This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.
On The Growing Executive, The Waning Judicial, and President Trump
Last week I penned an article about President Trump’s relationship with gun rights. My friend John Boch made some counterpoints, and a lot of you might be wondering just how we got to a point where entire classes of firearms can be summarily made verboten without any new laws being passed. So I’m going to take us on a bit of a bumpy ride.
I asserted that Trump could take action on many matters affecting our rights any time he wanted. I got some push-back for this…but I’m right.
No, I didn’t skip civics, either. It can be confusing how so many new “rules” and “regulations” come to affect us gun owners without us hearing about new laws. That’s because the administrative state is the fastest growing branch of government.
Administrative agencies, like the ATF and EPA, are increasingly encouraged to write their own rules far beyond the scope that the law allows. Hence why you saw “bump stocks” banned without Congress acting, why you saw 7N6 ammunition disappear, why you saw foreign made semi-autos dry up. None of this came with the help of Congress. All of it came at the behest of the executive branch, headed up by none other than whoever was president at the time.
I want to make clear that in no way was I expressing any opinion on who you should vote for. I’m fiercely apathetic when it comes to how you vote. What I was saying is that if gun rights matter to us, we should communicate very clearly to the president that we know what power he has. Politicians benefit from public confusion over what it is they can and cannot do. Instead of furthering this, we should recognize something and agree:
Like him or not, the president could make huge differences in quality of life for gun owners without asking anyone’s permission.
He could direct ATF to reverse broken and expansive “interpretations” of the law. He could withdraw from agreements that keep guns and parts from being imported. He could reverse George Bush Sr.’s asinine “sporting purposes” interpretation. He could direct the DOJ to de-prioritize enforcement of simple possession offenses.
He could do many, many more things for us all by himself, but he hasn’t. He’s only tightened our chains. I want to know why that is, and you should too.
As for the argument that the President “knew” the Courts would overturn the ATF’s arbitrary bump stock ban, I’d just like to point out that hasn’t happened, and it’s not a surprise. The ban isn’t still in place because we didn’t try to stop it. I — and many lawyers much smarter than me — have been working tirelessly in several federal circuits pouring everything we have into challenging this insane overreach from the very first day.
We haven’t seen a court step up to knock down the ban, and we’re not surprised. Not because the ban is legal (it isn’t), but because while the executive branch has grown tremendously over the last several decades, and the judicial branch seems to have lost its hat and crawled into a hole. It started in the New Deal era when judges began citing “legislative deference” as a judicial virtue, rather than an abdication of power.
In response to the clearly unconstitutional, but publicly popular New Deal mandates (including the National Firearms Act, which many of my friends seem to bizarrely regard as permissible), judges sought to avoid “subverting the will of the people” by overturning laws that were “duly passed by the legislature.”
This was garbage then, and it’s garbage now. The Constitution says it’s the job of the legislature to make laws, and the job of the judiciary to slap those laws off the book when they don’t walk the straight and narrow line afforded by the Constitution. It doesn’t matter if it’s popular. If the government lacks express constitutional authority, it can’t do it. Plain and simple. Except the powers that be didn’t see it that way.
As the judiciary ceded power to the legislature, the legislature got sick of doing all the hard work. Thus, the legislature began establishing executive branch offices to administer and enforce the half-baked, extra-constitutional programs passed by that body. So we saw, and continue to see, an explosion of bureaus, helmed by un-elected, lobster-clawed bureaucrats who answer only to the President.
As the legislature created and funded more and more of these vague agencies, it handed off more and more of its lawmaking obligations. It would write and pass something maniacally vague, and provide that whatever dime-store lobsters it released into the agency would write their own rules and regulations “consistent with” that vague enabling statute.
When you tell a group of ill-accountable people to determine how much power they have by reference to an intentionally open-ended document, they are going to “find” as much power as they can. And then find some more.
There have been some attempts to tamp down on this, and there is the Administrative Procedures Act, but from the same seed that sprouted “legislative deference” bore “administrative deference.”
In the estimation of our judiciary, these un-elected bureaucrats were selected to do very technical things! They are experts, in the eyes of the government, not because they are or ever were correct about the law, but because they are “experts.”
So, whenever the law seemed a little bit vague, and the administrative agency “interpreted” the law to include whatever problème du jour the executive branch happened to be harping on, well, it must be OK. Because they’re the “experts,” and experts can’t have strings to pull.
This has all wound up in the continued metastasis of an impossibly large executive branch, helmed, again, by the president. The bump stock ban is the largest, most extra-textual expansion of executive authority standing, and if you believe that treatment won’t spread to other areas of law, you need a new optometrist.
If the Supreme Court doesn’t reel it back, it means the president can direct his agencies to write new law…as long as they don’t admit they’re writing new laws.
We stand now at the precipice between a president and a king. And it’s not just our current president. At minimum, Trump will have left a shiny, powerful tool in the toolbox for whoever comes next. The last thing we need to do is sweep it under the rug. While you might forget that it’s there, I’m quite confident whoever is sitting in the oval office in the future will not.
Connecticut Passes Safe Storage and Attempts to Stop the Signal
While this was a slow week for gun law news, it wasn’t a dead one. Connecticut saw a safe storage requirement (both in the home and vehicles), and banned “ghost guns.”
We’ve covered these time and time again. It’s bad, unenforceable policy. Both a “ghost gun” ban and a “safe storage” requirement could only really be enforced against people who let law enforcement into their house for something else. Have some minor dispute in your home? Gun safe not locked? Guess who’s getting booked.