Bump-Stock Prohibition Sets Dangerous Precedent

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By Bob Barr, President & CEO of the Law Enforcement Education Foundation

Image: Slide Fire Solutions SSAK-47-XRS-RH Bump Fire Stock mounted on a GP WASR-10/36 AK-47.
CC BY-SA 3.0

In one of the more blatant examples of a federal agency abusing its power and usurping the power of Congress to legislate, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), reportedly is ready to declare that “bump stocks” are “machine guns” and therefore unlawful to be possessed, except under strict licensing.

Gun control activists certainly will cheer this action once it is finalized (which reportedly will be later this month), and the average citizen, if asked, likely would agree that bump stocks should be illegal following the well-publicized use of such a device by mass murder Stephen Paddock in Las Vegas in October 2017.

The manner by which the administration is going about making the devices unlawful, however, should be of great concern to all Americans who care not only about sound federal firearms policies but, even more important, the rule of law.

Normally, and according to Article I of our Constitution, if the government deems certain activity — such as possessing a machine gun — to be of sufficient danger and therefore should be illegal, the Congress (not an Executive Branch agency) passes legislation to that effect. If signed by the president, that activity becomes unlawful. This is what occurred in the immediate aftermath of Prohibition when the National Firearms Act of 1934 went into effect.

That Act defined what a “machine gun” is (essentially a firearm capable of firing more than one round with a single pull of the trigger) and declared that only licensed persons strictly regulated would be permitted to possess such a firearm.

The Gun Control Act of 1968 added further restrictions in this area. Thus, it has been well-understood for more than 80 years what a machine gun is and that their possession by citizens-at-large is unlawful.

In the aftermath of the horrific Las Vegas shooting, several members of Congress introduced legislation that would prohibit possession of bump stocks, which are plastic composite devices that fit over a rifle’s stock and trigger guard to enable faster trigger pull, mimicking an automatic rifle but with far less accuracy.

These efforts have faltered, largely due to the overly broad definitions in the legislation.

Into the breech stepped ATF; exercising the Bureau’s power to regulate (not “legislate”) firearms.  The manner by which ATF has taken this ball and run with it is devilishly clever; not only accomplishing the goal of outlawing bump stocks but setting a precedent that almost certainly will be used by the Bureau and others in the future to expand their reach and power.

ATF (and the Department of Justice, in which ATF is a component) decided to accomplish the goal of outlawing bump stocks not by defining them as a new device to be restricted (which would be subject to challenge as usurping Congress’ power), but by simply “clarifying” the definition of a “machine gun” in existing law to include a “bump stock.”

Thus, by regulatory sleight-of-hand, a bump stock becomes not an accessory to a machine gun but an actual “machine gun.”

Think about it: A piece of composite plastic, with no moving parts and incapable by itself of firing any projectile, is now, pursuant to ATF’s machinations, a machine gun; and notwithstanding that just a few years ago, that same ATF expressly had deemed such devices lawful.

It gets worse. The regulations, which were proposed last March by then-Attorney General Sessions, direct that anyone who possesses a bump stock after the regulation goes into effect, must destroy it or turn it into ATF; failure to do so will subject the person to a federal felony conviction.

So, a device that was lawful when acquired is made unlawful not by law but by regulatory “clarification” (George Orwell would approve of such newspeak).

The list of constitutional infirmities with ATF’s approach is lengthy; and includes taking of property without due process of law, making a lawful act unlawful after the fact (an ex-post facto law), and failure to provide fundamental due process of law.

It is one thing for the citizens of this country to decide, through their representatives in the Congress, that bump stocks should be illegal. It is quite another for unelected bureaucrats to do so, especially in a manner that makes a mockery of lawful, constitutional process and then sets a precedent for further such constitutional mischief down the road.

This is a road down which neither the Congress nor this president should allow ATF — or any federal agency to travel.

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003 and currently serves as President and CEO of the Law Enforcement Education Foundation. Reproduced with permission.