Op-Ed: Lawyers, guns, and water

Gun Rights

By Bette Grande | The Heartland Institute

A Federal District Court in North Dakota is becoming ground zero in the fight over federalism and the autonomy of states to protect the rights of their citizens.

On February 9, 25 states along with a coalition of firearms advocates filed a complaint in U.S. District Court in North Dakota to challenge the latest administrative ruling impacting our right to self-defense by the Bureau of Alcohol, Tobacco, and Firearms (ATF). One week later, 24 states filed a complaint in U.S. District Court in North Dakota challenging the Environmental Protection Agency’s (EPA) latest Waters of the United States (WOTUS) rule.

For anyone paying attention, the question of who controls this country, and our lives, is really not a question at all. There was a time when the people were in control and those we elected understood their primary role is to protect our God-given rights. At least I tell myself that there was such a time. But the truth today is that bureaucrats in federal three-letter agencies control our lives.

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Still, some states are fighting back.


On January 13, U.S. Attorney General Merrick Garland signed ATF final rule 2021R-08F. The nearly 100-page rule redefines pistols with an arm brace as short-barreled rifles. This new definition subjects these pistols to the gangster era National Firearms Act (NFA), requiring registration and a hefty fee. An owner of these pistols who does not register with a federal database and pay $200 by May 31, 2023, has committed a felony, subject to 10 years in prison.

This back-door gun regulation will force people who legally bought these pistol braces to pay a tax and self-report to a government that already sees them as a “domestic threat to democracy.” We can expect the government to cross reference this list with the CDC’s list of unvaccinated Americans, woe to you if you show up on both lists!

According to the complaint, the original Pistol Stabilizing Brace® was invented in 2012 by Alex Bosco, a military veteran and co-founder of Plaintiff, SB Tactical. One day, Bosco was at a shooting range with a friend who is a disabled combat veteran. The disabled vet was asked to stop shooting over safety concerns with his inability to control his firearm.

Tinkering in his garage, Bosco developed the prototype brace and the design makes the brace an orthotic device similar to a forearm crutch. The brace was a revolutionary breakthrough for disabled people who can now safely use their firearms for recreation and security. Hardly Al Capone material.

Montana Attorney General Austin Knudsen said, “This rule is simply a continuation of President Biden and his ATF puppet Steve Dettelbach’s assault on the gun rights of law-abiding Montanans. Under their gun control regime, millions of Americans owning these simple accessories now have a choice: register them with the ATF with a ridiculous fee or face federal criminal charges,” in a statement announcing that Montana joined the legal action. He continued, “This rule is flagrantly unconstitutional. Attaching a common pistol-stabilizing brace does not magically transform a pistol into a federally regulated short-barreled rifle.”

The plaintiffs see this as a Second Amendment case, which it absolutely is. But it also raises a broader question related to the scope and authority of federal agency rule making. Jason Ouimet, executive director of the National Rifle Association Institute for Legislative Action, put it this way, “The ATF can only apply federal statutes; it can’t rewrite them.” If only members of Congress felt that way.

The question will likely go the U.S. Supreme Court and could lead to the long-anticipated repeal or revision of the Chevron Doctrine, which gives deference to agency rule making. The Court punted on addressing Chevron last term, but seems inclined to take up the question.


“Whiskey is for drinking. Water is for fighting.” This quote is often attributed to Mark Twain, but whoever first said it, in my experience in the North Dakota legislature, it rings true. Water is vital to farmers and ranchers, which is why 24 states (led by West Virginia Attorney General Patrick Morrisey) are again challenging EPA overreach. “This new final rule is a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of Congress,” Morrisey said. “This is yet another attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States.”

Indeed, it is.

In 2015, an earlier attempt by the EPA under President Obama to significantly broaden its authority under the 1972 Clean Water Act (CWA) was challenged by 31 states in several lawsuits and eventually enjoined in 28 states. Under President Trump, the EPA revised and scaled back the rule in 2020. However, under Biden, the EPA lurched back with an aggressive WOTUS rule in 2021 that went into effect earlier this year.

With Congress unwilling to weigh in on the CWA, farmers, ranchers, miners, and others are whipsawed from administration to administration. Many hope the U.S. Supreme Court will put this issue to bed when it rules on Sackett v. Environmental Protection Agency, yet another fight over the reach of the CWA that was argued before the Court last October. West Virginia Attorney General Morrisey, who supported the plaintiffs in Sackett, said, “The Supreme Court needs to define once and for all the term ‘Waters of the United States’ in such a way that state lands and waters are not subject to the whims of unelected bureaucrats.”

Congressional Review Act

It is unfortunate that keeping federal agencies in check is now almost completely in the hands of the courts. Congress has the constitutional authority to pass laws, and to oversee the implementation of those laws by federal agencies. State legislatures routinely review administrative rules issued by state agencies to ensure that the application of statutes follows legislative intent.

But Congress is shirking its oversight responsibilities, and bureaucrats in Washington, DC are more than happy to fill the void. And, don’t get me started on the toothless Congressional Review Act (CRA). Congress has willingly, and all too happily, handed over its authority to the bureaucrats. So, we are left with the courts to imperfectly referee the scope of state and federal powers.

When it comes to our unalienable rights, guns and water play a vital role. The Supreme Court will likely be asked to weigh in on both of these lawsuits and the fight is far from over. Every American needs to support our state lawmakers and executive branch privately and publicly to push back on the federal administrative state and the “uniparty” that supports it.

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