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UPDATE 12/19/2019: U.S. Supreme Court Should Clarify or Overturn Chevron Precedent, Apply the Rule of Lenity, Petitioners Say
Today, appellate counsel Erik S. Jaffe, of Washington, D.C., boutique firm Schaerr | Jaffe LLP, filed a reply brief in Guedes, et al., v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al., No. 19-296, a case seeking review by the Supreme Court because the Court of Appeals for the D.C. Circuit applied Chevron deference, rather than the rule of lenity, in analyzing a federal government rule that put thousands of Americans it risk of serious criminal liability and fines. The Supreme Court filings and key documents from the lower courts are available at www.BumpStockCase.com.
“The government effectively concedes the importance of the questions presented, opting instead for a peculiar strategy somewhere between a cross-petition and a claim of, in effect, harmless error,” the brief says. “All parties seem to agree that the decision below is fatally flawed and cannot be sustained on its own terms,” so the Supreme Court “should grant the petition for a writ of certiorari” or “summarily reverse and remand for further proceedings in which the government could raise, and the courts below could rule on, its non-Chevron-dependent arguments.”
“What is remarkable about the government’s position,” said Mr. Jaffe, “is that the government also thinks the court of appeals got almost everything wrong, but it likes the result, so it wants to keep it. Even though the court rejected the government’s main arguments, the government apparently thinks that does not matter and presumably would be defending the result in its favor even had the court simply flipped a coin or declared that it was ruling for the government as a matter of personal preference. That is not the rule of law, it is the rule of power and gamesmanship.”
“Bumpstocks” were legal under federal law and prior ATF determinations. But in February 2018, President Trump ordered the DOJ and ATF to ban the devices. (83 FR 7949.) Under the new re-interpretation of the statute and bump-stock rulemaking, owners of the devices had just 90 days to surrender or destroy their property, after which they faced federal “machinegun” charges that carry up to 10 years in prison and $250,000 in fines for each violation.
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