Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

Supreme Court briefJul 24, 2023

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No. 22-451

In the Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL., Petitioners,

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR NATIONAL SPORTS SHOOTING

FOUNDATION, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

BRIAN J. FIELD

KENNETH A. KLUKOWSKI

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

Counsel for Amicus Curiae

July 24, 2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

II.

Federal Agencies Such as ATF Rely on

Chevron

and

Alleged

Statutory

Ambiguity

After

Whipsawing

Regulated Industries, Such as the

Firearm Industry, With Changed

Statutory Interpretations. .............................. 3

Shifting Agency Regulations Affect

the Firearm Industry and Many

Other Industries. ..................................... 4

ATF Often Seeks and Courts Often

Grant Chevron Deference to

Support Changing Interpretations

Laws

Affecting

Second

Amendment Rights. ................................ 6

By Continuing to Apply Chevron

Deference, Courts Deprive Regulated

Entities from Being Able to Rely on

Agency Positions. .......................................... 11

CONCLUSION .......................................................... 18

TABLE OF AUTHORITIES

Cases

10 Ring Precision, Inc. v. Jones,

722 F.3d 711 (5th Cir. 2013) .................................... 7

Abramski v. United States,

573 U.S. 169 (2014) .................................................. 8

Agostini v. Felton,

521 U.S. 203 (1997) ................................................ 11

Aposhian v. Barr,

958 F.3d 969 (10th Cir.), vacated en banc,

973 F.3d 1151 (10th Cir. 2020), and

reinstated sub nom. Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021),

cert. denied sub nom. Aposhian v. Garland,

143 S. Ct. 84 (2022) ................................................ 16

Arizona v. Rumsey,

467 U.S. 203 (1984) ................................................ 11

Atlantic Mut. Ins. Co. v.

Commissioner of Internal Revenue,

523 U.S. 382 (1998) .................................................. 8

Bastias v. U.S. Att’y Gen.,

42 F.4th 1266 (11th Cir. 2022),

petition for cert. docketed sub nom.

Bastias v. Garland,

No. 22-868 (U.S. Mar. 10, 2023) ............................ 16

Buffington v. McDonough,

143 S. Ct. 14 (2022) .................................... 14, 16, 18

iii

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023),

petition for cert. docketed,

No. 22-976 (U.S. Apr. 7, 2023) ................................. 9

Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) .................................................. 3

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) .................................................. 6

Dada v. Mukasey,

554 U.S. 1 (2008) ................................................ 8, 16

Daibo v. Attorney Gen.,

265 F. App’x 56 (3d Cir. 2008) ............................... 10

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................................. 6

Gamble v. United States,

139 S. Ct. 1960 (2019) ...................................... 11, 12

Guedes v. Bureau of Alcohol, Tobacco,

Firearms and Explosives,

45 F.4th 306 (D.C. Cir. 2022),

reh’g denied, 66 F.4th 1018 (D.C. Cir. 2023),

petition for cert. docketed,

No. 22-1222 (U.S. June 20, 2023) ........................ 7, 8

Guedes v. Bureau of Alcohol, Tobacco,

Firearms and Explosives, 920 F.3d 1 (D.C.

Cir. 2019), superseded by, 45 F.4th 306 (D.C.

Cir. 2022), reh’g denied, 66 F.4th 1018 (D.C.

Cir. 2023), petition for cert. docketed, No. 221222 (U.S. June 20, 2023) .................................... 7, 8

Gun Owners of Am., Inc. v. Garland,

19 F.4th 890 (6th Cir. 2021), cert. denied,

143 S. Ct. 83 (2022) .................................................. 9

Hardin v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

65 F.4th 895 (6th Cir. 2023) .................................... 9

In re Murchison,

349 U.S. 133 (1955) ................................................ 16

Janus v. American Fed’n of State, Cnty.,

& Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) ............................................ 11

Marbury v. Madison,

1 Cranch 137 (1803) ............................................... 15

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................................. 6

Michigan v. Environmental Prot. Agency,

576 U.S. 743 (2015) ................................................ 15

National Cable & Telecomms. Ass’n v.

Brand X Internet Servs.,

545 U.S. 967 (2005) ................................................ 16

Palmore v. United States,

411 U.S. 389 (1973) ................................................ 17

Payne v. Tennessee,

501 U.S. 808 (1991) ................................................ 11

Reed v. Rhodes,

934 F. Supp. 1492 (N.D. Ohio 1996),

aff’d, 179 F.3d 453 (6th Cir. 1999) ........................ 17

Ron Peterson Firearms, LLC v. Jones,

760 F.3d 1147 (10th Cir. 2014) ................................ 7

Scialabba v. Cuellar de Osorio,

573 U.S. 41 (2014) .................................................. 15

UC Health v. National Lab. Relations Bd.,

803 F.3d 669 (D.C. Cir. 2015) ................................ 15

United States v. Anaya-Acosta,

629 F.3d 1091 (9th Cir. 2011) .................................. 9

United States v. Apel,

571 U.S. 359 (2014) .................................................. 8

United States v. Atandi,

376 F.3d 1186 (10th Cir. 2004) .............................. 10

United States v. Bazargan,

992 F.2d 844 (8th Cir. 1993) .................................. 10

United States v. Flores,

404 F.3d 320 (5th Cir. 2005),

abrogated by Abramski as recognized by

United States v. Garcia,

707 F. App’x 231 (5th Cir. 2017) ........................... 10

United States v. Orellana,

405 F.3d 360 (5th Cir. 2005) .................................... 9

Vasquez v. Hillery,

474 U.S. 254 (1986) ................................................ 11

West Virginia v. Environmental Prot. Agency,

142 S. Ct. 2587 (2022) ...................................... 17, 18

Statutes

18 U.S.C. § 921 .......................................................... 12

18 U.S.C. § 922 .................................................. 4, 9, 10

18 U.S.C. § 923 ............................................................ 7

18 U.S.C. § 924 .......................................................... 10

26 U.S.C. § 5845 .................................................... 9, 12

Gun Control Act of 1968,

Pub. L. No. 90-618, 82 Stat. 1213............................ 4

National Firearms Act of 1934,

Pub. L. No. 73-474, 48 Stat. 1236............................ 4

Regulations

Bump-Stock-Type Devices,

83 Fed. Reg. 66,514 (Dec. 26, 2018) .................... 4, 7

Definition of “Frame or Receiver” and

Identification of Firearms,

87 Fed. Reg. 24,652 (Apr. 26, 2022) .................... 5, 6

Factoring Criteria for Firearms with

Attached “Stabilizing Braces”,

88 Fed. Reg. 6,478 (Jan. 31, 2023) ........................ 6, 12

Other Authorities

Bumpstocks and Acceleration Devices Act,

H.R. 4594, 116th Cong. (2019) .............................. 13

Closing the Bump Stock Loophole Act of 2021,

H.R. 5427, 117th Cong. (2022) .............................. 13

Closing the Bump Stock Loophole Act of 2023,

H.R. 396, 118th Cong. (2023) ................................ 13

Closing the Bump-Stock Loophole Act,

H.R. 4168, 115th Cong. (2017) .............................. 13

The Federalist No. 11

(Alexander Hamilton) (Clinton Rossiter ed.,

1961) ....................................................................... 17

The Federalist No. 37

(James Madison) (Clinton Rossiter ed., 1961) ...... 18

vii

Joseph G.S. Greenlee,

The American Tradition of Self-Made Arms,

54 St. Mary’s L. J. 35 (2023) .................................... 5

High Speed Gunfire Prevention Act,

H.R. 3606, 116th Cong. (2019) .............................. 13

Henry J. Kauffman,

Early American Gunsmiths 1650–1850

(1952) ........................................................................ 5

Protecting Our Communities Act,

H.R. 3299, 117th Cong. (2021) .............................. 13

Protecting Our Kids Act,

H.R. 7910, 117th Cong. (2022) .............................. 13

Christopher J. Walker,

Inside Agency Statutory Interpretation,

67 Stan. L. Rev. 999 (2015) ................................... 14

What is a ghost gun?,

CBS News (Apr. 11, 2022) ....................................... 5

INTRODUCTION AND

INTEREST OF AMICUS CURIAE

The National Shooting Sports Foundation, Inc.

(NSSF) is the trade association of the firearm,

ammunition, hunting and shooting sports industry. 1

Founded in 1961, NSSF is a Connecticut nonprofit

corporation recognized under Section 501(c)(6) of the

Internal Revenue Code as a professional association.

Today, NSSF has approximately 10,000 members,

including federally licensed firearm and ammunition

manufacturers, distributors, and retailers, as well as

manufacturers, distributors, and retailers of products

for the hunting, shooting and self-defense market,

public and private shooting ranges, gun clubs,

sportsmen’s organizations, and endemic media.

NSSF’s mission is to promote, protect and preserve

hunting and the shooting sports.

NSSF members produce and sell products such as

those discussed in this brief, products that a federal

agency previously assured them were legal under

federal law. After the agency decides a product is

lawful, however, it may suddenly reverse course and

declare the product is now illegal, even without any

intervening change in the statute. Invoking this

Court’s Chevron doctrine, the lower federal courts

often defer to these shifting agency determinations,

1 Counsel

for amicus curiae certifies, pursuant to Supreme

Court Rule 37.6, that no counsel for any party authored this brief

in whole or in part and no entity or person, aside from amicus

curiae, their members, and their counsel, made any monetary

contribution toward the preparation or submission of this brief.

adversely affecting both NSSF’s members and the

purchasing public.

SUMMARY OF ARGUMENT

Federal agencies such as the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) rely on the

Chevron doctrine—and supposed statutory ambiguity

—to abruptly reverse course from their longstanding

regulatory determinations. Like other industries, the

firearm industry suffers from regulatory whipsaw as a

result of changing agency interpretations of statutes

that have not changed. ATF regularly seeks Chevron

deference for its whipsawing rules, and, all too often,

courts are willing to oblige. Ongoing litigation in the

lower courts over firearm accessories such as bump

stocks and stabilizing arm braces are only the latest

examples of this unfortunate phenomenon. The fact

that federal courts give Chevron deference to ATF

policy shifts that regulate and restrict a fundamental

constitutional right confirms that the time has come

for Chevron to be reconsidered—and rejected.

By deferring under Chevron to an agency’s changed

interpretation of an unchanged statute, courts make it

impossible for companies in regulated industries, such

as the firearm industry, to rely upon an agency’s

existing interpretation—contrary to one of the

primary values underlying the doctrine of stare decisis

and, indeed, contrary to the rule of law itself. These

norms serve an important function, and the fact that

Congress has repeatedly rejected proposed measures

that would have changed the relevant statutes makes

clear that ATF should not be able to whipsaw the

firearm industry with the stroke of a pen, to say

nothing of courts deferring to that whipsaw.

Chevron imposes an unwarranted disadvantage on

those seeking to challenge this regulatory whipsaw in

court—especially when a reviewing court says it does

not agree with the agency’s interpretation but that the

interpretation clears the low bar of being “reasonable.”

This is not the system that the Framers devised, nor

is it the system that due process promises when a

member of a regulated industry seeks to challenge

government overreach.

ARGUMENT

Federal Agencies Such as ATF Rely on

Chevron and Alleged Statutory Ambiguity

After Whipsawing Regulated Industries,

Such as the Firearm Industry, With

Changed Statutory Interpretations.

Federal government agencies often argue that a

statutory provision at issue in litigation is ambiguous,

and that the court should therefore defer to the

agency’s interpretation under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). A prime example is in litigation involving

federal gun control laws where ATF asserts a

statutory interpretation and insists that it receive

deference.

A. Shifting Agency Regulations Affect the

Firearm Industry and Many Other

Industries.

Like many highly regulated industries, the firearm

industry is subject to continually shifting agency

regulations. In the case of the firearm industry, the

regulating agency is the ATF.

This regulatory

whipsaw imposes significant costs on members of this

industry, impacting both the companies comprising

that industry, and the prices and choices available to

consumers.

An example currently in litigation, as discussed

below in Part I-B, concerns “bump stocks” on firearms.

ATF had previously allowed certain models of bump

stocks.

Bump-Stock-Type Devices, 83 Fed. Reg.

66,514, 66,517 (Dec. 26, 2018).

However, ATF

reversed course in 2018 and issued a new rule

designating bump stocks as machineguns under 26

U.S.C. § 5845(b). Id. at 66,553-66,554. Ever since the

passage of the National Firearms Act of 1934 (NFA),

Pub. L. No. 73-474, 48 Stat. 1236, and subsequent

federal firearms statutes such as the Gun Control Act

of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213, it is

generally illegal to own a machinegun, 18 U.S.C.

§ 922(o)(1); indeed, it is a felony carrying up to 10

years in prison, id. § 924(a)(2). Thus, through this

regulatory about face, ATF was able to accomplish by

regulation something that Congress had not done—

making illegal a product that was legally possessed by

many law-abiding Americans, despite Congress not

changing the underlying statute in any way.

Firearm accessories are made from raw materials

that cost money and are transformed into final

products by skilled craftsmen using precisionengineered heavy machinery. The financial impact of

a product suddenly becoming illegal is therefore

significant both to those companies and to the

purchasing public.

Bump stocks are not alone in their ever-changing

treatment by ATF. Another is the frame or receiver

rule, which proponents of a particular political

narrative refer to as “ghost guns” in order to grab as

many headlines as possible. See, e.g., What is a ghost

gun?,

CBS

News

(Apr.

11,

2022),

https://www.cbsnews.com/news/what-is-a-ghost-gun/.

ATF recently changed the regulatory definition of the

statutory term “frame or receiver,” as well as related

terms such as “firearm,” “gunsmith,” and “complete

weapon.” Definition of “Frame or Receiver” and

Identification of Firearms, 87 Fed. Reg. 24,652,

24,652, 24,653 (Apr. 26, 2022). This had a substantial

and unexpected impact on the many Americans who

are part of a cottage industry of private firearms

manufacturers who make various custom firearm

parts. Id. at 24,654-24,658. 2 In promulgating its new

rule, ATF superseded several of its own previous

policy determinations upon which the firearm

industry relied, determinations under which these

This small industry goes back to the Founding era and is

woven into the history and tradition of private firearm ownership

in the United States. Joseph G.S. Greenlee, The American

Tradition of Self-Made Arms, 54 St. Mary’s L. J. 35, 45-71 (2023);

see also generally Henry J. Kauffman, Early American

Gunsmiths 1650–1850 (1952).

gunsmithing activities were legal. Id. at 24,730. Now

they are significantly curtailed. See id. at 24,72724,730.

Another recent example concerns stabilizing arm

braces.

ATF is now regulating these firearm

accessories. See Factoring Criteria for Firearms with

Attached “Stabilizing Braces”, 88 Fed. Reg. 6,478 (Jan.

31, 2023). In addition to asserting the illegality of this

rule under the Second Amendment, firearms statutes,

and the Administrative Procedure Act (APA), 5 U.S.C.

§ 551 et seq., id. at 6,499-6,507, critics point out that

this rule makes it more difficult for some individuals

with physical limitations to use a firearm and it

imposes additional costs on companies in the firearm

industry. Id. at 6,507-6,521. There are substantial

costs of various types imposed here because of reliance

on the previous regulatory framework. Id. at 6,5076,508.

B. ATF Often Seeks and Courts Often Grant

Chevron Deference to Support Changing

Interpretations of Laws Affecting Second

Amendment Rights.

ATF often expects Chevron deference in litigation,

which is extraordinary given that the right to keep and

bear arms is a fundamental constitutional right.

McDonald v. City of Chicago, 561 U.S. 742, 778 (2010);

District of Columbia v. Heller, 554 U.S. 570, 598

(2008). Such enumerated rights are “[p]remised on

mistrust of governmental power.” Citizens United v.

Federal Election Comm’n, 558 U.S. 310, 340 (2010).

Given that Second Amendment rights can be exercised

only if individuals can lawfully obtain a firearm, it is

astounding that the government would request or

receive deference on laws regulating the exercise of

such rights. But that is precisely what happens

frequently with Chevron regarding federal firearms

laws, often at the request of ATF.

Sometimes ATF prevails without that deference.

For instance, the Fifth Circuit upheld ATF’s demands

that firearm retailers report certain information. 10

Ring Precision, Inc. v. Jones, 722 F.3d 711, 714 (5th

Cir. 2013). The court held that the relevant provision

of the GCA, codified at 18 U.S.C. § 923(g)(5)(A),

unambiguously conferred this authority. Id. at 718.

But the court also opined that Chevron would

otherwise apply, id. at 717-718, so ATF would have

prevailed

even

without

clear

congressional

authorization. The Tenth Circuit similarly held that,

although a different GCA provision unambiguously

authorized ATF’s demand for information, Chevron

would have saved the case for ATF even without it.

See Ron Peterson Firearms, LLC v. Jones, 760 F.3d

1147, 1155 (10th Cir. 2014) (interpreting 18 U.S.C.

§ 923(g)(1)(A)).

A prime example of courts allowing ATF to tack one

way and then another concerns ATF’s regulation of

bump stocks. Take Guedes v. Bureau of Alcohol,

Tobacco, Firearms and Explosives, 920 F.3d 1 (D.C.

Cir. 2019) (denying preliminary injunction) (Guedes I),

superseded by, 45 F.4th 306 (D.C. Cir. 2022) (Guedes

II) (final judgment), reh’g denied, 66 F.4th 1018 (D.C.

Cir. 2023), petition for cert. docketed, No. 22-1222 (U.S.

June 20, 2023), which concerns the bump stock rules,

83 Fed. Reg. 66,514. The D.C. Circuit followed this

Court’s reasoning that, under Chevron, an “agency

need not adopt * * * the best reading of the statute, but

merely one that is permissible.” Guedes I, 920 F.3d at

17 (quoting Dada v. Mukasey, 554 U.S. 1, 29 n.1 (2008)

(Scalia, J., dissenting)); id. at 28 (quoting Atlantic

Mut. Ins. Co. v. Commissioner of Internal Revenue, 523

U.S. 382, 389 (1998) (holding the test is “not whether

[the agency’s interpretation is] the best interpretation,

of the statute but whether it represents a reasonable

one.”) (alteration in original)). The court applied

Chevron deference and upheld the regulation. Id. at

29, 32. In Guedes I, the D.C. Circuit disregarded this

Court’s instruction that “‘criminal laws are for courts,

not for the Government, to construe.’” 920 F.3d at 23

(quoting Abramski v. United States, 573 U.S. 169, 191

(2014)) 3; see also United States v. Apel, 571 U.S. 359,

369 (2014). The Court did so by taking a winding road

of precedents that were plainly irrelevant because

they predated Abramski. See Guedes I, 920 F.3d at 2325. But such is the appeal of Chevron.

This Court denied certiorari in Guedes I, after the

preliminary injunction denial, but not without a

comment from Justice Gorsuch criticizing Chevron’s

applicability. 140 S. Ct. at 789-791 (GORSUCH, J.,

statement respecting the denial of certiorari). Upon

final judgment, the panel concluded that the statute

unambiguously favored the government and thus that

Chevron deference was unnecessary. Guedes II, 45

F.4th at 313.

3 Abramski is of particular interest to Amicus NSSF, given that

it concerned a federal gun-control statute. Abramski v. United

States, 573 U.S. 169, 172 (2014).

Other circuits, however, disagree. One appeals

court held that 26 U.S.C. § 5845(b) is ambiguous and

upheld ATF’s rule under Chevron step two, a judgment

that was affirmed by an evenly divided en banc court.

See, e.g., Gun Owners of Am., Inc. v. Garland, 19 F.4th

890, 898, 906-907 (6th Cir. 2021) (en banc), cert.

denied, 143 S. Ct. 83 (2022) (mem.). 4 Another court

sitting en banc agreed that the statute is ambiguous

but held that courts must not defer under Chevron on

the bump stock rule, setting aside the rule. Cargill v.

Garland, 57 F.4th 447, 465, 471-473 (5th Cir. 2023)

(en banc), petition for cert. docketed, No. 22-976 (U.S.

Apr. 7, 2023).

Chevron’s outsized influence is witnessed when

ATF interprets other federal gun-control provisions.

Even when adjudicating immigration cases, some

courts afford deference to ATF’s interpretation of who

qualifies as an illegal alien under 18 U.S.C.

§ 922(g)(5)(A), even though ATF has no expertise in

immigration matters. United States v. Anaya-Acosta,

629 F.3d 1091, 1093-1094 (9th Cir. 2011) (per

curiam). 5 On occasion, other federal agencies will

receive the same deference under Chevron that ATF

typically enjoys, such as the Board of Immigration

Appeals regarding whether an alien here on a student

4 The Sixth Circuit subsequently held that the rule of lenity

prevails over Chevron deference regarding the bump stock rule.

Hardin v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 65

F.4th 895, 900 (6th Cir. 2023).

5 That proved to be a bridge too far for the Fifth Circuit, which

denied deference and instead invoked the rule of lenity to dismiss

an indictment under the same provision. United States v.

Orellana, 405 F.3d 360, 361, 366-369 (5th Cir. 2005).

visa falsified information when filling out a Form 4473

to purchase a firearm. Daibo v. Attorney Gen., 265 F.

App’x 56, 57-58 (3d Cir. 2008).

Still other times Chevron’s gravity is observed by

a court taking the confusing middle ground of holding

that Chevron is not warranted in a particular case in

which ATF claimed Chevron, but that the court will

nonetheless extend a nebulous, milder form of

deference. The Eighth Circuit did so regarding 18

U.S.C. §§ 922(g)(5)(A), 924(a)(2), in a case involving an

alien who no longer had legal status. United States v.

Bazargan, 992 F.2d 844, 845, 848 (8th Cir. 1993). The

Tenth Circuit later did so in another case involving 18

U.S.C. § 922(g)(5)(A), holding ATF should receive

“some deference” but the court would not decide

whether to grant “full Chevron deference.” United

States v. Atandi, 376 F.3d 1186, 1189 (10th Cir. 2004)

(citation omitted). The Fifth Circuit likewise afforded

“some degree of deference,” but not “full Chevron

deference,” in another case involving the same statute.

United States v. Flores, 404 F.3d 320, 326-327 (5th Cir.

2005), abrogated by Abramski as recognized by United

States v. Garcia, 707 F. App’x 231, 234 (5th Cir. 2017).

The Flores approach raises troubling questions. How

does a court decide when full Chevron deference is

appropriate versus “Chevron Lite”? What is the test?

Evidently Chevron’s pull is so intense that, when it

comes to ATF and gun control, Chevron applies even

when it doesn’t.

II. By Continuing to Apply Chevron Deference,

Courts Deprive Regulated Entities from

Being Able to Rely on Agency Positions.

As noted, the firearm industry is subject to many

statutes where Congress has imposed rules and

limitations on their activities. Putting aside whether

those rules and limitations pass constitutional muster,

absent Chevron and its progeny, the industry would be

able to rely on the consistent application of those

statutes. Indeed, that is what stare decisis demands,

as “it promotes the evenhanded, predictable, and

consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the

actual and perceived integrity of the judicial process.”

Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citing

Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986)). If

courts simply applied statutes based on their text,

without routinely relying on shifting interpretations

from agencies, regulated entities would be able to rely

on those judicial interpretations going forward.

True, there are instances when this Court departs

from precedent. But such departure “‘demands special

justification.’” Gamble v. United States, 139 S. Ct.

1960, 1969 (2019) (quoting Arizona v. Rumsey, 467

U.S. 203, 212 (1984)). And it is more likely to occur in

the context of constitutional matters, where “[t]he

doctrine [of stare decisis] ‘is at its weakest … because

[the Court’s] interpretation can be altered only by

constitutional amendment or by overruling our prior

decisions.’” Janus v. American Fed’n of State, Cnty., &

Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018)

(quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)).

In contrast, where a court has interpreted a statute, it

can “override [the Court’s] errors by ordinary

legislation.” Gamble, 139 S. Ct. at 1969.

These norms serve an important purpose for

regulated entities such as the firearm industry. When

an applicable statute has not changed, businesses

must be able to rely on the statute’s consistent

application going forward. Companies in a regulated

industry should be able to rely upon the agency’s

interpretation of a statute and count on the agency

adhering to that interpretation even when changing it

would be politically expedient.

In the case of ATF, the agency determined bump

stocks did not convert a firearm into a machinegun.

Following a single high-profile tragic misuse of the

accessory by a criminal, ATF reinterpreted the

statute, 26 U.S.C. § 5845(b), to conclude that they now

made a firearm a machinegun. Neither the applicable

statute nor the product changed, only the politics.

Similarly, ATF previously determined that a

stabilizing arm brace affixed to a pistol did not convert

the firearm into a rifle under NFA, 26 U.S.C. § 5845(c),

or short barreled rifle under the GCA, 18 U.S.C.

§ 921(a)(7)-(8). See 88 Fed. Reg. 6,479-6,480. A

cottage industry consequently developed over almost a

decade in full view of ATF. See id. at 6,479. Then after

two instances of the accessory being criminally

misused, ATF reversed its interpretation, saying the

accessory henceforth makes the pistol a rifle (or short

barreled rifle). See id. at 6,569-6570. Once again,

nothing but the politics changed.

The implications for companies and consumers are

significant. A consistent statutory interpretation

allows a company to design new business lines based

on an understanding of what is permitted by the

applicable statute. That includes hiring personnel,

purchasing property, designing equipment, and many

other activities. The markets for bump stocks and

stabilizing arm braces are examples of an industry

relying on previous guidance from an agency with

regulatory authority over the industry, producing and

selling products the agency had determined was legal,

then suddenly that same regulator pulls the rug out

from under the industry.

Additionally, if courts relied on the text of statutes,

rather than agency interpretations, businesses would

be able to track Congressional action (or inaction) to

understand what activities are permitted.

For

instance, the firearm industry could rely on the fact

that Congress has considered and rejected a host of

legislative proposals that would have further

regulated that industry. See, e.g., Closing the Bump

Stock Loophole Act of 2023, H.R. 396, 118th Cong.

(2023); Protecting Our Kids Act, H.R. 7910, 117th

Cong. (2022); Closing the Bump Stock Loophole Act of

2021, H.R. 5427, 117th Cong. (2022); Protecting Our

Communities Act, H.R. 3299, 117th Cong. (2021);

Bumpstocks and Acceleration Devices Act, H.R. 4594,

116th Cong. (2019); High Speed Gunfire Prevention

Act, H.R. 3606, 116th Cong. (2019); Closing the BumpStock Loophole Act, H.R. 4168, 115th Cong. (2017).

But Chevron, and the general sense that agencies

are due judicial deference, throws all this out the

window. Instead, Chevron allows significant decisions

impacting millions of Americans to change with the

political winds. Indeed, “[w]hen one administration

departs and the next arrives, a broad reading of

Chevron frees new officials to undo the ambitious work

of their predecessors and proceed in the opposite

direction with equal zeal.” Buffington v. McDonough,

143 S. Ct. 14, 20 (2022) (GORSUCH, J., dissenting from

denial of cert.).

And, as noted in Part I, this is not a hypothetical

concern. Rather, this is the norm. Indeed, this is

precisely what occurred in Buffington, where officials

at the Department of Veterans Affairs “revise[d] their

rules * * * to place new burdens on veterans” despite

“Congress * * * not amend[ing] its laws in any relevant

way.” 143 S. Ct. at 20. Thus, while the Government

may be taking steps to avoid subjecting Chevron to

judicial scrutiny by “rarely invoke[ing] it” in litigation,

id. at 22, the doctrine is clearly front of mind for the

bureaucrats writing these changing interpretations.

In fact, 90% of bureaucrats surveyed in a recent study

stated that they used Chevron when drafting

regulations. Christopher J. Walker, Inside Agency

Statutory Interpretation, 67 Stan. L. Rev. 999, 10611062 & fig. 11 (2015). Thus, the constantly changing

positions from agencies is not an incidental

consequence of Chevron.

Rather, Chevron

“encourage[s] and reward[s] just these sorts of selfserving gambits.” Buffington, 143 S. Ct. at 20

(GORSUCH, J., dissenting from denial of cert.)

(emphasis added). Indeed, the development of an

expansive Chevron doctrine has “encourage[d]

executive agents not to aspire to fidelity to the statutes

Congress has adopted, but to do what they might while

they can.” Id. And the impact is that “individuals can

never be sure of their legal rights and duties.” Id. This

turns due process on its head.

What’s more, this system imposes a disadvantage

on anyone who attempts to challenge an agency’s

shifting interpretation in court. In any such judicial

proceeding, the agency starts with ten points on the

board, as Chevron requires the reviewing court to

begin with the proposition that the agency’s

interpretation is correct, provided the interpretation is

at least “reasonable.” Scialabba v. Cuellar de Osorio,

573 U.S. 41, 57 (2014). That is true even when the

court, which is given “the ultimate interpretative

authority to ‘say what the law is,’” believes that the

agency’s interpretation is inaccurate. Michigan v.

Environmental Prot. Agency, 576 U.S. 743, 761 (2015)

(THOMAS, J., concurring) (quoting Marbury v.

Madison, 1 Cranch 137, 177 (1803)); see also

Scialabba, 573 U.S. at 57 (stating that, when an

agency’s interpretation is “reasonable,” the Court

should not “substitute its own reading”).

Indeed, courts frequently state that, when applying

Chevron, they are not necessarily in agreement that

the agency’s interpretation is correct. See, e.g., UC

Health v. National Lab. Relations Bd., 803 F.3d 669,

688 (D.C. Cir. 2015) (Silberman, J., dissenting) (“[the]

governing law, Chevron * * * for over thirty years has

banned courts of appeal from * * * rejecting an agency

statutory interpretation of supposedly ambiguous

language in favor of what a reviewing court believes is

a better or best reading”). For instance, the Eleventh

Circuit explains that “[a]n agency’s interpretation

* * * deserve[s] deference at Chevron step two [] if it’s

reasonable and consistent with the statute.” Bastias

v. U.S. Att’y Gen., 42 F.4th 1266, 1273 (11th Cir. 2022)

(cleaned up), petition for cert. docketed sub nom.

Bastias v. Garland, No. 22-868 (U.S. Mar. 10, 2023).

And, the Eleventh Circuit continued, this is true “even

if the agency’s reading differs from what [we] believe[]

is the best statutory interpretation.” Id. (alterations

in original) (quoting National Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980

(2005)). This is the impact of Chevron, “[f]or better or

worse[.]” Id.

The Tenth Circuit has held similarly, noting that,

where “Chevron’s two-step framework is inapplicable,

we accept ATF’s interpretation only if it is the best

reading of the statute.” Aposhian v. Barr, 958 F.3d

969, 979 (10th Cir.) (emphasis added), vacated en

banc, 973 F.3d 1151 (10th Cir. 2020), and reinstated

sub nom. Aposhian v. Wilkinson, 989 F.3d 890 (10th

Cir. 2021), cert. denied sub nom. Aposhian v. Garland,

143 S. Ct. 84 (2022). But once Chevron is implicated,

the Court is no longer allowed to interpret a statute in

accordance with its “best reading.” Id. (“At this second

step, an ‘agency need not adopt * * * the best reading

of the statute, but merely one that is permissible.’”)

(alterations in original) (quoting Dada, 554 U.S. at 29

n.1 (Scalia, J., dissenting)).

But this is not the system the Framers established.

Rather, “[a] fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349

U.S. 133, 136 (1955) (emphasis added). That is likely

why “we like to boast that persons who come to court

are entitled to have independent judges, not politically

motived actors, resolve their rights and duties under

law.” Buffington, 143 S. Ct. at 18 (GORSUCH, J.,

dissenting from denial of cert.). While individuals may

ordinarily “appeal to neutral magistrates,” id.,

Chevron has created an exception. When anyone

dares challenge a bureaucrat’s decision, the court may

not treat the parties equally.

Of course, due process cannot withstand such a

flawed application of the judiciary’s role in resolving

disputes. And this becomes particularly problematic

when a court is called upon to address a politically

sensitive issue such as the regulation of firearms. It is

in those situations where a neutral judgment is

especially important. See, e.g., Palmore v. United

States, 411 U.S. 389, 412 (1973) (Douglas, J.,

dissenting) (an independent judiciary was “designed to

protect litigants with unpopular or minority causes or

litigants who belong to despised or suspect classes”);

Reed v. Rhodes, 934 F. Supp. 1492, 1496 (N.D. Ohio

1996) (emphasizing importance of “fundamental

principles that ensure fair, impartial, and equitable

treatment of all interested parties” in case involving

“highly controversial area[s]”), aff’d, 179 F.3d 453 (6th

Cir. 1999). Chevron, however, distorts the

fundamental guarantee that a party will receive a fair

hearing in court.

Moreover, Chevron further twists the system by

imposing barriers to a regulated entity’s ability to

challenge Government overreach outside of the

judicial system. In the Framers’ estimation, “a

republic * * * would be more likely to enact just laws

than a regime administered by a ruling class of largely

unaccountable ‘ministers.’”

West Virginia v.

Environmental Prot. Agency, 142 S. Ct. 2587, 2617

(2022) (GORSUCH, J., concurring) (quoting The

Federalist No. 11 at 85 (Alexander Hamilton) (Clinton

Rossiter ed., 1961)).

Importantly, the Framers

“vest[ed] the law-making power in the people’s elected

representatives * * * to ensure ‘not only that all power

[w]ould be derived from the people,’ but also ‘that

those [e]ntrusted with it should be keep in dependence

on the people.’” Id. (alternations in original) (quoting

The Federalist No. 37 at 227 (James Madison) (Clinton

Rossiter ed., 1961)). When Congress passes laws that

impose onerous burdens on the citizenry, citizens may

respond by removing members of Congress through

elections. But the Framers could not have conceived

of unelected and unaccountable bureaucrats having

the power to legislate across broad swaths of the

economy with citizens having no recourse. Such a

system strips the Government of all accountability.

Thus, if Chevron remains in place, Americans

cannot rely on an agency to provide a consistent

interpretation of statutes. And industries subject to

those changing rules are deprived of their rights to a

neutral arbiter. For those who this does not force out

of the industry, they must plan for a substantial

increase in the cost of doing business to chase the

government’s ever-changing views. Once again, this

simply benefits “[t]he powerful and wealthy [who] can

plan for and predict future regulatory changes.”

Buffington, 143 S. Ct. at 20 (GORSUCH, J., dissenting

from denial of cert.).

The Court should return to the system the Framers

designed and remove the administrative state from

the judicial process of interpreting statutes.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,