New ATF guidance on gun sales is legally meaningless (or else it would be unlawful)

Washington Post ^ | January 5 at 11:43 AM | By Jonathan H. Adler

[Lazamataz]

.... snip....

.... Taken at face value, the new ATF guidance is thus nothing more than a restatement of existing legal requirements. It merely identifies those who are already subject to the relevant federal requirements and does not in any way expand the universe of those gun sellers who are required to obtain a license and perform background checks. In other words, it is -- as the document says -- a guidance, and not a substantive rule. It has no legal effect.

If the ATF guidelines are nothing more than a guidance -- an indication of the sorts of things that might trigger a federal investigation or prosecution, but not a tightening of the relevant legal standard -- why would the administration do this? There are several potential answers. First, guidance documents are often useful insofar as they explicate relevant legal standards and (as the name implies) provide guidance to the regulated community. Such documents can help people know when they are subject to specific legal requirements. Further, if there are people who should have federal gun licenses but have neglected to obtain them, the guidance document might encourage greater compliance with federal law.

A second potential reason for issuing a guidance document of this sort, as Eugene Kontorovich suggests, could be that the administration hopes to "chill" marginal gun sales. Although a guidance document does not change the relevant legal standard, the issuance of such a document can affect behavior. Individuals who learn they are closer to the relevant legal line than they had realized might be encouraged to comply with the relevant legal requirements, or they may opt to stop selling guns. In this way, a guidance document may help to discourage behavior the government wishes to control but which may lie beyond the government's legal reach.

.....

[Lazamataz]

I kinda dig it that I, formally untrained in Constitutional Law, have the same takeaway that a Professor of Constitutional Law has. :)

[humblegunner]

Clearly you are superior to everyone.

[Lazamataz]

You got issues.

[READINABLUESTATE]

I too am formally untrained in Constitutional Law. Ditto on the rest.

[humblegunner]

You got issues.

None of which cause me to think I am some kind of brilliant savior what needs to inform the lesser people.

[Lazamataz]

I too am formally untrained in Constitutional Law. Ditto on the rest.

What it informs me is that the years I have spent on Free Republic have given me (and you) an education. This place is effing awesome!

JimRob. THANK YOU.

[Newtoidaho]

Federal agencies use these “guidance” interpretations in their investigations all the time. They internally interpret them as having the same legal force as the underlying regulation.

[Lazamataz]

I POSTED AN ARTICLE.

AN ARTICLE.

NOT EVEN MY OPINION.

YOU GOT ISSUES.

TAKE THIS TO FACEBOOK PLEASE.

[Bratch]

"yours is superior..."

[holden]

I think there will be perhaps many thousands of government cubicle voyeurs looking at peoples' medical records and wondering to what profitable use they could put such records.

Violations of HIPAA seem to be enouraged though the dictator's directives. That seems to have legal consequence.

HF

[colorado tanker]

Ah, but you are our very own Professor of Hitting It! Your highly developed instincts have detected, once again, when this regime is screwing with us.

[Sasparilla]

Severeral years ago the government took actions that significantly cutting down on the number of gun dealers. Now, Zero wants everyone to be a gun dealer. Probably because of the warrantless searches that BATFE can do of licensed gun dealers.

[Teacher317]

You DO understand that this is a discussion forum, don’t you? Posting current events articles to discuss with others is kinda the point. Whoever peed in your Cheerios this morning must’ve had a reason, I’m betting.

[NELSON111]

I was gonna ask the same thing...or make a subtle suggestion to the disgruntled Hg...but you beat me to it...

[Lazamataz]

Ping list ping, this is a good takeaway from Jonathan Adler.

[Lazamataz]

We talked it out. Everyone please stand down.

[Norm Lenhart]

Legally perhaps. But as we all know Law and Obama are not in the same universe. He does this because the GOP will do nothing to stop him.

He also does this as the traditional incrementalist approach of all communists. People will view it as ‘settled law’ because they will be told by liberals and the media it is law.

The next step is to ignore that it is not and pass more such ‘law’, rinse and repeat. Then when ‘overturned bu Cruz or trump, it is a rally cry to the liberals.

[volunbeer]

What he wants or desires and what he released today are miles apart. It was not anything close to what many said it would be and frankly it does not change much. The issues of mental illness and the 2A remain among the most difficult in my opinion for society to address, but the bar remains very high for mental illness prohibition. The law states adjudicated (by a court) as a mental defective or involuntarily committed to a mental institution by a health care provider. The latter category is not always shared by medical providers with law enforcement. It remains a high legal bar despite all the hyperbole.

[EEGator]

Thanks for the ping.

[MHGinTN]

Are you telling us that in all these years you’ve been a Freeper, you have never learned anything from someone else’s posts, that the discussions are meaningless to you? Gosh, I have just the opposite testimony. This website is the most valuable BECAUSE one can learn so much from fellow Freepers and from the posts of data which would otherwise be unknown to me!