Gun Regulation After <em>Loper Bright</em>: The Statutory Interpretation/Policymaking Continuum

The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, rejecting “Chevron deference” to administrative agency interpretations of their organic statutes, has caused great uncertainty about the fate of federal regulation. This Essay considers that question in the context of federal gun regulation. Using examples of regulatory actions taken by the Bureau of Alcohol, Tobacco, and Firearms, it illustrates the wide range of functions reflected in agency actions—in particular, how those actions can span the spectrum from pure statutory interpretation to pure policymaking, with hybrid way stations between those two extremes. The variety of functions agencies perform suggests that Loper Bright’s ultimate impact may turn, at least in part, on the structure of the statutes authorizing that regulation.

In particular, its impact may turn on the degree to which those statutory structures allow the agency plausibly to claim that its regulatory action resembles policymaking more than statutory interpretation, and thus merits deference even after Chevron’s demise.