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OSD 247: ATF and the terrible, horrible, no good, very bad week
On the coming winter for administrative law.
On December 10, 2020, the ATF raided Polymer80 and as the first major step in their goal to ban 80% receiver kits. The week after that, the ATF announced that they were going to start considering effectively all braced pistols to be SBRs. We wrote those two events up as:
This week, three years later, those projects failed in federal court. The ban on homemade gun kits was struck down on its merits by the Fifth Circuit. And the brace ban was blocked by an injunction from a district court. Both rulings can still be appealed by the ATF, so none of this is final. But at this point, the writing is on the wall. The ATF is almost certainly going to keep losing in these cases.
The most interesting thing about these cases is that despite the subject matter, they don’t involve gun rights at all. They’re administrative law cases about whether the ATF has the power to make these rules in the first place — the cases don’t even reach the question of whether the rules violate the Second Amendment.
A characteristic of the American legislative process is that it’s very difficult to pass a law. See “OSD 195: Majority rules” for more on that.
A characteristic of administrative law is that it’s very easy to pass a new rule. See “OSD 105: The ATF is giving out machine guns, whether you want one or not” for more on that.
Those characteristics are regarded as features, not bugs, by the advocates of each system. Those characteristics are at odds with each other, which is why each system’s advocates view the opposite system with suspicion:
Person who likes the traditional legislative process’s promiscuous distribution of veto power: “Why would you want to make it easier for the government to do whatever it wants?”
Person who likes the speed and technocracy of administrative law: “Why would you want to make it harder for the government to do what it thinks is best?”
When the ATF passes a new rule, it’s tempting to litigate the details of that rule. They’re often silly (e.g. who can forget the 2014 classic “a brace is fine, but touching it to your shoulder is a felony”), so it’s good bait.
But there are two problems with that:
You will lose. You’re arguing with the referee. How many times have you seen a ref go, “Oh sorry coach, you’re right, my bad.”
It gives away the highest-leverage question — the ATF might be right or wrong in any particular instance, but it’s a lot more powerful if you can establish that they aren’t allowed to have an opinion at all. Debating the object-level wisdom of their rules grants the premise that they have the power to make the rules.
Re #2, “everything would go great if everyone did what I want” might be a nice tautology, but it’s not a viable plan. Milton Friedman proposed a better framework:
People have a great misconception in this way: they think the way you solve things is by electing the right people. It’s nice to elect the right people, but that isn’t the way you solve things. The way you solve things is by making it politically profitable for the wrong people to do the right things.
And an alternative to that is to take away their power to do the wrong thing.
This week’s links
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