Bump stocks, the mostly irrelevant “gimmick” that most people hadn’t even heard of prior to the Las Vegas mass shooting, are back in the news, thanks to a lawsuit filed by the Gun Owners of America (GOA) (hey, NRA, learn a lesson here). That suit, ably discussed over at Cato, asserts that the means by which the administration banned bump stocks is unconstitutional.
Some history. The first major federal piece of gun control legislation, the National Firearms Act (NFA), was enacted in 1934. It was passed in no small part due to the public reaction to the St. Valentine’s Day Massacre of 1929, itself a sad product of the organized crime that arose thanks to Prohibition. Seven gangsters were executed by other gangsters, some of whom posed as police officers. Two Thompson submachine guns were used in the massacre. The Thompson, aka the “Tommy Gun” of gangland fame, is ubiquitous in movies and tales of that era. It is a “submachine gun” which means it fires continuously when the trigger is depressed, and uses handgun (as opposed to rifle) ammunition (that’s the “sub” part).
The NFA imposed strict regulations on all categories of “machineguns,” i.e. any firearm that fires multiple rounds with a single trigger pull. It also regulated silencers, which I’ve discussed in other blog posts.
A bump stock is an item that can be retrofitted onto a semi-automatic rifle (these shoot one bullet per trigger pull) that uses the recoil from the firing of the rifle coupled with a finger rest to allow the trigger to be actuated more rapidly. It doesn’t replicate the rate of fire of a machine gun, but it does enable a shooter to fire more rapidly. The Las Vegas shooter used bump stocks, and it indeed allowed him to fire more rounds per unit time. But, the fact is that it took well over an hour for the police to locate and breach the room where the shooter was, and the span of time that the shooter was actually shooting was only ten minutes, so that increased rate of fire may have been irrelevant. There’s also dispute as to whether the bump stock increased or decreased the lethality of his barrage, given that it greatly reduces accuracy.
Neither of these questions, nor the fact that bump stocks had never been used before in such a way, nor the fact that, as mere hunks of plastic, they can be made by anyone with a 3D printer, stopped politicians from demanding they be banned.
Congress chose not to do so. But Trump, he of no ideological tether, decided that they should be banned, so he had the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) ban them.
Here’s the problem. BATFE can’t simply do whatever it wants to. Government agencies are regulated and constricted by a – the Constitution, and b – legislation passed by Congress. BATFE is authorized by the NFA to regulate “machineguns,” so in order to ban bump stocks, it had to change the legislated definition of “machineguns” to include bump stocks.
Therein lies the essence of the GOA lawsuit: that the BATFE cannot modify legislation, that such power rests solely within Congress. And therein lies the crux of Cato’s amicus brief in the lawsuit (currently before the Sixth Circuit Court of Appeals): that the executive branch cannot write law.
Congress has, in recent years/decades, abandoned a tremendous amount of its authority and responsibility in legislating, by passing that authority and responsibility to administrative agencies and bureaucracies. This serves Congressmen quite well, because it gives them less hard work to do and frees them up to campaign and fundraise in support of their true #1 job: getting re-elected. It also serves that #1 job by keeping them from having to go on the record on difficult or divisive issues. In the case of bump stocks, many, I’m sure, breathed a giant sigh of relief that they didn’t have to actually vote on a ban. While public outrage over a mass shooting is always high, given that it’s stoked by the largely anti-gun press and by anti-gun activists, it’s a historical fact that voting for gun control puts all but those in deep-blue districts at electoral peril. The 1994 Assault Weapons Ban is considered one of the main factors in the Democrats’ wipeout and the rise of the Gingrich Congress that year. So, not being forced to vote on a bump stock ban was a boon for many politicians.
There are countless other examples of Congressional abdication of responsibility to the “fourth branch of government” out there. Giant, omnibus bills are passed, along with broad-brush authorization language that grants near-carte-blanche to bureaucrats. Occasionally, but not often enough, the Court smacks down a law as “unconstitutionally vague.” Additionally, there are times, (as in the just released decision on gerrymandering), where Congress has attempted to let the judicial branch legislate, and the Court tells Congress “that’s your job, we’re not going to do it for you.”
Meanwhile, countless Senators and Representatives decry the power of the Presidency and the things that Presidents do that they don’t agree with. A lot of that is political showboating, because that inordinate power is largely their fault. Congress has chosen to be dysfunctional. It hasn’t actually passed a budget since 1997, choosing instead to fund government via continuing resolutions and omnibus spending authorizations. It chatters angrily from the sidelines as President after President bends the War Powers Act into a pretzel to unilaterally wage militarist actions, but does nothing to reclaim its Constitutionally-given power to declare war. It has defanged itself on trade by removing its power to debate and filibuster trade pacts negotiated by Presidents. And, as this bump stock lawsuit asserts, it has granted way too much rule-writing power to the executive branch (which oversees all the bureaucracies that actually run the government).
They are called lawmakers for a reason, but it’s clear they don’t really want to make real laws. They want to make grand gestures, and leave the law-writing to someone else. That way, when a voter sees a rule he doesn’t like, or observes negative consequence, he can be pointed toward the bureaucracy instead of toward the lawmaker.
Problem is, the bureaucracy isn’t elected. It’s not as directly accountable to voters as the lawmakers are. Even the President is not nearly as accountable as one’s Senator or Congressman is – 30 or more states are so reliably “blue” or “red” that the voters in those states have no real say in who becomes President. And, Congress is supposed to be a co-equal branch of government, alongside the Executive branch and the Judicial branch. Instead, it has ceded much of its job to the Executive branch, and given the Presidency the power it continues to decry.
Politics should be as local as possible, and decision makers should have as much proximity to voters as possible. That which should be done at the local level should not be done at the state level. That which should be done at the state level should not be done at the federal level. And, that which should be done by the people we elect should not be handed off to bureaucratic lifers, whose jobs are secure and who are almost wholly disconnected from voters.
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