Scholarship Highlight: Felons, Bump Stocks, and More

Here are some new and interesting firearms law and adjacent pieces of scholarship published recently, including some really insightful student notes and an especially timely and in-depth look at the bump stock ban.

• Mia Romano & Dru Stevenson, Litigating the Bump-Stock Ban, 70 U. Kan. L. Rev. 243, (2021)

From the Introduction:

If a law professor dreamed of a case that could touch on the most substantial issues taught in administrative law classes, he would dream of Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. The case runs the gauntlet, featuring issues of statutory construction and deference, the procedural requirements under the Administrative Procedures Act (“APA”), the Appointments Clause and statutory conflicts between vacancy statutes, standing, exceptions to Chevron deference including questions of waiver, and allusions to many more textbook issues. Because some of these issues are less settled than others, a companion case--Aposhian v. Barr, features some alternative outcomes such as the lower court characterization of the agency action at issue as interpretive, in opposition to the preliminary findings in Guedes, where the court held the Bump-Stock Rule was legislative. Both cases reviewed challenges to a final rule published by the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). When the Supreme Court denied a writ of certiorari for injunctive relief in Guedes, one Supreme Court Justice issued a statement raising more administrative law questions and challenging some administrative law presumptions that, if borne out, could further unsettle substantial administrative law issues.

At the heart of the dream case lies a dispute over the definition of “machine gun” and a rule promulgated by the agency to clarify the meaning of two terms contained in the statutory definition that are not otherwise defined. This article attempts to address all of the major administrative law issues raised in Guedes and their potential outcomes by walking through a Chevron analysis, starting with (1) whether the Bump-Stock Rule satisfies Chevron step zero, then looking at (2) whether any exceptions prevent the application of Chevron, and ending with (3) whether the Bump-Stock Rule satisfies the test in Chevron, thus warranting Chevron deference. Under existing precedent, Chevron deference applies to the Bump-Stock Rule. This article tries, however, to anticipate the nuanced (or watershed) deviations at each stage of the analytical process that present themselves to the Supreme Court if either case (or both) come before the Court on their merits.

• Maya Itah, How the Gun Control Act Disarms Black Firearm Owners, 96 Wash. L. Rev. 1191 (2021)

From the Abstract:

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute's language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to the Civil Rights Movement. Next, Part II outlines the ways different circuits have interpreted § 924(c), demonstrating how those interpretations disadvantage Black defendants. Finally, Part III puts forth two proposals for reform: interpreting § 924(c) more narrowly, or simply removing the language at issue from the GCA. These reforms would reduce racial disparities in the enforcement of § 924(c). They would also reaffirm the right of Black Americans to keep and bear arms for self-defense.

• Anthony J. Zarillo III, Going Off Half-Cocked: Opposing As-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. S 922(g)(1), 126 Penn St. L. Rev. 211, (2021)

From the Abstract:

The scope of government restrictions on the sale, possession, and use of firearms is currently one of the most hotly contested political issues facing the United States. Opponents of gun control legislation argue that stringent government restrictions on firearms violate the Second Amendment's guarantee that “the right of the people to keep and bear Arms, shall not be infringed.” In contrast, proponents of gun control legislation argue that vigorous restrictions on firearms are essential to maintain public safety and curtail gun violence.

Despite being at the forefront of political debate, the Supreme Court speaks infrequently on the scope of the Second Amendment, having only published three Second Amendment opinions. Because of the Court's silence on the scope of the Second Amendment, the circuit courts of appeals have struggled with Second Amendment issues.

One such Second Amendment issue that has confounded the circuit courts of appeals is the validity of as-applied challenges to 18 U.S.C. § 922(g)(1), the federal law that makes it unlawful for persons convicted of a felony to possess, purchase, or sell a firearm. Every circuit court has  upheld 18 U.S.C. § 922(g)(1) on its face. A circuit split, however, continues to persist on the issue of whether a convicted felon can challenge the law as unconstitutional when applied to the individual's specific circumstances.

This circuit split has led to inconsistent application of § 922(g)(1). Because the circuit split surrounding § 922(g)(1) leads to inconsistent application of the felon-in-possession prohibition, as-applied challenges should not be entertained. Not only is this consistent with the Supreme Court's Second Amendment jurisprudence, but as-applied challenges should also always fail the two-step analytical framework used by most circuits. Furthermore, by not entertaining as-applied challenges, 18 U.S.C. § 922(g)(1) will be applied consistently and fairly across the United States.

• Joshua McCroskey, Held at Gunpoint: Applying the Physical Restraint Sentencing Enhancement, 73 Fla. L. Rev. 919 (2021)

From the Abstract:

Federal circuit courts of appeal often disagree about how to interpret the United States Sentencing Guidelines. One contentious guideline is the physical restraint sentencing enhancement. This enhancement increases the sentence of a defendant who physically restrained a victim during a crime. Circuit courts disagree about whether to apply this enhancement to a defendant who points a gun at a victim and tells that victim not to move. Four circuit courts interpret the physical restraint enhancement narrowly and only apply it when a defendant does something highly similar to tying or locking up a victim. Three circuits interpret the enhancement very broadly and uphold the enhancement's imposition on defendants who do no more than point a gun and instruct a victim not to move. Three other circuits interpret the enhancement broadly but have not explicitly ruled on whether it applies to a defendant who brandishes a firearm and issues a threat. Two circuits take an approach between the other circuits. This Note argues that the text of the enhancement, the relevant commentary in the Guidelines, existing sentencing options, and the American judicial system's preference for liberty require a narrow interpretation of the physical restraint enhancement. Courts should only apply the enhancement when a defendant restrains a victim by applying force that touches the victim or by confining the victim in a space that appears locked. Regardless of which interpretation is currently correct, the U.S. Sentencing Commission should clarify this issue.