WASHINGTON — On August 11, nearly 50 lawmakers from both the Senate and the House signed a joint letter urging Attorney General Todd Blanche not to appeal the recent ruling out of the Northern District of Texas finding portions of the National Firearms Act unconstitutional.
The effort was led by Representative Andrew Clyde, who was joined by a coalition of 47 lawmakers – all Republicans – in response to the August 5 decision issued by the United States District Court for the Northern District of Texas in the case known as Silencer Shop Foundation v. ATF.
The decision struck down the National Firearms Act’s ability to regulate untaxed firearms, including popular items such as short-barreled shotguns and rifles, suppressors, and any other weapons. The federal government has until today, August 12, to file an appeal in this case.
Gun rights groups have argued for both positions, with some asserting that an appeal followed by a decisive victory in the Fifth Circuit would provide a more defensible legal framework, while others have argued that the federal government should not be in the business of embracing or defending any gun control measure.
The joint letter takes the latter approach, urging the DOJ to “immediately apply the court’s ruling nationwide and set it in regulation through rulemaking.” Many legal scholars and gun rights advocates have noted that the DOJ’s rulemaking power through the ATF is subject to the bias and policies of each administration, with rules able to be revoked and rescinded at any given time. The letter adroitly addresses this very topic:
But immediate application alone is not a complete or durable solution. An operating position adopted under the DOJ’s own discretion can be reversed by a future Attorney General or ATF Director without notice or process, leaving gun owners and businesses again exposed to enforcement of provisions a federal court has already held unconstitutional.
Nonetheless, the letter points out that rulemaking is necessary to avoid the inevitable split-enforcement scenario (which we covered previously):
Immediate application of the ruling nationwide is necessary to avoid the untenable alternative in the interim: a split enforcement regime in which the DOJ applies these requirements to one gun owner while declining to apply them to his neighbor, solely because one person happens to be a customer of Silencer Shop or a member of Gun Owners of America. Administering that kind of regime would require the DOJ and ATF to maintain two parallel tracks for identical conduct depending on the applicant’s affiliations.
The letter argues that the DOJ holds the authority to execute these measures, stating, “Both steps we describe here – immediate nationwide application and subsequent rulemaking – are actions within the DOJ’s own executive authority, undertaken independently of the scope of the court’s order, not an assertion that the injunction itself applies to non-parties.”
We will be watching the situation closely and reporting as it develops.
