A coalition led by the National Rifle Association this week sued to stop the Biden administration’s bid to regulate AR-style “pistols,” an effort that could prompt the Supreme Court to finally define what is allowed under the 231-year-old Second Amendment.
While its suit is specifically aimed at the Bureau of Alcohol, Tobacco, Firearms and Explosives and its flip-flop on regulating and taxing guns, it has the potential to both smoke out the court on what is legal under the Second Amendment and end years of practice by federal agencies and states to make up rules that Congress is supposed to set.
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“At some point, the supremes are gonna say, ‘To hell with you. We can’t trust you. We’re gonna strike it. This is what you can do. Anything outside of that you cannot,'” said NRA President Charles Cotton.
The Texas lawyer added that the court does not like to be so forceful but said the trend is in that direction after a recent series of federal court wins for gun rights.
In an hourlong interview with Secrets in Harrisburg, Pa., where the NRA has been hosting the Great American Outdoors Show, which concludes Sunday, Cotton said that state gun control laws have been falling fast as federal courts implement two key recent Supreme Court rulings granting Americans the right to have and carry guns without many restrictions.
“This rule demonstrates a clear abuse of power by the ATF. They’re clearly carrying out the Biden Administration’s anti-gun agenda and it’s got to stop. The NRA is putting its full weight behind fighting this unlawful rule.” –Jason Ouimet, NRA-ILA https://t.co/xV2gETKGvJ
— NRA (@NRA) February 9, 2023
The 2022 New York State Rifle & Pistol Association, Inc. v. Bruen decision, which followed the 2008 District of Columbia v. Heller case, opened the door to courts defining what guns and parts are allowed under the Second Amendment.
That’s where the AR pistol suit comes in. Until this month, the ATF said the guns equipped with arm braces to steady the firearms, especially for the disabled, were OK to buy with just a background check. But they have redefined them as a weapon covered by the Al Capone era National Firearms Act that requires a lengthy application, registration, photos and fingerprints, and a $200 tax.
In challenging the politically-charged flip-flop by ATF, Cotton hopes the case will land in the conservative and somewhat pro-gun Supreme Court and that it will be ruled unconstitutional. He expects that because the Bruen case reasoned that courts have to decide what is allowed based on what the nation’s founders meant in 1791 when virtually nothing was off-limits.
“Outside legal circles, Bruen is known primarily for holding correctly that citizens’ right to self-defense means they have the right to have the tools to defend themselves outside of their home. You can carry that self-defense firearm outside of your home,” said Cotton.
“But what a lot of people don’t realize is it also set a standard for how all gun laws, federal, state, and local, have to be evaluated in terms of does it pass constitutional muster. And that standard is we roll the calendar back to 1791 when the Second Amendment was adopted, the technical words are ‘is there a historical analog for the proposed current law or the existing current law.’ That’s just a fancy way of saying, ‘Was that type of restriction in existence in 1791?’ If it wasn’t, then it can’t be now,” he said.
Cotton added, “That’s why so many of the things are falling right now.” He cited gun control laws in New York, New Jersey, Louisiana, Maryland, and elsewhere that are being pulled back to conform to the recent rulings.
He predicted that a fuller definition of the Second Amendment by the court could come within two years because so many new gun cases are being filed and likely headed to the high court.
And, he added, a pro-NRA decision in the ATF case could lead to an end to federal agencies making rules and regulations over the head of Congress.
“What we want to do is get case law that makes it real clear that there really is a limit to the rulemaking authority of federal agencies,” said Cotton, who cited the ATF as an example.
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“There’s no authority for the ATF to redefine what is a pistol,” said Cotton.
“That has to be taken out because citizens should be able to look to Congress, talk to their folks that they elect, senators and House members. They should be able to communicate with them. When a law is passed, they know exactly what is prohibited what is not. They should not be subject to the regulatory whims of any federal agency and certainly for our issues, the ATF. And those whims change with the political winds whenever we have a change in the White House,” he added.