Mar 1, 2019
Speaker of the House Nancy Pelosi recently warned Republicans that if a GOP president can declare a national emergency over a wall on the southern border, the next Democrat president could declare one over gun violence. Her threat envisioned future gun control actions without Congress. But that’s already happening—and it has made a shambles of constitutional lawmaking.
The Department of Justice (DOJ) issued the Bump Stock Type Devices Final Rule late last year. This criminal regulation retroactively bans ownership of bump stocks, an accessory that helps shooters fire semi-automatic weapons more quickly by bumping the trigger with their finger when the gun recoils.
When the 90-day compliance window closes on March 26, lawful purchasers of some 520,000 bump stocks must have either surrendered their devices or destroyed them. Absent judicial relief, this regulation will convert all remaining owners of bump stocks into felons without action by Congress.
But the various lawsuits pending against the rule are not about guns or gun rights. Rather, these suits ask whether DOJ may create new criminal laws without involving Congress. The Constitution’s answer is a firm no. New criminal laws must clear the twin constitutional hurdles of “bicameralism” (passage by both houses of Congress) and “presentment” (Presidential signature or veto override).
Even a staunch gun control advocate like Senator Dianne Feinstein has recognized that Congress must be the one to act here: “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action. Legislation is necessary to ensure a ban is implemented and regulations are not tied up in court.” Likewise, the Obama Administration faced tremendous pressure from allies to ban bump stocks via regulation but decided that it could not lawfully do so unilaterally. A pen and a phone would not suffice for this.
Nevertheless, current policymakers have defined two allegedly ambiguous terms in the 1934 National Firearms Act in order to ban bump stocks. Despite 80+ years of clarity and dozens of federal cases deeming the statute unambiguous, DOJ is trying to create a loophole in the definition of “machinegun” to fit bump stocks into it. Usually it’s criminal defendants who try such stunts to exempt their machineguns from the ban. This time it’s DOJ claiming ambiguity—and eroding respect for the rule of law.
Worse yet, in this week’s case out of the federal district court in D.C., the judge invoked the Chevron doctrine in deferring to DOJ’s definition of the terms “single function of the trigger” and “automatically.” DOJ’s new definitions are awkward at best, but Chevron poses the more nettlesome problem. This embarrassing precedent tells federal judges to defer to the executive branch’s statutory interpretation whenever the judge decides that a statute is ambiguous and the agency’s interpretation is reasonable. There is not room here for a complete takedown of Chevron, so suffice it to say that the D.C. plaintiffs did not enjoy due process of law when their judge deferred to the other party in the case rather than providing her independent judgment.