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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 12-11-2018, 12:11 PM
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Default Kisor v. Wilkie challenge to Auer deference (granted cert)

I didn't see this posted yet.

https://www.google.com/amp/s/www.the...ory-power/amp/

From the article:

Under what is known as Auer deference, named for a Supreme Court case, Auer v. Robbins, courts must defer to the agency’s interpretation of that agency’s own regulations unless such interpretation is plainly erroneous. Under a related doctrine, known as Chevron deference, where a statute implicitly gives an agency the power to promulgate regulations, the courts are not to substitute their interpretation of a statute for a reasonable one that has been made by the bureaucrats.

...


Today, however, the Supreme Court granted cert in a case, Kisor v. Wilkie, that specifically challenges whether Auer deference is constitutional. With the addition of Justices Gorsuch and Kavanaugh — both of whom have expressed reservations about the current state of administrative law — there may now indeed be the five votes need to begin to undo the decades-long abdication of power to the vast federal bureaucracy, including BATFE.
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Old 12-11-2018, 1:39 PM
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Anyone know why the timeline is with certs? Does that mean they’ll rule on it by the end of this court year? Is that summer ‘19?
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Old 12-11-2018, 1:51 PM
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What are the real implications of overturning Chevron deference? If I understand this right, not requiring Judges to defer to the executive agency's interruption of the law might have an effect on something like the m855 proposed ban, where the letter of the law is very clear. It would not effect on firearm receivers having the evil 3rd machine gun hole or open bolt semiautomatics, as those are easily converted to machine guns. Would it effect or change the BATFE's ruling on drop in auto sears or lightening links though? That would be huge.
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Old 12-11-2018, 1:56 PM
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Quote:
Originally Posted by wireless View Post
What are the real implications of overturning Chevron deference? If I understand this right, not requiring Judges to defer to the executive agency's interruption of the law might have an effect on something like the m855 proposed ban, where the letter of the law is very clear. It would not effect on firearm receivers having the evil 3rd machine gun hole or open bolt semiautomatics, as those are easily converted to machine guns. Would it effect or change the BATFE's ruling on drop in auto sears or lightening links though? That would be huge.
I think what you will see is that Congress will then pass a law like bump stocks.
So don't get too excited. Machine guns or things that mimic MGs will not be removed from NFA in our lifetime. It is solidly part of the general culture that MGs are not covered in the 2A.
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Old 12-11-2018, 2:07 PM
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Originally Posted by ECG_88 View Post
I think what you will see is that Congress will then pass a law like bump stocks.
So don't get too excited. Machine guns or things that mimic MGs will not be removed from NFA in our lifetime. It is solidly part of the general culture that MGs are not covered in the 2A.
They still have to get 60 votes to pass those types of laws. So far nothing on bumpstocks, background checks, or gunban terrorist watch no fly list.

I am not talking about removing machineguns out of the NFA via judicial branch, rather would it change the BATFE's ruling that a lightening link or a drop in autosear are machineguns? Owning one but "not being able to use it" is far different than outright calling those components machineguns.

I'm curious what the real implications are for the 2nd amendment community. So far I could see overturning chevron deference to rid the BATFE the power to call braces SBRs or m855 armor piercing ammo.
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Old 12-11-2018, 2:45 PM
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Quote:
Originally Posted by wireless View Post
They still have to get 60 votes to pass those types of laws. So far nothing on bumpstocks, background checks, or gunban terrorist watch no fly list.

I am not talking about removing machineguns out of the NFA via judicial branch, rather would it change the BATFE's ruling that a lightening link or a drop in autosear are machineguns? Owning one but "not being able to use it" is far different than outright calling those components machineguns.

I'm curious what the real implications are for the 2nd amendment community. So far I could see overturning chevron deference to rid the BATFE the power to call braces SBRs or m855 armor piercing ammo.
Well, BATFE could still say that, but then judges would be free to say, "No, an arm brace is not a SBR nor does a bump stock make a machine gun. That's stupid."

I do agree with you. The implications of this being overturned could be huge for the 2A as well as many other areas.
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Old 12-11-2018, 2:50 PM
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Quote:
Originally Posted by wireless View Post
I am not talking about removing machineguns out of the NFA via judicial branch, rather would it change the BATFE's ruling that a lightening link or a drop in autosear are machineguns? Owning one but "not being able to use it" is far different than outright calling those components machineguns.
The legal definition of a Machine Gun, much like a silencer, includes individual parts, not just the complete firearm:

Quote:
Originally Posted by 26 USC 5845
(b) Machinegun
The term “machinegun” means 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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Lightning Links and DIAS's have no other purpose than to convert a weapon into a machinegun, and are therefor machineguns themselves.

Quote:
I'm curious what the real implications are for the 2nd amendment community. So far I could see overturning chevron deference to rid the BATFE the power to call braces SBRs or m855 armor piercing ammo.
I think the Brace / SBR issue would likely swing the opposite direction than you think. Arm braces are so obviously used as stocks that a court would likely take the wheel out of ATF's hands and say that putting one on a pistol and shouldering it is, in fact, using the brace as a stock and therefor the weapon is a rifle / SBR.

M855 simply does not meet the legal definition of "armor piercing" ammo because of how it's core is constructed (steel+lead).

Quote:
Originally Posted by 18 USC 921
(B) The term “armor piercing ammunition” means—
(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.

Last edited by pdsmith505; 12-11-2018 at 2:56 PM..
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Old 12-11-2018, 4:19 PM
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Quote:
Originally Posted by pdsmith505 View Post
The legal definition of a Machine Gun, much like a silencer, includes individual parts, not just the complete firearm:



Lightning Links and DIAS's have no other purpose than to convert a weapon into a machinegun, and are therefor machineguns themselves.

.
Yet machine gun components come in every AK kit I buy and they aren't considered machine guns. Are you saying simply owning AK safety sears means I own machine guns per BATFE? No. Is every MP5 kit I'd buy with a machine gun trigger pack a machine gun? No.

After rereading the definition, how "easily convertible" the components are to make a machine gun a machine gun is essential. DIAS and Lightening links fit that definition.

I wonder if overturning chevron could mean imports of foreign "machine gun" barrels and saw cut receivers instead of torch cuts. That would be huge if we could import original barrel kits with saw cut receivers. Neither fit the definition of readily convertible to a machine gun.

I also strongly disagree your notion that pistol braces would be more likely to be illegal if Chevron was overturned.

And yes, my m855 reference is exactly what I am talking about with this case. If precedent was overturned, it seems the BATFE's decision to turn m855 into "armor piercing" ammo would be even more difficult to enact, because the statutory definition for armor piercing ammunition is clear. Part ii of 18 USC 921 was an important component to opposition against m855 ban if I remember correctly.
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Old 12-11-2018, 4:57 PM
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AR-15 FA bolt carrier groups? Not a machinegun, yet.
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Old 12-11-2018, 7:04 PM
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Quote:
Originally Posted by wireless View Post
Yet machine gun components come in every AK kit I buy and they aren't considered machine guns. Are you saying simply owning AK safety sears means I own machine guns per BATFE? No. Is every MP5 kit I'd buy with a machine gun trigger pack a machine gun? No.

After rereading the definition, how "easily convertible" the components are to make a machine gun a machine gun is essential. DIAS and Lightening links fit that definition.
That AK that you are building, can the receiver accommodate the extra pin?

The MP5 you are building from the kit... does the front of the trigger pack use a shelf or a pin to hold it to the receiver? Correct me if I'm wrong, but HK receivers that have the front pin are considered de-facto machine guns in the same way that AR lowers with the third hole are.

It's degrees of effort required to actually achieve a machinegun. The DIAS and LL are are on the low end of the effort scale.

The LL can, by itself with no other special parts or machine work, convert a semi-automatic to a machine gun. The DIAS still requires a FA trigger group, but that'll drop right in too, no third hole or enlarging of the FCG pocket required. Hell, the classic shoe-string machinegun fits the definition of no modification required as well.

OTOH, the fact that DIASs, LLs, registered sears / trigger packs (HK, 10/22), etc. exist is fantastic because they are far more versatile than just a registered receiver. With a DIAS, I could have a dedicated .223/5.56 lower and a dedicated 9mm lower (no magwell adapter!) that both get run as machine guns. With the registered HK pack/sear, I could have a full auto MP5, HK 91, and HK 93. Combine that with the deference forced on the ATF by the Thompson Center case allowing pistol-rifle-pistol (in free states), and they could all have short barrels too... just replace the stock with a plate.

Quote:
I wonder if overturning chevron could mean imports of foreign "machine gun" barrels and saw cut receivers instead of torch cuts. That would be huge if we could import original barrel kits with saw cut receivers. Neither fit the definition of readily convertible to a machine gun.
I think that would likely be an avenue where such firearms, as long as they aren't "firearms" within the scope of the NFA, and parts could be imported, since the arbitrary "sporting purposes" critera and determinations would be allowed to be questioned. With the advent of shooting matches, semi-automatic rifles such as G3's and whatnot that were banned would be useful in "sport".

Quote:
I also strongly disagree your notion that pistol braces would be more likely to be illegal if Chevron was overturned.
Oh? You mean to say that a court presented with a braced pistol being labeled an unregistered SBR after a cop saw the guy shouldering it would continue to give deference to the ATF's opinion that shouldering the brace doesn't constitute redesign? That's precisely the opposite of what the plaintiff seeks.

Quote:
And yes, my m855 reference is exactly what I am talking about with this case. If precedent was overturned, it seems the BATFE's decision to turn m855 into "armor piercing" ammo would be even more difficult to enact, because the statutory definition for armor piercing ammunition is clear. Part ii of 18 USC 921 was an important component to opposition against m855 ban if I remember correctly.
I doubt the same luck could be had with 7n6 though... since it fits the definition (steel core surrounded by lead then copper) as long as it's considered handgun ammunition. Figure a bunch of those short-barreled AK-74 pistols with (or without) braces run counter to that stroke of luck.
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Old 12-11-2018, 10:21 PM
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I'm more excited to see how this affects things here in Cali. Like the new assault weapon regs that say you can't remove your bullet button.
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Old 12-11-2018, 10:38 PM
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Quote:
Originally Posted by pdsmith505 View Post
That AK that you are building, can the receiver accommodate the extra pin?
My point is just because a part has "no other purpose than converting a part to a machinegun" does not absolutely make that component a machine gun. In the case of readily convertible, DIAS and lightening links meet that definition the more I read.

Quote:

The LL can, by itself with no other special parts or machine work, convert a semi-automatic to a machine gun. The DIAS still requires a FA trigger group, but that'll drop right in too, no third hole or enlarging of the FCG pocket required. Hell, the classic shoe-string machinegun fits the definition of no modification required as well.
Right, but owning a FA fire control group doesn't make those parts a machinegun. I'm just getting at the point that items designed solely to turn a gun into a machinegun does not necessarily make those parts a machine gun the same way a DIAS is. Same for some MP5/G3/Cetme components.

Quote:
I doubt the same luck could be had with 7n6 though... since it fits the definition (steel core surrounded by lead then copper) as long as it's considered handgun ammunition. Figure a bunch of those short-barreled AK-74 pistols with (or without) braces run counter to that stroke of luck.
I think a lot of the 7n6 was russian import as well, so it looks like we are SOL with sanctions.

I don't want to turn this thread into a discussion about pistol braces, so let's just agree to disagree?


Parts kits with comblock barrels and saw cut receivers would be amazing.
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Old 12-14-2018, 12:10 PM
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The CADOJ trying to figure out the ammo regs thread got me thinking ...

IF this case (Kisor v. Wilkie) is ruled in a certain way, it would make for a good challenge (or additional evidence to existing challenges) about how the CADOJ has 'applied' BBRAW regs compared to what is actually written in the PC.

Just a thought for those on the legal frontlines.
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Old 06-26-2019, 8:51 PM
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Default Decided 6/26/2019 - Judgment is Vacated and Remanded.

Decided today... Kisor v. Wilkie

In an opinion analysis posted on SCOTUSblog...

Quote:
...In her opinion for the court, Kagan stressed that courts should not reflexively defer to an agency’s interpretation of its own regulation. Instead, she explained, deference should be given only if the agency’s regulation is genuinely ambiguous. If it isn’t ambiguous, she continued, the “regulation then must means what it means—and the court must give it effect, as the court would any law.” And she suggested that courts must try hard to resolve any ambiguities that it thinks it sees in a regulation: She acknowledged that “regulations can sometimes make the eyes glaze over,” but emphasized that “hard interpretative conundrums, even relating to complex rules, can often be solved.” ... Roberts and Kavanaugh also took pains to make clear that today’s decision is limited to Auer deference and does not affect the doctrine known as Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress.

Last edited by TrappedinCalifornia; 06-26-2019 at 8:54 PM..
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Old 06-26-2019, 9:14 PM
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See also Volokh Conspiracy,
https://reason.com/2019/06/26/auer-d...-rule-the-day/
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