How SCOTUS’ Chevron Decision Threatens Gun Regulation

On June 28, the conservative majority on the Supreme Court overturned a four-decade-old legal precedent known as the Chevron rule, which allowed federal agencies to broadly interpret federal law.

Legal experts told The Trace the ruling could have implications for the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency that regulates firearms.

“The opinion will affect gun regulation as much as it affects all agency regulations, if not more,” said Eric Ruben, an assistant professor of law at Southern Methodist University. “Courts are particularly divided on gun law right now, and some courts will be inclined to interpret narrowly the federal laws that delegate authority to the ATF.”

Chevron said courts should defer to federal agencies to interpret ambiguous federal regulations. Courts, not government experts and scientists, will now decide whether federal regulations are consistent with Congress’s intent.

The verdict was passed by a vote of 6-3. Loper Bright Enterprises v. Raimondo gives courts unprecedented veto power over federal regulations and could also weaken the authority of other agencies such as the Food and Drug Administration, the Environmental Protection Agency, the Consumer Financial Protection Bureau, the Consumer Product Safety Commission and the Department of Labor.

The ATF issues regulations in response to advances in firearms technology, as it has done in recent years with bump stocks, ghost gun kits and pistol grips. Now courts, whose judges are not necessarily firearms experts, will have to interpret federal statutes.

Congress can pass laws directly addressing these areas of the law, as the court’s conservative justices suggested when they struck down the ATF’s bump stock rule earlier this month. But Congress has been slow to act and constrained by political polarization.

“The court wants Congress to take the lead in regulating the country,” said Adam Winkler, a law professor at the University of California, Los Angeles. “But you have to wonder whether that’s not a misconception. Congress seems structurally incapable of solving any of the major problems that the country faces today.”

This Loper Light ruling could effectively paralyze the ATF’s rulemaking authority, exposing a wide range of rules and regulations to legal challenges. “One of the things that repealing Chevron does is encourage litigation,” Winkler said. “It opens the floodgates for any regulation to be challenged. So litigants will be motivated to bring cases because now they have a better chance of winning.”

That could have a chilling effect on the ATF, which might think twice about issuing a rule that will be tied up in court for years and ultimately struck down. “The mere fact that you’re going to have to deal with these lawsuits could make regulators more reluctant to adopt the rule,” Winkler said. And federal regulators will now have to factor in the likelihood that the rule will be struck down when calculating its chances of success.

SCOTUS had the opportunity to address Chevron in its recent decision to invalidate the bump stocks but bypassed it. Garland v. CargillThe court’s conservative justices ruled that the definition of “machine gun” in federal law did not apply to bump stocks, and as a result, the ATF overstepped its authority in regulating them. That statute was clear, ambiguous, so the ATF had no respect for Chevron.

Winkler, the UCLA professor, said that repealing Chevron could make courts more compliant with some federal agencies than others. But “it’s conceivable that the Supreme Court will be less compliant with gun regulators because of the court’s support for the Second Amendment,” he said, citing a recent bump stock decision.

For all the obstacles that Chevron’s takedown would create for the ATF, “there’s not a lot of significant regulation that the ATF can take on when it comes to gun regulation,” Winkler said. That’s because pro-gun lobbyists have had a hand in writing gun laws that include curtailing the ATF’s authority. “Even if you just make it harder for these agencies to operate, their scope of operation is very small.”

Chevron has been used to uphold aspects of some of America’s most fundamental gun laws, including the FBI’s authority to temporarily store background check records for audit purposes and the ban on undocumented possession of firearms. According to Justice John Roberts, who wrote the majority opinion, Loper Light The ruling is not retroactive, so any regulations based on Chevron would not be affected — though Justice Elena Kagan wrote in her dissenting opinion that “some agency interpretations that were never challenged under Chevron will now be challenged.”

This opinion will have as much impact on firearms regulations as it does on all other agencies’ regulations, perhaps more.

Eric Ruben, assistant professor of law at Southern Methodist University

The Chevron repeal was immediately welcomed by conservatives who have sought for decades to gut federal power, particularly in the area of ​​environmental regulation. Gun rights groups also welcomed the decision. “For 40 years, the Chevron precedent has allowed ATF and other enforcement agencies to run wild and interpret the law arbitrarily to the detriment of our natural rights,” the Firearms Policy Coalition wrote on X, the social media platform formerly known as Twitter.

In amicus curiae briefs filed with the Supreme Court, the Firearms Policy Coalition, the National Shooting Sports Foundation, and Gun Owners of America argued that the ATF used Chevron to essentially change federal firearms laws by citing the bump stock provision, a provision that updated the ATF’s definition of a firearm to allow it to regulate ghost guns, and a provision regarding handgun stabilizers.

Gun Owners of America argued in a post on X that “judges used Chevron against the Second Amendment,” consistently siding with the ATF that its statutes were “reasonable.” “Thank God the Chevron absurdity is over,” the group wrote.

The Supreme Court’s liberal minority argued that federal agencies have greater expertise than courts and are best placed to interpret federal regulations. “Congress knows that it does not—indeed, cannot—write wholly complete regulatory statutes,” Justice Kagan wrote in her dissenting opinion, which she read aloud from the bench. “It knows that those statutes will inevitably contain ambiguities that some other entity will have to resolve.” Some of those ambiguities “involve scientific or technical issues. The agencies have expertise in those areas; the courts do not.”