to happen? Are all those people going to be in possession of machine guns? Is there going to be an amnesty where they can register them?

There won't be a willfulness element of the offense if we just make it mere possession of one of these bump stocks. So that impacts an awful lot of people. And yet another problem, the National Firearms Act was passed under the Power of Congress to tax. It's a revenue measure. But then Congress in 1986 passed a law which bans mere possession of machine guns. And so then Judge Alito when he was on the Third Circuit, dissented in a case involving this section of law saying, there's no interstate commerce nexus to this machine gun ban, it's unconstitutional. So it was just a little bit ironic, the words of his concurrence in this case, and one reason why there's not a ban now is that in 2017, Senator Diane Feinstein proposed one and it was very, very broad. It would've banned firearms and considered them to be machine guns if only they fired a little bit faster than before. And if you get a good trigger job, any competitor or marksman knows this, you can make the trigger a little bit lighter to pull and it's more accurate that way. And it also makes it where you can fire faster. So there was from the get go, a lot of problems. That's why the law didn't pass. And we ended up with the agency doing this administratively, and it was really the first time the ATF had tried to change the definition of one of the regulated firearms that Congress had enacted. And I think that it is good riddance that the court did what it did because once again, we want the Congress to make criminal laws.

Dr. Robert Leider: Alright, thank you very much Stephen. Zach, take it away. Tell us what this means for statutory interpretation and agency deference.

Prof. Zachary Price: Sure. Well first of all, thanks very much for having me. It's great to be here and part of this discussion. So as Robert said, I thought I'd talk about the case as an interesting statutory interpretation case and particularly as a case if I tell us something about what statutory interpretation is going to look like going forward, particularly given the court's overruling of Chevron in this term. So I think that's going to be a focus of remarks. I also think it's an interesting case for thinking about what animates the divides we see on the Supreme Court, both sort of politically and jurisprudentially because of the way you have this interpretive question lining up with the question of gun rights. But I might say that for the Q&A, so anyway, to start with the merits of the case itself, I should just say at the beginning, and I think this is a pretty bad result as a matter of policy.

I mean Steven might disagree and I think I recognize the point about transition costs, but it seems to be one could have a pretty robust view of gun rights and still think of bump stocks as something that government could legitimately regulate. But more to the point I think if banning machine guns is okay, it's hard to see why banning bump stocks also wouldn't be. So I'm sort in line with Alito on that policy point, but at the same time, I do think the majority makes a pretty compelling textualist case for its holding. The basic argument as Steven said, is that even when using a bump stock, there still aren't multiple shots fired due to a quote, "single function of the trigger", which is the statutory term. Instead the is getting depressed separately for each individual shot. So on the other hand, the dissenters try to argue that the most natural way to read the single function of the trigger that statutory term is as quote, the initiation of the firing sequence by an act of the shooter.

So interestingly, they frame that as sort of textual. I think it strikes me at least as a bit of a stretch, as a matter of plain text, I think it would make a lot more sense as a claim about statutory purpose. That basic argument is that there's really no reason why a legislature that chose to ban machine guns that stray bullets once a trigger is depressed, why they make that choice and not also want to ban bump stocks which enable the same practical result. So others can correct me. I mean, my sense from the oral argument was that the challengers didn't even really make a terribly strong argument otherwise. And more or less conceded that there's not a great policy reason for differentiating between the two is just really an argument about the best way to read the text. So in any case, if you buy that, I think the case is a great example of the stakes in choosing between text and legislative purpose as a focus of interpretation. Should the interpreter be trying to effectuate the policy goals of the legislature or instead really healing closely to the text that the legislature enacted. So if that's the right way to think about the basic issue in the case, I think it's quite interesting that the dissenters didn't really frame the debate that way. Instead, as they said, they focused on the texts themselves made this argument that the texts most naturally supported their view.

They did back it up with an interpretive canon. They said this principle of not reading statutes so as to enable their own evasion. But again, that's not quite a purpose argument, it's more kind of background principle of textual interpretation. So I think it's interesting, it could just be a tactical choice trying to kind of rebut the majority on its preferred ground. But there are other cases in which we see these ideological demands of the court and the dissenters make a much more kind affirmative case for a different approach. And they didn't really do that here. So the case could signify some people, I forget who said it first, probably just Kagan, but we're all textualists now and there's a way in which this case sort of reflects that we have disagreements about the text. There seems to be a uniformity in thinking that text should be the focus.

So if that's what's going on in Cargill, I think it raises some interesting points about what interpretation is going to look like going forward, particularly after in the kind of post-Chevron era. So as I'm sure most listeners know, Chevron was this case that held that when courts are exercising judicial review, they should treat statutory ambiguities as implicit delegations to the agency defer to any reasonable construction of a statute by an agency that administers that statute. So that was the kind of key aspect of administrative law for about 40 years but in the Loper Bright case this term, the court overruled it. So one reason the court gave for overruling Chevron was it said courts had never satisfactorily answered this kind of threshold question of ambiguity. What makes a statute ambiguous in a way that triggers this inference of a delegation and therefore deference?

Chevron itself, as the court repeated many times, it said there's only an ambiguity if you've exhausted all the tools of statutory construction. But as the majority pointed out in Loper Bright, that's a little puzzling because the court deciding a case without any agency interpretation would presumably reach some conclusion about what the statute means. So it's all puzzling how there could be an ambiguity after you've applied all the normal tools of statutory interpretation. As Robert has mentioned in this very case, some of the lower court judges thought the statute was ambiguous, but they applied another tie-breaking principle, the rule of we entity, which normally requires construction of penal statutes in the defendant's favor. So in a way, Cargill is interesting in terms of thinking about what constitutes ambiguity. That question that the court said is kind of unanswerable. So to my mind, one way to think about ambiguity would be to say there's an ambiguity when conventional interpretive considerations point in different directions.

So for example, if as it was arguably true here, legislative purpose points in one direction, statutory text points in a different direction, you have an ambiguity. So if you're applying to Chevron, the agency would win. If you're applying the role of vanity, the defendant would win. I actually wrote an article about 20 years ago now arguing that that's how you should apply the rule of vanity. That would be a way of giving it kind of robust force in a principled manner, right? If there's some kind of conventional interpretive approach that would yield a narrow or construction, you should go with that one. So if you thought about ambiguity that way, then these tie-breaking principles would have a lot of force. If you thought about Chevron, if that were your theory of ambiguity, Chevron could be a big deal. It would mean that when you end up with a case like this one different considerations point in different ways, the agency would get to resolve the disagreement.

So now post Loper Bright, it is going to be the court, not the agency. So that could be a big shift in how things work. But again, interestingly side took that view in Cargill, they both kind of focused on text as the primary consideration. And so if that's the dominant approach to statutory interpretation, then it could suggest that overland Chevron actually isn't that big a deal because courts anyway would've only recognized a statutory ambiguity if the text itself or its kind of core meaning were ambiguous or suggested a delegation to the agency. I think that was always pretty much the way Justice Scalia understood Chevron and maybe part of the reason he supported is his interpretive approach didn't leave that much ambiguity in the end for agencies. But anyway, again, if that were how Chevron was going to work, at least according to the court before Loper Bright, maybe not as big a change.

But on the other hand, Cargill does suggest there's still a kind of underlying ideological disagreement about how textualism itself works. And so even if we don't have full blown purposivism in the way we might've had a generation ago, there still is some divide about the degree of flexibility and thinking about the text in particular, whether the text should be understood to extend beyond its core application to other contexts. So I think what that signals is we might going forward post Chevron, it may be cases that look just like this where there's some kind of play in the text and some room to import purpose type arguments into a kind of textual framework. It may be cases like this where you continue to see division on the Supreme Court and the lower courts about what statutes mean and those getting resolved by the court rather than agencies in this new environment.

So in any case, the bottom line is I think Cargill on the one hand, shows that Textualism on some level has carried the day, but there's still a sort of ghost of purism, of haunting the way Textualism gets applied by judges on opposite sides of kind of the current ideological divide. So as I said at the beginning, I think there are also interesting questions about, this is an interpretation case, but also a gun rights case. And we see the same justices lining up on those two questions here and in cases like Rahimi. And so I think it raises questions about why that is, did those things really fit together and if so, why? But I think this case is really reflecting the divide over interpretation or than the divide over gun rights. And if anything, it's unfortunate that it feeds into a perception of result-driven interpretation by virtue of it being a gun rights case as well. But anyway, thanks again for having me, really looking forward to the discussion.

Dr. Robert Leider: Alright, thank you very much for that wonderful analysis. And since I went to Steven first with the opening, Zach, I'm going to come to you first with a question. So you repeated Justice Kagan's famous quote at this point that "We're all textualists now", but I wonder how thin of an idea that is at this point. I don't know if you've read Randy Barnett and Evan Bernick's book, "The Original Meaning of the 14th Amendment: Its Letter and Spirit", but he rehabilitates these 19th century categories of not just having the letter of what the law is but also the spirit of the law and that the spirit was supposed to inform the letter. And it seems that everyone is fine being a textualist when the letter, when something is within both the letter and the spirit of the act, but that we seem to be having problems when we're missing one or the other. So some cases we might be within the letter but not the spirit. And I think Steve Saxon, he gives the example of a law which prohibits, which requires train operators to come to a stop if an animal crosses the tracks and clearly an ant is an animal, but you wouldn't expect the train operator to stop the train for an ant crossing the tracks. You have cases that are within the letter but not the spirit. And maybe this is the opposite, that this doesn't come within the letter of the law, but it clearly comes within the spirit because these devices are designed to replicate automatic rates of fire. And are we having a kind of broader intellectual divide about what to do when the letter and the spirit of the act divide where we're now in agreement that when the letter and the spirit align, obviously you go with what the text say, but where they don't align, is that something that's still very much an unsettled area despite all of us being textualists now?

Prof. Zachary Price: Yeah, so it's a great question. I mean I think that is the right way to think about why this case is hard to the extent it is. And I think it's a little puzzling that the dissent doesn't frame it that way, at least the way I read it. I mean, their lead argument is this is just a dictionary meaning of the text, whereas I think the stronger argument for their position would be we shouldn't be so literal here because it's so obviously within some people will say that the mischief that the law is aimed at addressing. So in terms of how this works, generally, Richard Ray has a great article where he argues that they're kind of across interpretation. There are these three different principles, I forget his exact names for them, but one is the kind of literal text and the other is the mischief of the statute.

And they're all kind of accepted ways of interpreting laws and people kind of flip back and forth between accepting one or the other in a kind of unstructured way. So Cargill, at least the majority opinion, I think seems oriented towards establishing at least in statutory interpretation, that we follow the literal meaning not the spirit or the mischief rule or whatever. So the question will be whether that really sticks in particular, whether the justices are so emphatic about that point here will really adhere to it in a case that pushes harder against their policy preferences and harder against the spirit of law where they like it. But it does seem like there's something of an agreement that with statutory interpretation at least, we're supposed to be kind of at least weaning towards the literal text On the broader kind of second amendment point, I mean I think one could argue that the kind of individual rights view is a bit more in the spirit range than the literal text. So that gets into a lot of interpretive questions that are close calls about what the second amendment means. But if that's right, that's an arguable consistency between statutory and constitutional interpretation.

Dr. Robert Leider: Yeah, I wasn't going to quite go there. I'll turn it over to Stephen in a second. But the counter example I was going to give you is maybe the January 6th prosecutions where you could make an argument. I think Justice Barrett did in dissent that those were within the letter of the text, but similar justices were in the majority, the same justices were in the majority were kind of taken aback that it was not within the spirit of what the provision was designed to prohibit went the other way. So I'm not sure that even the six justices in the majority are consistent across cases on this, but maybe, I don't know, do you have a different take?

Prof. Zachary Price: No, that could be right. I mean that's interesting. I mean if that were right, I mean that sort of fits my view of lenity, right? That if the text and purpose understandings or point in different directions in a criminal case you should go with the narrower view, but that I wouldn't necessarily extend that to non-criminal administrative context. But yeah, it's a good point. So maybe you're right that Cargill is overclaiming and presenting this as just the way things always go, even looking at other cases this term. But I do think that there's a bit of a gestalt if you look in the long view over the past 50 years, I think courts used to do a much more flexible version of purpose of in a lot of cases, and that I don't think we see so much of that anymore. So in that sense, at least I think we moved a bit towards textualism.

Dr. Robert Leider: Stephen, I'll let you jump in here if you'd like.

Dr. Stephen P. Halbrook: Yeah, I'm not an advocate of bun stocks and in fact I don't really like 'em. They waste a lot of ammunition and ammunition is a sad thing to waste.

Dr. Robert Leider: Can I ask you, do they have legitimate uses that aren't just an attempt to evade the machine gun ban? Am I being unfair?

Dr. Stephen P. Halbrook: You know what their use is? It's a novelty. These guys go out to the shooting range, they waste a lot of ammunition and they laugh a lot and then they go home. And unfortunately they were associated with the Las Vegas massacre. We don't really know because there's never been an analysis of it, what role did they play? Did it make things worse or did it have any effect, whatever. But that was the catalyst for this regulation. And this case was never advocated as a so-called gun rights case or a Second Amendment case. It was done solely on the basis of the text of a serious criminal law. If it's the half a million bump stock owners, if it really is a machine gun, the incarceration is 10 years for mere possession, not criminal misuse. And I want to contrast that with our gun control act cases involving 9 24 C, which is use of a firearm in a federal crime of violence or a federal drug trafficking crime and also 9 24 E, which is a three strikes rule that if you are convicted of three or more violent crimes and you possess a firearm, then it's mandatory imprisonment.

And so if you look at the justices who hold the government's feet to the fire on these misuse of firearm cases, Justices, Sotomayor, Kagan and Jackson are normally going to be looking at ambiguities and ruling strictly in the statutory interpretation against the government. That was one reason I was glad to see Justice Jackson get appointed to the court because she had been a legal aid attorney, she was a criminal defender, and your typical government or your typical judge is somebody who's a former prosecutor. And so I think she in particular gives a different kind of experience to the court. But if you look at those cases, those 9 24 cases involving violent criminals and drug traffickers, you see a different story. And what I think the ideal would be in criminal law in particular, we should all be textualists. And if there's any ambiguities, then it should be interpreted against the government. Congress can go in and do the fix.

Dr. Robert Leider: Zach, could you explain a little more how your proposal would've worked if you would apply lenity in criminal cases but not in others? Could you give a little more detail about

Dr. Stephen P. Halbrook: Well, yeah, I'd be glad because that I litigated a civil case involving that very principle Thompson Center Arms v. United States. If it's a criminal statute but if the issue arises in a civil case, the rule of lenity still applies because of the severe consequences and the rule that the statute's going to mean the same thing, whether it's a criminal or a civil case that's involved. So this case involved what's a short barrel rifle, and here we had a legitimate pistol, a legitimate long gun, and the fact that you could make it into a short barrel rifle, the court found that to be an ambiguity in the law and therefore adopted the rule of validity. This was an opinion, plurality opinion was by justice suitor and there was a good concurrence by Scalia, which was a little more textualist because the suitor opinion had some legislative history in it that Scalia was no friend of. But it is really one standard if it's just something that's a civil matter and there's no criminal implication, whatever, there's no rule of

Dr. Robert Leider: Zach, let me come back to you. I think there was a dissent in Thompson Center arms from Justice Stevens, I believe, who made a proposal. He is like, "If this were a criminal case, I don't know what I do, maybe I would apply lenity. But this isn't the case, this is a case of an appeal from the tax being imposed and there's no laity here. Is that kind of what you're advocating or are you advocating something different?

Prof. Zachary Price: Well, so I'm not totally sure. I mean, I'm inclined to think if it's the same statute applying in different context, it should have a consistent interpretation. The argument I made for lenity in my article was based on political process grounds, standard justifications for lenity are kind of notice and legislative supremacy. And I argue neither of those really work because people don't parse the words of statutes when they're going about their lives. And legislators of anything often want severity, not leniency. But I think the argument that does work for entity is that the political processes generally kind of stacked against criminal defendants. So I mean there's this kind of interesting, this may have relaxed somewhat recently. I think politics of crime have gotten more contested, but in general, legislatures ask broad statutes, press these really comprehensive criminal codes and count on prosecutors to sort out who's really worth going after.

So there's a kind of impetus towards breadth and severity in the legislative process. And we entity is a way of counteracting that because the court says, well, if you really want to make something criminal, you need to make that specifically clear. There's not any kind of political, normally not a political obstacle to doing that. So all the more reason to push in that direction. And then that was one piece of the argument. And then I thought, well, a way to operationalize a vigorous rule of entity, entity would be to say if there's any kind of conventional interpretive consideration that's pointing towards a narrower reading, then the court should go with that. So that was my theory. I mean I think if you just imagine a kind of administrative context, I mean there can often be criminal dimensions to regulatory regimes, but I think you might have different considerations if it's just kind of that agency deciding on some pollution limit or something. Hard to see that implicating quite the same argument for we it's, so I view it as a kind of all purpose kind of libertarian points. It's more that there are specific features of the political process and criminal law that I think justify narrow construction. But if you have a statute that's just, it's the same statute being applied in different ways, I think it's hard to give it two different meanings to two different contexts.

Dr. Robert Leider: Do you think the judges were good at determining whether ambiguity existed? One of the things I find remarkable about this case is six saying it's clear one way, three saying it's clear another way, if you go down to the courts of appeals, they're split three ways. They adopt one of those two positions, plus I think the DC circuit and some other judges in some panel opinions that were later overturned said, "Well actually it is ambiguous, so we're going to apply Chevron deference." And obviously you could think there could be cases where something is clear one way or clear another way because you're applying different interpretive principles which generate clear results that are opposed. But to have judges that were so widely dispersed saying it's clear, it's clear the other way and it's ambiguous, started to make me wonder whether judges were actually good at telling what was in fact clear and what was the ambiguous.

Prof. Zachary Price: It's a great question, sometimes people say, I think it actually is not correct, but you might say, well, the very fact that judges disagree about whether it's ambiguous shows that it's ambiguous. I think that doesn't quite work because in principle it's a legal judgment and there should be a correct answer one way or the other. But I think it does go to show that what you find ambiguous depends partly on your theory of interpretation. And I think the court is right in Loper Bright that courts have not really defined what, there's no clear theory of ambiguity. I mean, I think the way I just framed it would be a theory of ambiguity, but they've never embraced that. So then if you're being textual and you're trying to find out, figure out if it's ambiguous, then it's really a kind of judgment about how clear is the meaning of this line of text. And I thought the majority was pretty persuasive here, but maybe that's just sort of a judgment call.

Dr. Stephen P. Halbrook: So I agree that just because for example, there's a circuit split on a criminal law, it doesn't mean that the law is vague, the rule of lenity automatically applies, but it certainly suggests that it raises questions as to the potential vagueness of it. So it is not an automatic rule, but when you look at the court decisions, I mean they were all over the place. The DC circuit opinion two to one judge Karen Henderson dissented, she said, "I'm no friend of bump stocks" and in every other case I've ever known her to be in that was a gun case. She voted against the gun interests, if I can use that term. But in this case, she wanted to hold the government's feet to the fire. And you had all kinds of other things going on in this appellate court litigation. Like for example, ATF argued that this is an interpretive regulation, not legislative regulation, meaning it's not mandatory.

They're only telling you what they think the statute means and they're entitled to do that. Obviously we want them to tell us what they think things mean. Although during the course of the litigation, like the DC Circuit majority found the things they say in the regulation makes it obvious that it's mandatory. They're going to prosecute people who disagree or who are not in compliance with this. So look, I'm a criminal defense lawyer and I look at things through those lens, and there's any number of cases that you can find ambiguities if you're looking for 'em. I think one of the justices made comment about that. And that doesn't mean that there's an ambiguity there, but we all know Congress writes laws in ways where maybe they don't understand the problem or the issue, maybe they can't agree on certain language, so they intentionally use a term that's general and not specific in application. So I think I'm with Justice Gorsuch on this rule of lenity, it should be broadly interpreted. And I think that goes back to the common law, Blackstone wrote about that, that if the law is not clear, the government doesn't win. And I think that's what due process is all about.

Dr. Robert Leider: Well, thank you. I'm going to remind the audience we are taking questions, so please feel free to put them in the Q&A section and as I wait for them to roll in, Steven, I'm going to come back to you with another question here. What do you think in the gun law space, the abolition of Chevron means practically? What will change? What will happen?

Dr. Stephen P. Halbrook: Well, I think just in terms of Cargill, the issue became which ATF do we defer to if they claim deference, and by the way, they waived deference, they waived that argument in the litigation. But for years, ATF said that a bump stock is not a machine gun. ATF has a technical section where these guys are experts on firearm technology. In fact, they call it the firearms technology branch. And they determined because there was a single pull or a single function of the trigger for each shot, they determined that bump stocks were not machine guns. It was only when they were ordered by the Trump administration to say that they are, that they changed it. And if you look at the other ATF regulatory cases that are pending, we've got the Garland v. VanDerStok case before the Supreme Court on what is a frame or receiver.

And there again, the ATF had a regulation that was on the books from 1968 to 2022, clearly defining what a frame or receiver is, which is considered one of the definitions of a firearm. And then all of a sudden in 2022, they changed that and broaden it and make it where it includes things that were not considered frames or receivers when Congress enacted the statute in 1968, there's other regulations that, I mean this administration has promulgated three major virtual earthquakes in ATF regulations in terms of expanding the scope of the Gun Control Act. I mean, another one tries to create presumptions in cases that you're engaged in the business without a license and yet another regulation has to do with, so-called arm braces for pistols where ATF for years said, these are not short barrel rifles, and now they suddenly are overnight because they said so In a regulation. So I think the Loper Bright abolition of the Chevron deference rule is going to have a great effect in future cases. I've litigated numerous cases involving ATF and consistently they argue for what I call the divine right of deference. And remember the divine right of kings or back in the days before the glorious revolution. And so good riddance, it's gone.

Dr. Robert Leider: You say, just to give one of the audience questions, do you see this case as controlling the issues of partially completed receivers and pistol braces?

Dr. Stephen P. Halbrook: Absolutely. It applies here. One thing the court said, and Loper Bright that I liked was we give respect to agency opinions that were contemporaneous with the enactment of a statute if they were consistently applied thereafter. And so then if there's a sudden shift, then you don't give that so much respect. They didn't use the term deference. They used respect. And I agree with that. And I think when you apply that to these cases where ATF held certain interpretations for decades and decades and all of a sudden there's a shift in the administration and everything changes as an earthquake and what was considered valid before, I think that's where things are going to come into question in the future litigation in the Supreme Court,

Dr. Robert Leider: By the way, that was Chevron and the idea that you have a new administration and new policymaking. But Zach, I'm going to come back to you. I think one of the things that I saw get flagged on Twitter was Justice Alito's concurrence that now that we struck this rule down, Congress can act, and of course Congress could have acted the whole time. There was nothing about the rule that preempted Congress's ability to act, although perhaps Justice Alito's concurrence gets into kind of a real politic that underlies the law versus rulemaking process. And so I'm wondering what do you make of Justice Alito's comment, how do you think the abolition of Chevron deference will change, if at all, how Congress operates?

Prof. Zachary Price: Yeah, it's a good point. So I think in general, I courts say this and it's often not necessarily realistic that Congress will step in if you're dealing with something that's very contested and consequential. So that doesn't necessarily mean that it's wrong for the court to say interpretation is out of bounds or what have you. It's a bit of a make weight argument. So I mean, in terms of the broader Chevron debate, I may think to the extent Loper Bright is a meaningful change, it's shrinking the space of discretion in which agencies can operate that probably rules out certain more adventurous regulatory policies. And those are probably just the sort of policies that you'd also have trouble having sufficient consensus to get through Congress. So it puts the ball back in Congress's court in some sense, but also probably means those policies aren't going to happen.

This situation though strikes me as different, I mean, as I was saying, criminal on general, I mean all the time the DOJ loses criminal cases and then just puts together a wishlist of statutory fixes that have pretty broad subordinate Congress at least that was often the way it has worked historically, this seems like something that if it came to a vote, it's not at all implausible to me that you'd have bipartisan majorities that want to ban bump stocks. And the legislative process may make it easier to do things like have transition rules that handle reliance problems and that sort of thing in a way that just an up or down agency rule can't do. So I think this may be the type of situation where having the agency rule actually does remove a political impetus that would otherwise be there to actually get something through Congress. So in this particular context, I think Alito may be right, although ultimately courts just have to decide whether they think the law is and not adjust it to account for those sorts of things.

Dr. Robert Leider: Well, the transition rule comment that you just made I think is quite important because one of the things I've noted is that the dimensions of the political compromise have differed quite a bit, whether we're talking agency rules or legislation. So when the Trump administration did this with an agency rule, it just said bump stocks are machine guns and therefore they're banned and you have to either destroy them or turn them into ATF. Now that Congress is looking at legislation, they are banning the devices, but they're also providing for grandfathering existing devices through the National Firearms Act, which is quite a different result. And so I guess one of the things I'm wondering, and whoever wants this can take this question, does channeling these sorts of decisions through Congress, is this going to fundamentally change the nature of political compromises that come out versus just doing this through regulatory action?

Dr. Stephen P. Halbrook: Robert, I'd like to say why Congress didn't act before. It was in 2017, Senator Diane Feinstein had legislation, and here's the problem with her legislation, people who are proponents of broad gun bans, they wish for too much. She didn't limit her bill to bump stocks. In fact, she didn't even define bump stock in the bill, but she did have other language that would've called into question semi-automatics, which millions and millions of gun owners have. Anything that might happen with a gun to make it fire a little bit faster would've been considered, would've been making it an NFA firearm. And if you just do a simple trigger job on a gun to make it more accurate for mat shooting, you could also fire it faster that way. I testified in the Senate Judiciary Committee on the bill, and the problem was her bill didn't get support. Had it been limited just to bump stocks, maybe would've passed, I don't know. But they wish for everything and assault weapons and pistols with arm braces and they go down the laundry list and they don't limit what they're looking for. And that's why many of these bills don't pass.

Dr. Robert Leider: And that may be true, although what would you say to the idea that no matter what they do, there are going to be people that try to evade it. So if they had banned bump stocks, the next technology that would've been popular would've been the forced reset triggers or other or the binary triggers, the narrower you make the law, the more opportunity you have for evasion. What does Congress do in these sorts of situations?

Dr. Stephen P. Halbrook: Well, I would say avoidance, non evasion. If it's not that, it's not that and not the way they defined it.

Dr. Robert Leider: I mean, this is what we as lawyers do, right? Advise our clients on how to get around.

Dr. Stephen P. Halbrook: This is the problem with victimless crime laws too. I mean, normally for violent crimes, you can get people together to pass legislation and if you severely restrict a short barrel rifle, for example, even though the person didn't do anything wrong with it, I mean, this goes back to the 1934 hearings that got the NFA enacted, okay, there was gangsterism and Congress didn't limit itself to gangsters. It passed broad legislation. The original bills for the NFA included pistols and revolvers. So trying to bite off too much than you can chew, I think is what's at stake here partly.

Dr. Robert Leider: Do you think it'd be better if they just gave an express delegation to ATF to determine which devices enhanced the rate of fire? I assume even after Loper Bright, if there's an express delegation, it's not prohibited.

Dr. Stephen P. Halbrook: I think it'd be very unwise to do that because then you have something as a felony one day and not the next because it's a different administration. I think Congress needs to make their own definitions. They need to decide what's a crime and what's not.

Dr. Robert Leider: No, I don't know. Does that happen, Zach, in other areas like unfair trade practices or security selling the rules change and things that are tethered to the rules?

Prof. Zachary Price: I'm not sure. I mean, we see that happening in a lot in sort of high profile, politically contested regulatory areas and like net neutrality flipped back and forth three or four times and certain environmental policies. So we definitely see a fair amount of that. I don't know if that, I mean, I feel like on the other hand, there are other areas where there is a fair degree of stability and consensus. And in criminal law generally it's kind of both legislators and executive visuals are more anxious about not being able to prosecute something that they'd want to prosecute in the future than about being overbroad. But again, for that reason, I think I agree that criminal regulation should normally be done through legislatures. I mean, on the broader issue, I think when it comes to regulatory policy in general, the US legislative process is really designed to require a high degree of consensus to have major national legislation. And so that's the kind of constitutional design, which I think has generally been a wise choice. I mean, it gives the law a certain stability and prevents a lot of top-down change unless there's support for it. But it is very frustrating in an environment like this where you have very close political divides and people feel like they have a majority, they should be able to do things and they can't. And that then puts a lot of pressure on the administrative process to deliver on those policy items.

Dr. Robert Leider: We're just about out of time. Let me ask the last question. I guess we're just out of time, so please keep it brief. Is this case the future of what administrative law is going to look like? Because one of the things I noticed about the decision in this case is there isn't a ton of law and legal principles that course through it. It's heavily a technical dispute. I mean, you have diagrams of the weapons, you have the kinds of things that I think in the old days, agencies would've parsed and courts would've, in the heyday of Chevron, courts would've said, of course we're going to defer to this. But in a lot of ways it's a very technical decision. Is this going to be the future of what administrative law is going to look like? So Zach, I'll let you come in and then Steven, I'll give you the last word.

Prof. Zachary Price: I think it probably will. I mean, I think overruling Chevron will make it harder, particularly for lower courts to say, well, this is a technical thing. We're just going to defer. So for better or worse, I think you will have more decisions that look like this for the court to go through the details and make a judgment about what the text means, even if that sometimes means there's space left for agency policy judgment.

Dr. Robert Leider: Steven, the last word to you.

Dr. Stephen P. Halbrook: In the old days, in the Chevron days, judges were abdicating their judicial function. Chief Justice Marshall said, it's the duty of the judiciary to determine what the law is, and now I've litigated cases with ATF, whatever the agency said, some courts just said, okay, whatever. I think courts are going to have to take up their responsibilities more now and decide what the law is. I think that's a good thing.

Dr. Robert Leider: Well, thank you very much. This was a great discussion. We're certainly at a transitional point in administrative law, and so talking about the intersection of administrative law and criminal law, these are quite exciting times. So thank you very much for joining us. Thank you to all our listeners. Thank you.

Chayila Kleist: I'll echo those thanks. Thank you so much to our panel for joining us today and giving us this section of your afternoons. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.