21-159 APOSHIAN v. GARLAND

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  • pcfixer

    Active Member
    May 24, 2009
    5,466
    Marylandstan
    https://www.supremecourt.gov/Docket...2162648893_2021-11-22 Aposhian cert reply.pdf

    ARGUMENT
    Throughout the history of this case, from ATF’s
    promulgation of the bump-stock regulation as a final rule in 2018 through the government’s defense of the
    rule in the court of appeals (and three other circuits), the government has argued that the rule simply gives
    effect to the best reading of the unambiguous statutory language and that the agency, therefore, neither wants nor is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
    So too here. The government emphasizes in its opposition to the Petition that “neither Petitioner
    nor the government accepts the premise that the final rule was an exercise of delegated authority to resolve
    a statutory ambiguity.” BIO 15.
     

    Allen65

    Active Member
    MDS Supporter
    Jun 29, 2013
    5,630
    Anne Arundel County
    This case is as important as the NY one, but on its surface it's about regulatory administrative technicalities, so it hasn't gathered the attention it deserves.
     
    Oct 29, 2021
    740
    Dallas, texas
    This case is as important as the NY one, but on its surface it's about regulatory administrative technicalities, so it hasn't gathered the attention it deserves.

    It is because of the actual question of Chevron Defferance.

    If we win this case based in Chevron Defference, it will keep many other Government departments from enacting Criminal laws without the Legislature.

    This will also settle the issue of trigger issues as well as pistol braces.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    46,384
    SoMD / West PA
    This case will be put on hold pending NYSPRA v NY is settled.

    But they cant put it on hold until it goes to conference first.

    Maybe

    This court has been smacking down the huge over reach lately.

    IIRC, it was last year or the year before that they opined on Chevron, which could be the vehicle for a GVR.
     

    jcutonilli

    Active Member
    Mar 28, 2013
    2,237
    They denied another bump stock case (Guedes v ATF) because it was an interlocutory appeal and not a final judgment. This is at the same stage. They will likely deny the case for the same reason.
     
    Oct 29, 2021
    740
    Dallas, texas
    https://www.firearmspolicy.org/guedes-v-batfe

    Guedes v ATF is still being litigated.

    I think that they will deny this one and wait.

    The thing a lot of people forget when it comes to SCOTUS accepting one case and denying cert on another similar case, boils down to two things many forget.

    1. The actual details of the specific case, and
    2. Sometimes they want to make a point to a certain state or entirety,

    NY/NYC pissed off the Supreme Court when they mooted a case last year. They accepted this one partly to make a point to NY and partly because this case was better suited to be heard then the NJ case that they denied cert on,

    Which case would be better for them to issue an opinion on is all dependent on the facts of the case.

    This case revolves around the use of Chevron Deference and if it can be used or not, as well as the exemption rule, that states if their is ambiguity in a rule or law, it has to be found to be on the side that benefits the government in the LEAST possible way, and to the citizen in the greatest possible way.

    That’s what this case is based on. It is not based on the fact of if a bump stock should or shouldn’t be called a machine gun, or even if banning bump stocks is unconstitutional in relation to the 2A or even the 14th.

    They might take this case based solely on the issue of Chevron defference. Then again maybe they won’t.

    Keep in mind their are 5 other Bump Stock cases still pending in lower courts that could make their way up for SCOTUS review if SCOTUS should deny cert in this case. So we still have hope.

    Remember they choose one similar case over another simply over t which facts of which case offered them the best question(s) for them to answer. Which is all based on the actual facts surrounding the case.
     
    Oct 29, 2021
    740
    Dallas, texas
    Folks,

    Keep in mind what this case is actually based on….

    It is not based on the fact of if a bump stock should or shouldn’t be called a machine gun, or even if banning bump stocks is unconstitutional in relation to the 2A or even the 14th.

    It is based on Chevron Deference and on the ambiguity rule. Which works better in our favor. If it’s found that it can’t be used, and the ambiguity rule applies, then what it means is that the ATF can’t and won’t be allowed to make something illegal without congress explicitly saying so.

    So if found in our favor, the issue of Pistol Braces, and Binary triggers,or other trigger devices won’t be up to the ATF anymore, but up to congress. Same thing still applies to the bump stocks.

    So even if we win this case. Congress could still come out and ban them in a NEW law. If they do that, we would have to fine a new case, and the courts would have to determine if Bump Stocks were covered by the 2A.

    The 14th ammendment would only come into play if they didn’t put in a grandfather clause and said we had to dispose of them or have them confiscated.

    We need this case to be accepted and heard and found in our favor to keep the ATF and FCC and FAA and other gov departments from criminal regulatory over reach.
     

    camo556

    Active Member
    Aug 29, 2021
    2,634
    The thing a lot of people forget when it comes to SCOTUS accepting one case and denying cert on another similar case, boils down to two things many forget.

    1. The actual details of the specific case, and
    2. Sometimes they want to make a point to a certain state or entirety,

    NY/NYC pissed off the Supreme Court when they mooted a case last year. They accepted this one partly to make a point to NY and partly because this case was better suited to be heard then the NJ case that they denied cert on,

    Which case would be better for them to issue an opinion on is all dependent on the facts of the case.

    This case revolves around the use of Chevron Deference and if it can be used or not, as well as the exemption rule, that states if their is ambiguity in a rule or law, it has to be found to be on the side that benefits the government in the LEAST possible way, and to the citizen in the greatest possible way.

    That’s what this case is based on. It is not based on the fact of if a bump stock should or shouldn’t be called a machine gun, or even if banning bump stocks is unconstitutional in relation to the 2A or even the 14th.

    They might take this case based solely on the issue of Chevron defference. Then again maybe they won’t.

    Keep in mind their are 5 other Bump Stock cases still pending in lower courts that could make their way up for SCOTUS review if SCOTUS should deny cert in this case. So we still have hope.

    Remember they choose one similar case over another simply over t which facts of which case offered them the best question(s) for them to answer. Which is all based on the actual facts surrounding the case.

    Unlikely. As was pointed out above, this particular case case is still in an early posture.

    If you doubt it, go back and read Gorsuch's statement in guedes v batfe:

    https://d3n8a8pro7vhmx.cloudfront.n...3168143/2020-3-2-scotus-guedes.pdf?1583168143

    Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review.The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.


    Its fairly clear they will wait for the appellate courts to weigh in on this issue. Of those the D.C. is the heavyweight in administrative law, I would be surprised to see anything before a D.C. appellate opinion in guedes v batfe.

    It will be interesting whether the appellate courts heed Gosuch's warning that Chevron does not apply to statutes with criminal liability. They are running the risk of getting biatch slapped with a P.C. opinion at this point. According to lore, it takes 6 votes for a P.C. opinion, and on this issue I can count at least that high.
     
    Oct 29, 2021
    740
    Dallas, texas
    Unlikely. As was pointed out above, this particular case case is still in an early posture.

    If you doubt it, go back and read Gorsuch's statement in guedes v batfe:

    https://d3n8a8pro7vhmx.cloudfront.n...3168143/2020-3-2-scotus-guedes.pdf?1583168143




    Its fairly clear they will wait for the appellate courts to weigh in on this issue. Of those the D.C. is the heavyweight in administrative law, I would be surprised to see anything before a D.C. appellate opinion in guedes v batfe.

    It will be interesting whether the appellate courts heed Gosuch's warning that Chevron does not apply to statutes with criminal liability. They are running the risk of getting biatch slapped with a P.C. opinion at this point. According to lore, it takes 6 votes for a P.C. opinion, and on this issue I can count at least that high.

    I never said that cert for this case was guaranteed at all. I saw his statement before.

    I wasn’t surprised about the denial on the other case. I wouldn’t even be surprised if a denial came on this case either. I would be surprised if it was denied without some form of dissent not issued though.

    There are plenty of Bump Stock cases still in the lower courts for them to choose from. I am betting Gorsuch as well as Thomas is keeping a close eye on all of them to see how they develop.

    I like to think positive though, with a touch of being real, rather then be a pessimist.

    I really think that when an opinion on NYSPRA v NY decision comes, it will have some form of effect on other 2A cases in the lower courts. Even if the only similarity is that it’s a 2A case. We probably will get a few Federal judges to fall in line, and a few others that may even retaliate in every way possible.
     
    Oct 29, 2021
    740
    Dallas, texas
    6 Bump Stock Cases pending in the following Circuit Courts

    5th Circuit
    Cargill v Garland oral arguments held… waiting on decision

    6th Circuit
    Hardin V ATF On Hold

    6th Circuit En Banc
    GoA v Garland oral arguments held, waiting decision

    D.C. Circuit
    Guedes v ATF oral arguments held, waiting decision

    Federal Circuit
    Correa v Garland on Hold
    Three Modern Sportsman v USA En Banc filed


    District court has 1 cases
    5th Circuit
    Lane v USA On hold


    So even if this one gets denied, the game ain’t over yet.
     
    Oct 29, 2021
    740
    Dallas, texas
    interestingly enough,

    3 Bump stock Cases are on Hold

    3 Oral Arguments have been heard, waiting on Opinion to be released.

    1 case and En Banc has been filed, not yet granted or denied.

    2 in the 5th, 2 in the 6th. At least those two circuit/district courts are NOT the most hostile towards 2A concerns. Not as much as the 9th, 1st, and 2nd Circuits are!

    D.C. Circuit though is weird, they could go either way. Federal Circuit is IMHO more hostile then D.C. but both are more hostile then the 5th or 6th.
     

    jcutonilli

    Active Member
    Mar 28, 2013
    2,237
    6 Bump Stock Cases pending in the following Circuit Courts

    5th Circuit
    Cargill v Garland oral arguments held… waiting on decision

    6th Circuit
    Hardin V ATF On Hold

    6th Circuit En Banc
    GoA v Garland oral arguments held, waiting decision

    D.C. Circuit
    Guedes v ATF oral arguments held, waiting decision

    Federal Circuit
    Correa v Garland on Hold
    Three Modern Sportsman v USA En Banc filed


    District court has 1 cases
    5th Circuit
    Lane v USA On hold


    So even if this one gets denied, the game ain’t over yet.

    interestingly enough,

    3 Bump stock Cases are on Hold

    3 Oral Arguments have been heard, waiting on Opinion to be released.

    1 case and En Banc has been filed, not yet granted or denied.

    2 in the 5th, 2 in the 6th. At least those two circuit/district courts are NOT the most hostile towards 2A concerns. Not as much as the 9th, 1st, and 2nd Circuits are!

    D.C. Circuit though is weird, they could go either way. Federal Circuit is IMHO more hostile then D.C. but both are more hostile then the 5th or 6th.

    The oral arguments for Guedes v ATF have not been held yet. They just got permission to change the oral argument date, but that date has not been set.

    The main case in the Fed Circuit is McCutchen v. US. Three Modern Sportsman v USA is identical to McCutchen. While these two cases are bump stock related, they are not disputing the regulations. They are simply making a 5A takings claim.

    It is Codrea, not Correa and this case is on hold pending resolution of McCutchen. It was being litigated alongside Guedes in the DC Circuit, but they moved to the Fed Circuit for appeal. I suspect they are moving forward with the takings claim, which is why they moved circuits and why it is on hold.
     

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