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Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued its long-awaited opinion in Gun Owners of America v. Garland, a challenge to the Trump Administration’s “bump stock” ban. How long as this decision been awaited? Oral argument was in December 2019. Judge Batchelder wrote the opinion for the court, joined by Judge Murphy. Judge White dissented.

Judge Batchelder’s opinion invalidates the ban on the grounds that the Bureau of Alcohol, Tobacco, and Firearm’s interpretation was not eligible for Chevron deference because the law being interpreted was a criminal statute. Here is how she summarizes the ruling in her introduction:

The question before us is whether a bump stock may be properly classified as a machine gun as defined by 26 U.S.C. § 5845(b). But this case rests as much on who determines the statute’s meaning as it does on what the statute means.

On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF” or “Agency”) promulgated a rule that classified bump stocks as machine guns, reversing its previous position. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479) (“Final Rule”). Plaintiffs-Appellants—three gunrights organizations, two individuals who own bump stocks, and one individual who would purchase a bump stock if not for the Final Rule—filed a motion for a preliminary injunction to prevent the Final Rule from taking effect. After finding that the ATF’s interpretation was entitled to Chevron deference, the district court held that the Final Rule’s classification of bump stocks as machine guns was “a permissible interpretation” of § 5845(b). Accordingly, the court concluded that Plaintiffs-Appellants were unlikely to succeed on the merits and denied the preliminary injunction.

Because an agency’s interpretation of a criminal statute is not entitled to Chevron deference and because the ATF’s Final Rule is not the best interpretation of § 5845(b), we REVERSE the district court’s judgment and REMAND for proceedings consistent with this opinion.

And from the conclusion:

Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns, we hold that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference. Consequently, the district court erred by finding that the ATF’s Final Rule, which interpreted the meaning of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron deference. And because we find that “single function of the trigger” refers to the mechanical process of the trigger, we further hold that a bump stock cannot be classified as a machine gun because a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled. Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits and that that their motion for an injunction should have been granted.

One other tidbit: While concluding the district court should have granted the plaintiffs-appellants’ request for an injunction, the court’s majority expressly rules out the possibility of a nationwide objection, and declares that the scope of any injunction entered “may not exceed the bounds of the four states within the Sixth Circuit’s jurisdiction.”

As noted, this was a divided opinion. Judge White’s dissent begins:

I respectfully disagree with the majority’s conclusion that Chevron never applies to laws with criminal applications. The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O’Hagan—and has never purported to overrule those cases. Although comments in subsequent decisions may create tension with these cases, they remain binding. Thus, I would apply Chevron. And because the statutory phrase here is ambiguous and the ATF’s interpretation of that phrase is reasonable, it is entitled to deference under Chevron.

Time permitting, I will have more to say about the Chevron issues later. I expect one or more of my co-bloggers may have something to say about the opinion as well.

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There were a lot of ridiculous lines of questioning during Thursday’s congressional hearing on social media misinformation, but one that jumped out as particularly hypocritical came from Rep. Mike Doyle (D–Pa.).

After grilling Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey about their failure to eliminate misinformation on social media in general, Doyle turned to the subject of COVID-19. He asked each of the CEOs whether they believed the approved vaccines work. Each answered yes, of course.

“Then why have your companies allowed accounts that repeatedly offend your vaccine disinformation policies to remain up? ” thundered Doyle, as if he has caught them in some kind of trap. “Why in the midst of a global pandemic that has killed over half a million Americans you haven’t taken these accounts down that are responsible for vaccine disinformation?”

Zuckerberg, Pichai, and Dorsey responded that they do take down COVID-19 misinformation, though there are grey areas where something may not be provably true but is a matter of personal opinion, and the platforms are ill-suited to police all of this. This was a fine answer, but if they were feeling more combative, they could have turned the question on the congressmen: Why, in the midst of a global pandemic that has killed more than half a million Americans—and is still killing more than 1,000 people every day—is the federal government contributing to vaccine hesitancy and unavailability?

Officials at the Federal Drug Administration (FDA) have yet to approve the AstraZeneca vaccine—30 million doses of it are just sitting in a warehouse in Ohio—even though data from the company’s trials have showed that the vaccine is very effective at preventing severe disease and death from COVID-19. Not a single vaccinated person in the trial was even hospitalized. The vaccine should be distributed immediately, or at the very least sent abroad in order to confront the out-of-control pandemic in places like Brazil and Ukraine.

The government hasn’t just failed to release the vaccine to the public; it has undermined confidence in it. Officials representing the National Institutes of Health (NIH)—including White House pandemic expert Anthony Fauci and NIH chief Francis Collins—have publicly feuded with AstraZeneca over a statistically insignificant discrepancy in the vaccine’s reported efficacy.

Moreover, public health officials have repeatedly undersold the vaccines by insisting that Americans continue masking and social distancing even after they receive their shots. For younger people whose well-being is not particularly threatened by the disease, a major incentive for getting vaccinated is the opportunity to resume normal life. But officials still recommend very small gatherings, masks (even outdoors), and heavy restrictions on schools that reopen.

Government health experts have also changed their minds repeatedly about various mitigation strategies over the course of the pandemic. A year ago, Fauci recommended that people not bother purchasing masks unless they were in a health care setting. The Centers for Disease Control (CDC) has changed its mind about whether three feet or six feet is enough space for social distancing. Some of these mistakes are understandable: This was a never-before-seen disease. But it’s absolutely the case that the federal government has repeatedly misinformed the American public about a variety of topics related to COVID-19, including the unlikelihood of post-vaccine transmission.

It thus seems misguided for Congress—a body with very little authority to dictate private social media companies’ terms of service but considerable power to hold public health agencies to account—to fixate on tech companies’ role in spreading COVID-19 misinformation. Thousands of people are still dying every day because the U.S. government is letting its citizens be vaccinated fast enough, and lawmakers seem more interested in finding a way to blame this on Facebook.

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After several years of failed political wrangling, New York is on the cusp of legalizing the recreational sale and consumption of marijuana.

At a press conference Wednesday, Gov. Andrew Cuomo announced that an agreement was close and that lawmakers were reviewing the final details. The bill may be ready to be voted on as early as next week. The text of the bill is not yet public, but some of the details have been making its way out to New York media outlets.

Marijuana Moment compiled all these details together. If its summary is accurate, there have been some solid improvements over earlier versions of the legislation.

Cuomo had been circulating his own legalization proposal that would completely forbid New Yorkers from growing their own—even for medical purposes. The draft now circulating would let New Yorkers grow their own weed: six plants at a time for their own use, but only three of which could be matured. Households with more than one adult could grow a maximum of 12 plants. Municipalities would be barred from banning people from growing their own, but they could establish restrictions.

If that part of the bill stays intact, it will be improvement over New Jersey’s recent legalization. New Jersey does not permit its citizens to grow their own marijuana. They have to purchase it from licensed dealers—who then, of course, have to direct a cut to the state via taxes.

New York’s bill will reportedly let cities opt out of allowing retailers, but it will also allow citizens to overrule such bans via ballot initiatives. The law would also permit social consumption sites, cafés where you can enjoy a little weed if you’re, say, a parent frustrated at the absurd corruption of your state’s government and in need of a little relaxation but don’t want marijuana in your house with the kids.

Licensed retail shops aren’t scheduled to begin opening under the current proposal until December 2022. Marijuana products will be taxed at 9 percent, and then an additional 4 percent tax will apply. That’s actually lower than some other states that have already implemented retail sales, but there will be additional taxes on other products such as edibles and concentrates.

Police will be able to use the smell of cannabis as evidence to suspect that somebody may be impaired (as in while driving), but it will not on its own be used to justify searching a vehicle.

The proposal will also expand who qualifies as a medical marijuana user, and it will allow patients to get a 60-day supply, rather than the current 30-day supply. Existing medical marijuana shops will be allowed to open additional shops, including non-medical retail stores.

I realize this sounds like faint praise, but the bill is much better than it looked like it was going to be. There’s still a tremendous amount of meddling in the marketplace, because tons of people want their hands in the till and want to influence who gets to open up a shop.

The most important thing about the legislation will be the continued decline in marijuana arrests. Misdemeanor marijuana arrests in New York City have been declining since 2011, but have slightly increased elsewhere in the state. And yes, statistically enforcement has overwhelmingly targeted black and Latino people. Less of that will be a good thing all around.

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On one night in December 1773, patriot activists disguised as Native Americans broke into Griffin’s Wharf in Boston Harbor, boarded three vessels loaded with tea owned by the British East India Company, and dumped it all overboard.

Now immortalized as the Boston Tea Party, this famous theft is celebrated today as a heroic act of resistance against the oppressive British government.

Usually forgotten in the story is Francis Rotch, an American merchant and co-owner of two of the ships invaded that night. Rotch had unwittingly agreed to ship crates containing the controversial tea from Britain. When he arrived in Boston, patriots prevented him from unloading the cargo and British authorities stopped him from leaving with it. In a conflict between crown and colonist, Rotch was squeezed between two sides.

Pharmaceutical giant AstraZeneca is stuck in a similar position today.

The company, The New York Times reports, is currently sitting on some 30 million doses of COVID-19 vaccines in a warehouse in West Chester, Ohio, all vialed up and ready to go. Millions more unpackaged doses are being held at a Baltimore facility, the Times says.

Both clinical trials and the vaccine’s actual use in the 70 countries that have approved it tell us that this is a safe and effective way of preventing COVID-19 infections, hospitalizations, and deaths. Millions of Americans would gladly take it.

Standing in the way of this mutually beneficial exchange is the U.S. Food and Drug Administration (FDA), which is responsible for approving vaccines and has thus far refused to give AstraZeneca’s shots the green light.

Worse still, the Biden administration is forbidding the company from exporting its idle doses to countries that do allow their use, and which have worsening COVID-19 outbreaks of their own.

Much like the forgotten Rotch, AstraZeneca finds itself in possession of some very valuable cargo that can neither be offloaded nor exported.

That raises an interesting question: Would modern Americans be justified in following their revolutionary forebearers’ example and just stealing that shit?

For all its merits as an act of anti-monarchical, anti-monopoly resistance, the Boston Tea Party remains an act of theft—one that ultimately put a private party in its crosshairs. That’s something most libertarians wouldn’t support, except perhaps in the most extreme hypothetical circumstances.

Would equally energized citizens today be justified in forcing their way into that West Chester warehouse and absconding with 30 million doses of life-saving medicine? The heist itself would require a few dozen people willing to offer the AstraZeneca warehouse staff enough cash to look the other way, plus enough refrigerated trucks to carry everything away. Once boosted, there would likely be countless doctors, nurses, and pharmacists eager to help administer a vaccine we have every reason to think is safe and would be saving lives today but for a pathologically risk-averse federal government. And if Americans didn’t want to take it, our vaccine vigilantes could bring the doses out of the country—maybe to Brazil, which has approved the vaccine’s use and where 3,000 COVID-19 deaths were reported yesterday.

Jason Brennan, a professor of philosophy at Georgetown University, says there’s some merit to the idea. Violating the FDA’s prohibition on the use of the AstraZeneca vaccine should trouble no one’s conscience, Brennan says. That prohibition is imposing severe costs on Americans’ lives and livelihoods, and the agency’s refusal to approve the vaccine is motivated by perverse incentives that no one should feel the need to respect.

“If [the FDA doesn’t] approve a drug or if they don’t approve a face mask, if they don’t approve a testing kit for COVID, lots and lots of people die, but no one other than health economists blame the FDA for that,” says Brennan. “But if an FDA approved a drug and it fails or has side effects, people blame the FDA.” The desire to avoid blame encourages the FDA to adopt an overly cautious approach to approving drugs, even in the middle of a pandemic when the cost of that caution is hundreds of lives a day.

Should people manage to acquire the vaccine, they should feel free to take it, Brennan argues. And if AstraZeneca executives find a way to sell it onto a black market, he adds, they should be lauded as heroes.

Of course, AstraZeneca executives are not going to sell their vaccine into the black market, given the many legal consequences. That’s where the heist comes in.

Brennan acknowledges that this is a more difficult calculation. In emergency situations, he argues, theft or trespassing might be justified. “I don’t think property is completely sacrosanct,” Brennan says.

He gives the example of someone who comes across a privately owned cabin while being chased by a bear: You shouldn’t feel bad about breaking into the cabin to escape the animal, although you’ll probably owe compensation to the cabin’s owner after the emergency bear situation has lapsed.

Whether the COVID-19 pandemic counts as a severe enough emergency to justify stealing vaccines from a pharmaceutical company hinges on a lot of details, says Brennan. Stealing the vaccine to give it to an 80-year-old at high risk of dying from the disease is closer to our hypothetical bear victim and would thus plausibly be justified. Stealing it to give to a healthy 20-year-old who faces fewer risks would not.

The coercive force necessary to take the vaccine also needs to be considered, Brennan says. If a few AstraZeneca vaccine vials fall off the back of a truck, then their theft is easier to justify. If one has to shoot a security guard to get them, it almost certainly isn’t.

Revolutionary Bostonians had similar qualms about the destruction of private property during and after the Boston Tea Party. For that reason, they refrained from damaging the ships or molesting their crews during their act of thievery. Patriots even went so far as to replace a privately owned padlock they’d cut when breaking into the wharf.

Only the tea itself was destroyed, which Sam Adams and others later justified as a targeted protest against both unjust taxation and the monopoly privileges given to the East India Company.

One could deploy similar logic to justify the theft of AstraZeneca vaccines. The fact that they’re sitting idle in warehouses is solely the result of government restrictions. Their very existence is also the result of government action, namely a $1.2 billion contract the U.S. government has inked with the company to purchase 300 million doses of the vaccine it refuses to approve.

The anarcho-libertarian philosopher Murray Rothbard—a private property rights absolutist—has argued that forcible confiscation of property owned by state-supported universities and military contractors is justified under a libertarian framework, given that those institutions are bankrolled by stolen tax dollars.

“What of the myriad of corporations which are integral parts of the military-industrial complex, which not only get over half or sometimes virtually all their revenue from the government but also participate in mass murder? What are their credentials to ‘private’ property? Surely less than zero,” wrote Rothbard in a 1969 essay. “To say that their ‘private’ property must be respected is to say that the property stolen by the horsethief and the murderer must be ‘respected.'”

Grant Babcock, an editor at the Cato Institute’s Libertarianism.org and self-described Rothbardian, says there is some truth to that sentiment when it comes to Pentagon contractors. But he doesn’t think the reasoning applies to AstraZeneca or its vaccines.

“The market for fighter jets outside of government demand is basically nil. Whereas a lot of people might be interested in purchasing [a coronavirus vaccine] irrespective of the demand from the government,” Babcock says. “So to that extent, I don’t think we would consider AstraZeneca an arm of the government the way a lot of defense contractors could be.”

The FDA’s restrictions on AstraZeneca’s vaccine are clearly unwarranted, Babcock adds, saying people should be free to consume whatever drugs and medicine they want to. But that still wouldn’t justify theft of a restricted product.

“If there’s an unjust law, you shouldn’t feel too bad about breaking it,” he says. “But in this case, the unjust law is the law that’s prohibiting a transaction for the vaccine. It’s not the laws against theft, which are not unjust.”

Brennan argues that coercing the FDA directly into approving more vaccines would be appropriate, saying “if you could blackmail the head of the FDA to force them to” approve the vaccine “that would be a heroic thing to do. You would be deserving of praise.”

Whether or not that’s morally defensible, it seems like an impractical caper to pull off.

So the FDA’s restrictions on the vaccine remain both lethal and unjust. Yet injuring private third parties to right that wrong remains morally dubious.

Moral calculations aside, it should fill every American with Sam Adams–like revolutionary fervor to know that while some 800 Americans die each day, and countless more labor under governments’ pandemic restrictions, millions of life-saving vaccines sit untouched.

The public policy debate about the pandemic has largely been about what coercive force the government is justified in exercising to prevent infections and deaths. It’s worthwhile to at least think about how much force citizens themselves can use against a government that denies them access to life-saving cures.

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Since Monday’s mass shooting in Boulder, Colorado, gun control advocates have repeatedly noted that a state judge blocked enforcement of the city’s “assault weapon” ban 10 days before the attack. The implausible implication is that the ordinance, had it been allowed to take effect, might have prevented this crime.

“Boulder’s assault weapons ban, meant to stop mass shootings, was blocked 10 days before [the] grocery store attack,” The Washington Post noted on Tuesday. “Boulder’s Pain Is Deepened by a Lost Fight for Gun Control,” says the headline over a New York Times story published yesterday. “Less than two weeks” after Boulder County District Court Judge Andrew Hartman concluded that the local “assault weapon” ban conflicted with state law, Times reporters Mike Baker and Lucy Tompkins note, “a man armed with an assault-style weapon walked into a Boulder supermarket and opened fire, killing 10 people.”

The connection between those two events may seem superficially plausible. After all, at least one of the weapons that the gunman apparently used, a Ruger AR-556 pistol, would have been covered by Boulder’s ordinance.

Among other things, that ordinance prohibits the sale of “all semiautomatic center-fire pistols” that “have the capacity to accept a magazine other than in the pistol grip” or “have a protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand.” The AR-556 pistol, which resembles a short-barreled rifle but does not legally qualify as one, has a stabilizing brace and a magazine port that is separate from the grip.

If the local “assault weapon” ban had been in effect, the perpetrator of this week’s attack would not have been legally allowed to buy that gun in Boulder. But he lived in Arvada, a city about half an hour’s drive from Boulder. The arrest warrant affidavit says the suspect purchased the pistol on March 16. It does not say where he bought it. Still, even if Boulder’s ordinance had not been blocked, he could have bought the gun pretty much anywhere else in Colorado.

The ordinance also prohibits possession of “assault weapons” in Boulder, except for previously owned firearms registered with the city’s police department. But it defies logic to suggest that a man bent on mass murder would have worried about that rule, even assuming that he knew about it.

Even if this man was for some reason keen to follow local firearm regulations as he set out to kill a bunch of strangers, he could have accomplished the same horrifying end with a gun that did not fit the ban’s criteria. Would it really have mattered that his pistol lacked a stabilizing brace or that its magazine was attached to the grip?

“AR-style weapons, first developed for battlefield use, have for years been a growing target of gun control advocates as such firearms repeatedly are deployed during mass shootings,” the Times says. But the perpetrators of such crimes are actually more likely to use ordinary handguns or long guns that don’t qualify as “assault weapons,” which have figured in several of the deadliest mass shootings.

As usual, the Times does not delve into the question of whether the arbitrary distinctions drawn by “assault weapon” bans make any sense. But Baker and Tompkins do concede that “the gunman could have purchased his weapon in another town” even if Boulder’s ban had taken effect. “A person wishing to buy an assault rifle would only need to leave city limits to legally purchase one,” they note.

Still, Baker and Tompkins say, “there has been a particularly keen sense of dismay and frustration in a city that tried, and failed, to prevent one of the most horrific kinds of gun violence.” They illustrate those emotions with a quote from Jill Adler Grano, the former city council member who introduced Boulder’s “assault weapon” ban. “My heart is broken,” she says. “We tried so hard to prevent this from happening, yet here we are.”

Again, the implication is that the ordinance could have “prevent[ed] this from happening,” even though that is plainly not true. In their 27th paragraph, Baker and Tompkins come close to acknowledging reality. “In some ways,” they say, “local ordinances such as the one Boulder passed are statements of political conviction as much as they are effective prohibitions on guns.” But that formulation still implies that such ordinances are in some unspecified ways effective at accomplishing the avowed goals of the politicians who support them.

The Times laments “the limitations of a patchwork, city-by-city approach to gun policy.” It notes that gun rights advocates also object to that approach, “arguing that local ordinances like Boulder’s are a nightmare for gun owners who must navigate varying restrictions from city to city.” That is why Colorado, like many states, has a law that preempts such local restrictions—the same law that Judge Hartman cited when he blocked Boulder’s ban.

“I can’t tell you how angering that is,” Rachel Friend, a current city council member and local gun control activist, tells the Times. “I’m supporting and advocating for us to appeal.”

Toward what end? “Our country has gone through mass shooting after mass shooting for decades now,” Grano says. “I have a son in high school, and it just felt like, ‘We have got to do something. If the federal government is not going to take action, we’re just going to keep talking around in circles.'”

In other words: We have got to do something, whether or not it’s likely to have any impact on mass shootings or on gun violence generally. That is the logic endorsed by national politicians such as President Joe Biden and Sen. Dianne Feinstein (D–Calif.) as well as local politicians like Grano and Friend. More should be required to pass any sort of legislation, let alone laws that impinge on a right guaranteed by the Constitution.

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