By Roger J. Katz
Although President Trump could and should have left the matter of bump fire stocks to Congress, Trump’s unilateral action, banning civilian ownership and possession of bump stocks is unlawful. That isn’t an open question. The answer to that question, under constitutional law, is clear and categorical. Trump cannot lawfully do so. But, he took that action anyway.
The danger we now face, given the President’s rash action goes well beyond the relative merit or utility of bump stocks themselves.
Trump’s action calls into immediate question the import of congressional legislation and the weight to be given to U.S. Supreme Court pronouncements on matters of law. If Trump’s action withstands legal challenge and scrutiny—and David Codrea’s article posted in Ammoland Shooting Sports News points to several formal complaints that have been recently been filed contesting the constitutionality of the ban—the rule of law becomes mere hollow rhetoric, legislation becomes mere ad hoc artifice subject to the vicissitudes of fate, and the Bill of Rights loses its inviolability and immutability.
Two major websites, Ammoland Shooting Sports News and The Truth About Guns, have posted several fine articles on the issue of bump stocks. The Arbalest Quarrel provides its own take on this subject, including an analysis of the law regarding administrative decision-making.
We reach a disturbing but irrefutable conclusion: if the courts do not strike down Trump’s action, we will continue to see the inexorable whittling away of the right of the people to keep and bear arms, leading inevitably to the demise of civilian ownership and possession of all semiautomatic firearms, not simply to the demise of firearms pejoratively called“assault weapons.”
We begin our analysis with the language of Trump’s Memorandum, issued on February 20, 2018. The Memorandum is titled “Application of the Definition of Machine gun to ‘Bump Fire’ Stocks and Other Similar Devices.” 3 CFR Memorandum of 2/20/18.
This Executive Office Memorandum placed the Justice Department on notice of the President’s intent to promulgate a rule criminalizing possession of bump fire stock devices…all of them, regardless of the nature of operation of any one manufacturer’s version of the device. It further ordered the DOJ to promulgate a rule banning those devices.
The Memorandum directed to the Attorney General, and signed by Trump, reads:
“After the deadly mass murder in Las Vegas, Nevada, on October 1, 2017, I asked my Administration to fully review how the Bureau of Alcohol, Tobacco, Firearms and Explosives regulates bump fire stocks and similar devices.
Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess, I sought further clarification of the law restricting fully automatic machine guns.
Accordingly, following established legal protocols, the Department of Justice started the process of promulgating a Federal regulation interpreting the definition of ‘machine gun’ under Federal law to clarify whether certain bump stock type devices should be illegal. The Advanced Notice of Proposed Rulemaking was published in the Federal Register on December 26, 2017. Public comment concluded on January 25, 2018, with the Department of Justice receiving over 100,000 comments.
Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.
Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes. Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit. I would ask that you keep me regularly apprised of your progress.
You are authorized and directed to publish this memorandum in the Federal Register.”
[signed] Donald Trump
There are four points to ponder here. First, through this memorandum, Trump attempts to make law, not simply execute laws Congress enacted. That’s because Congress hasn’t enacted a law banning bump stocks. There is no law for the President to faithfully execute under Article 2, Clause 3 of the U.S. Constitution.
His remark, “I remain committed to the rule of law” is like comments we hear all the time from Democrats. It’s a remark he expects the public to accept on blind faith. Politicians make use of it often enough. But, the remark invariably comes across as hollow, flaccid, and pathetic; a useless appendage, demonstrating a lack of conviction at its very utterance, as the action taken belies the seeming veracity of the sentiment underlying it.
The fact remains, absent express Congressional authorization the executive branch cannot lawfully promulgate rules to effectuate the will of Congress if there is no will of Congress to effectuate. And, there is none here. Trump has blatantly exceeded his authority under the Constitution.
Second, the memorandum is logically inconsistent. Trump says, at the outset, he simply seeks “further clarification of the law restricting fully automatic machine guns,” but then makes clear that it isn’t mere clarification he seeks at all. He tells the DOJ “to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.” Trump is kidding no one. He is illegally attempting to promulgate law.
Third, the memorandum calls for a drastic measure. There is nothing in the memorandum allowing for the grandfathering of bump stocks already owned by American citizens. Consider: even the infamous federal “assault weapons” ban act of 1994 made abundantly clear that it did not apply to possession or transfer of any semi-automatic firearm a citizen lawfully possess before enactment of the congressional legislation.
The new ATF rule, though, is far more ambitious than even congressional legislation that banned new purchases of “assault weapons.” For under the ATF Rule, Americans who fail to surrender their bump stocks or who otherwise fail to render them inoperable are subject to criminal prosecution. There is no exception and no grandfathering of devices that, before implementation of the rule, had been lawfully purchased.
Fourth, Trump takes the position that he can get around the statutory legal hurdle by claiming to operate within it. But he does so by tortuously toying with the definition of ‘machine gun’ to include ‘bump stocks.’
Trump does not succeed and he is wrong in his endeavor. He is unlawfully expanding upon and redefining the clear, concise and precise definition of a ‘machine gun’ as codified by Congress in federal statute.
Further, Trump’s attempt to get around the hurdle of a clear concept of ‘machine gun’ is unnerving. It would have been better, although still legally indefensible, had he simply sought to ban bump stocks outright, without the semantic convolutions, gyrations, and machinations.
Trump attempts to convince the public that bump stocks convert semi-automatic firearms into machine guns. He simply pretends to be on a sound legal, logical, and grammatical footing. He isn’t. The reason Trump contrives to win over the public is plain. Congress has already explicitly and unambiguously defined what a machine gun is in a federal statute.
In 26 USCS § 5845, titled “definitions,” “the term ‘machine gun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.”
If ever the language of a statue were straightforward and readily understood by a firearm’s expert or a lay person, 26 USCS § 5845 is such a statute. If an agency of the executive branch of the federal government can undermine federal law so blatantly as Trump is attempting to do here, then no federal law is safe from abrogation by executive edict.
Unless, the concept of a bump stock falls within the meaning of ‘machine gun,’—and it doesn’t—the DOJ cannot lawfully promulgate a rule that extends the legal definition beyond the parameters mandated by Congressional Statute. Yet it has dared to do just that, even as it insists that it has not.
Trump has audaciously ordered the DOJ to promulgate an illegal rule, and the DOJ, through the ATF, has obliged.
We urge all Americans, who support the Second Amendment to sign the petition to overturn the ATF Rule that bans bump fire stocks.
Roger J. Katz has practiced law for the federal Government in Washington D.C., for the State Government in Arizona, and has been in private practice in Ohio, New York, and Arizona. Roger is a co-founder of Arbalest Group LLC, creator of the Arbalest Quarrel weblog, dedicated to strengthening the Second Amendment, preserving our Bill of Rights, and maintaining a free Republic.
This article was originally published at arbalestquarrel.com and is reprinted here with permission.