DC Court Holds BATFE may not be "Arbitrary and Capricious" about Gun Mufflers

Gun Watch ^ | 26 March, 2014 | Dean Weingarten

[marktwain]

David Hardy , on his blog Of Arms and the Law, brought to my attention a recent case involving the BATFE and gun mufflers.   David's article is worthwhile, but other parts of the case deserve some comment.   In Innovator Enterprises v. United States, the D.C. district court held that the BATFE may not be "arbitrary and capricious", and holds that in the case in question they are exactly that.

This cuts to the quick of much of the BATFE modus operandi.   Not having clearly written down standards or procedures; arbitrarily changing rules after making a determination, feeling the political winds change direction, and making another decision that negates the first; not placing understandable and clear reasons for their decisions that can be argued, appealed, and overruled.

The point is that the judge held that the BATFE could not simply say, arbitrarily, that the devise in question met the BATFE requirements for a gun muffler.

That may sound completely rational and obvious.   But to those of us who have watched the BATFE machinations over the years, it is an enormous slap down of the way in which the BATFE  does business.

From the decision:

A. The agency failed to "articulate a satisfactory explanation" for its
decision.The agency decision in this case is embodied by the Classification Letter, which contains very little reasoning or analysis. The entire substance of the agency's justification for classifying Innovator's Stabilizer Brake as a "firearm silencer" is contained in the following three paragraphs:

 The BATFE's letter follows, which basically says that it looked at the devise, and concluded that it had enough characteristics of a gun muffler for them to say it is one without any physical testing whatsoever.  After the BATFE's letter, this follows from the judge:

This is not a "satisfactory explanation" for the agency decision, because the agency's methodology for deciding whether a particular device is "for diminishing the report of a portable firearm," 18 U.S.C. § 921(a)(24), is deeply flawed.

The court makes this humorous analogy to the BATFE's letter:

 Hypotheticals further illustrate the weakness of this methodology. A mouse is not an "elephant" solely because it has three characteristics that are common to known elephants: a tail, gray skin, and four legs. A child's bike is not a "motorcycle" solely because it has three characteristics common to known motorcycles: two rubber tires, handlebars, and a leather seat. And a Bud Light is not "Single-Malt Scotch," just because it is frequently served in a glass container, contains alcohol, and is available for purchase at a tavern.

The court reinforces some restraints that it is putting the BATFE under:

 The most curious paragraph in the Classification Letter is as follows, in which the agency candidly admits it could have actually tested Innovator's Stabilizer Brake to determine how it affects the "report" of a gunshot, but did not do so:

Although FTB utilizes state-of-the-art sound metering equipment to demonstrate that various items are capable of reducing the report of a portable firearm, these tests do not affect the classification of any item. Our silencer classifications are based solely upon the physical characteristics of the device under examination.

Classification Letter, AR at 15 (emphasis in original). This passage is an admission by the agency that it is capable of coming to a definitive, scientific determination—using what it describes as "state-of-the-art sound metering equipment"—of whether a device is capable of "diminishing the report" of a firearm. What is missing is a helpful explanation as to why it did not do so.

There is at least some possibility that this court will require the BATFE to follow established law, rather than its regulatory whims.   When a court case directly affects the BATFE, it tends to pay some attention to it.  This case could have indirect implications for the EPArmory 80% receiver case, because the lack of direct, understandable standards is suspected to be an important factor in that case.

To emphasize the importance of legal research into these matters, the court cites  P. Clark, Criminal Use of Firearm Silencers:

 Classifying one particular device as a "firearm silencer" is a relatively unimportant question in the grand scheme of federal firearm regulations. Indeed, it is difficult to determine what exactly Congress was concerned about in deciding to regulate silencers at the federal level.  See, e.g., P. Clark, Criminal  Use of Firearm Silencers, 8 W. CRIM. REVIEW 44, 48 (2007) ("The  1934  congressional debates [over what became the National Firearms Act] provide no explanation about why silencers were licensed."). In other words, the stakes here are low. This weighs against Chevron deference.

It must have been gratifying to see the court state the obvious: "The stakes here are low".   It makes you wonder why there are any "stakes" at all.

If you are going to regulate all gun mufflers, the obvious standard for gun mufflers is to determine if the device actually reduces the report of a gun shot, the reduction is statistically significant from a mathematical test, and that it reduces the sound more than other devices that are not gun mufflers and which are legally acceptable. 

If it does not, it is not a "gun muffler".  The judge did not directly say as much, but it is a clear step in that direction.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

[marktwain]

Gun mufflers,silencers, suppressors, whatever you wish to call them, there was never any real reason to require $200 taxes and the extensive regulation by the federal government, for essentially a safety devise.

You should be able to buy a dozen in a hardware store over the counter.

[gaijin]

Bfl

[piroque]

Gun mufflers,silencers, suppressors, whatever you wish to call them, there was never any real reason to require$200 taxes

The reason for the law is all about the money.

[ConservativeInPA]

I have to wonder why Republicans won’t pass some pro-gun legislation in the House and force this issue in the Senate by saying Democrats are uncaring about the health of law abiding Americans. I for one have reduced the amount of time that I shoot indoors to save my ears. There is no way that I am going to sign any form or pay any tax to the BATF. I don’t want my name on their lists and I certainly do not want to finance them.

[Rannug]

Another fee I do not pay

[JustTheTruth]

"Wait several months" for your application to be approved???

HA! While I have received approval in six months before, I was just told that another application I have in will take about ten months! This is so crazy...

[marktwain]

“to require$200 taxes

The reason for the law is all about the money.”

Not really.

They made almost no money on the $200 tax stamps, the tax was so high as to be prohibitive. Back in 1934 when the law was passed, $200 was the equivalent of $4,000 today.

Almost no one paid it.

It was not about the money. It was about control

To statists, power and control are far more important than money. That is why the old media is willing to go bankrupt rather than sell to a conservative.

[B4Ranch]

The reason for the law is all about the control government should maintain over the voters.

[CodeToad]

The NRA helped enact the 1934 NFA.

[OneWingedShark]

Gun mufflers,silencers, suppressors, whatever you wish to call them, there was never any real reason to require $200 taxes and the extensive regulation by the federal government, for essentially a safety devise.

The whole funny-sad thing is that when you look at the Constitution all of this is crap — the federal government cannot legitimately tax arms. Period.
Why?

Well, even though the Constitution does give some broad powers of taxation that is in the unamended Constitution — the very first amendments were the Bill of Rights, in which the preamble states:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

among which is the 2nd Amendment, which we all know states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It has been well known that taxing something infringes upon it, therefore any taxation applied to arms (and arguably their accessories) should be null and void.

Sadly I there are no people who hold this sort of viewpoint [AFAIK] on the Supreme Court or in the courts in-general.

[OneWingedShark]

The NRA helped enact the 1934 NFA.

One reason I don't trust them as loyal allies WRT the 2nd Amendment…
and the lack of any Republican push to repeal the NFA makes me believe that their pro-gun label is based on perception rather than actual reality.

[The Working Man]

I remember that my grandfather told me that some of the politicians in Congress were ‘overly influenced’ by the gangster era movies at the time that showed the near total silence of a ‘silencer’ and how the ‘hit man’ could do his ‘hit’ and get away so easily.

As he was heard to remark many times before he passed away:

‘Those damned politicians get a common sense removal operation when the become one and receive a bucket of BullSh*t to fill up the empty spot with.’

[marktwain]

He was trusting. I think they learn power politics and become corrupted.