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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
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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. |
#3
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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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#4
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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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Emotional appeal is a marketing tactic and not a foundation for effective argument. Nulla Fatere, Omnia Nega, Accusatorem Accusa |
#5
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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. |
#6
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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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"Did I say "republic?" By God, yes, I said "republic!" Long live the glorious republic of the United States of America. Damn democracy. It is a fraudulent term used, often by ignorant persons but no less often by intellectual fakers, to describe an infamous mixture of socialism, miscegenation, graft, confiscation of property and denial of personal rights to individuals whose virtuous principles make them offensive." - Westbrook Pegler |
#7
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M855 simply does not meet the legal definition of "armor piercing" ammo because of how it's core is constructed (steel+lead). Quote:
Last edited by pdsmith505; 12-11-2018 at 2:56 PM.. |
#8
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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. |
#10
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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:
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#12
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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. |
#13
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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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#14
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Decided 6/26/2019 - Judgment is Vacated and Remanded.
Decided today... Kisor v. Wilkie
In an opinion analysis posted on SCOTUSblog... Quote:
Last edited by TrappedinCalifornia; 06-26-2019 at 8:54 PM.. |
#15
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See also Volokh Conspiracy,
https://reason.com/2019/06/26/auer-d...-rule-the-day/
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
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