The Federal Government's "Police Power" and the Takings Clause: Part IV

Eight 5th Circuit judges already found that 18 U.S.C. 922(o) would be unconstitutional with respect to the local possession of bump stocks

|The Volokh Conspiracy |

Part I in this series explained that Congress does not have a general police power. Part II added that Congress can seize property pursuant to its Commerce and Necessary and Proper Clause Powers. Part III turned to 18 U.S.C. 922(o), the statute that purportedly authorized the bump stock ban.

This fourth part will analyze whether this statute is constitutional under LopezMorrison, and Raich.

18 U.S.C. 922(o) provides:

(o)

(1)Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2)This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

18 U.S.C. 922(o) lacks a jurisdictional hook. In contrast, other provisions of 18 U.S.C. 922 expressly reference interstate commerce.

  • 922(g) provides, "It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons . . . ."
  • 922(f) provides, "It shall be unlawful for any common or contract carrier to transport or deliver in interstate or foreign commerce any firearm or ammunition. . . ."
  • 922(n) provides, "It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
  • And the revised Gun-Free School Zones Act, codified at 922(q), found that "firearms and ammunition move easily in interstate commerce," and the "raw materials [to make a firearm] have considerably moved in interstate commerce."

But 922(o) lacks any reference, whatsoever, to interstate commerce.

Lopez identified "three broad categories of activity that Congress may regulate under its commerce power." You can remember them with the helpful acronym CIA.

Randy and I offer this explanation An Introduction to Constitutional Law:

  1. "Congress may regulate the use of the channels of interstate commerce." In Darby and Heart of Atlanta, for example, the Court upheld Congress's authority to keep "the channels of interstate commerce free from immoral and injurious uses." In such cases, Congress can regulate local activities that block the flow of interstate commerce.
  2. "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." For example, Congress could protect ports and railroads from foreign terrorist attack, even though these hubs are entirely intrastate.
  3. Congress had the "authority to regulate those . . . [intrastate] activities that substantially affect interstate commerce." Darby and Wickard established the substantial effects test. Those decisions found that Congress could regulate such intrastate activity as a necessary and proper means of regulating interstate commerce.

Many law students (and regrettably law professors) assume the substantial effects test is an element of the Supreme Court's Commerce Clause jurisprudence. Not so. The substantial effects test is premised on Congress's authority under the Necessary and Proper Clause. This test was introduced in Jones & Laughlin Steel (1937), clarified in Darby (1941), expanded in Wickard (1942), and cabined in Lopez (1995).

Which of the three Lopez tests does 922(o) fall under? In the wake of Lopez, the circuits split. United States v. Kenney (1996), which was decided by 7th Circuit one year after Lopez, offers a helpful summary of three precedents.

United States v. Wilks (10th Cir. 1995) relied on the second category from Lopez:

The circuit courts have provided several post-Lopez rationales for  § 922(o)'s constitutionality. In United States v. Wilks (10th Cir.1995), the Tenth Circuit held  § 922(o) constitutional under the second category of commerce regulation, that of " 'things in commerce'-i.e., machineguns," reasoning that "[t]he interstate flow of machineguns 'not only has a substantial effect on interstate commerce; it is interstate commerce.' "  The court found that the legislative history of federal firearms regulation as a whole supported its view that  § 922(o) regulates "an item bound up with interstate attributes and thus differs in substantial respect from legislation concerning possession of a firearm within a purely local school zone." Id.

United States v. Kirk (5th Cir. 1995) (en banc granted), relied on either the first or second category.

In United States v. Kirk (5th Cir.1995), rehearing en banc granted, (5th Cir.1996), a two-judge majority of a Fifth Circuit panel concluded that  § 922(o) falls into either the first or second category. To rebut the appellant's claim that the statute regulates not commerce but "mere possession," the court placed particular importance on  § 922(o)'s grandfather clause,  § 922(o)(2)(B), reasoning that in light of the provision "there could be no unlawful possession under section 922(o)without an unlawful transfer." Id. Therefore:
In this context, the limited ban on possession of machineguns must be seen as a necessary and proper measure meant to allow law enforcement to detect illegal transfers where the banned commodity has come to rest: in the receiver's possession. In effect, the ban on such possession is an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the demand-side of the market, i.e., those who would facilitate illegal transfer out of the desire to acquire mere possession.
The Kirk majority acknowledged that "some of the activity made unlawful is purely intrastate," but found that, as with the federal regulation of controlled substances, there was "a rational basis to conclude that federal regulation of intrastate incidents of transfer and possession is essential to effective control *889 of the interstate incidents of such traffic." Id. at 797.

(I will discuss the en banc proceeding in Kirk later).

United States v. Rambo (9th Cir. 1995) relied on the first category. (A very apt name for a machine gun prosecution).

Finally, in  United States v. Rambo (9th Cir.1996), the Ninth Circuit also upheld the constitutionality of  § 922(o), finding that it fits into the first category of regulation, that of Congress's power to regulate the use or misuse of the channels of commerce. The court was particularly persuaded by the Kirk majority's "market theory" analysis that the structure of  § 922(o) meant that every unlawful possession would necessarily be preceded by an unlawful transfer.

In Kenney, the Seventh Circuit disagreed with these precedents. It held that 922(o) could not be supported by Lopez's first category:

Although we too hold  § 922(o) constitutional, we find that the statute is best analyzed in the third category. As an initial matter,  § 922(o) does not appear to be properly categorized as a regulation of the channels of interstate commerce in the narrow sense of the first category set forth in Lopez and Perez. The examples used in these decisions indicate that this category is limited to direct regulation of the channels of commerce, for each of the statutes and cases cited, like  § 922(g)(1), contains a jurisdictional nexus element. . . . The first category thus does little more than justify  § 922(o) insofar as it regulates interstate transfers and possessions. As the Kirk dissent noted, the Kirk majority's analysis that every illegal possession would necessarily be preceded by an illegal transfer is not entirely true: an automatic weapon may be created by modifying a semiautomatic weapon with raw materials. . . .

Kenney also held Lopez's second category was inapt:

For similar reasons,  § 922(o) appears to be an ill fit in the second Lopez/Perez category, that of things in or instrumentalities of interstate commerce, because the regulation is much broader than the category. . . . The Wilks court's observation that "[t]he interstate flow of machineguns 'not only has a substantial effect on interstate commerce; it is interstate commerce,' " is correct as far as it goes, but it does not address the different question of the propriety of  § 922(o)' s regulation of intrastate possession and transfer.

I agree that 922(o) cannot fit into the first or second category.

Kenney held that 922(o) was valid under Lopez's third category. Kenney held that Congress could regulate the possession of machine guns as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." The court added, "Kenney's possession of a machine gun is much like the possession of wheat in Wickard v. Filburn . . . cited with approval in Lopez."

Not quite. Lopez did not favorably cite Wickard because the federal government regulated Filburn's "possession of wheat." Rather, Wickard was growing wheat, which was an "economic activity." Here is the full passage from which Kenney quotes. Chief Justice Rehnquist explained:

Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of wheat. . . .

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms.  Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Under Category #3, the substantial effects test, the activity must be "economic" in nature. Simple possession of a weapon is not "economic activity." Lopez stated this point explicitly.

United States v. Morrison (2000) would further clarify this doctrine. Chief Justice Rehnquist held that VAWA was unconstitutional, in part, because, "Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." For this reason, Congress stepped beyond the line that the Court had drawn in Lopez.

Gonzales v. Raich (2005) maintained this line, in theory at least, but used an expansive definition of "economic activity." Justice Stevens held that the local cultivation of marijuana was economic activity. Randy and I explain in An Introduction to Constitutional Law:

[Justice Stevens] found that Lopez and Morrison authorized Congress to regulate the local cultivation of marijuana. To support this broad conception of economic activity, Justice Stevenes relied on Webster's Third New International Dictionary. It defined "economic" as "the production, distribution, and consumption of commodities." Because Angel's caregivers and Diane were engaged in the activity of producing marijuana, according to Webster's, they were engaged in "economic" activity. Therefore, under Morrison and Lopez, Congress could regulate their intrastate activity. As a result, the CSA was constitutional as applied to the locally cultivated marijuana.

Justice Stevens also offered an alternative holding:

"Congress has the power to regulate purely local activities" when doing so is necessary to implement a comprehensive national regulatory program. Unlike the Gun- Free School Zones Act, the Controlled Substances Act was such a comprehensive program.

Once again, Stevens's analysis turned almost entirely on the fact that Raich and Monson were cultivating a product for home consumption:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed "to *19 control the volume [of wheat] moving in interstate and foreign commerce in order **2207 to avoid surpluses …" and consequently control the market price, id., at 115, 63 S.Ct. 82, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. 20–21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions. . . . .

While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

The relevant sections of the Controlled Substances Act made numerous references to interstate commerce. (See footnotes 20-21 of Raich). Section 922(o), the sole statute to prohibit machine guns, does not.

In short, the simple possession of a bump stock is not an "economic activity." And unlike machine guns, the transfer of those devices was entirely lawful, without any federal license, prior to 2019. Nor has Congress even hinted that "leaving home-[produced bump stocks] outside federal control would similarly affect price and market conditions." 18 U.S.C. 922(o) makes no reference to interstate commerce, at all. I don't think this statute falls within the first or second category of Lopez. And it is not consistent with the substantial effects test.

Eight judges of the Fifth Circuit agreed with this analysis. In 1997, the Fifth Circuit affirmed the District Court's decision in Kirk by "an equally divided en banc court."Judge Edith Jones, joined by seven other judges, wrote a lengthy dissent. Here is the introduction:

The specific issue is whether Congress breached its Commerce Clause authority in enacting  18 U.S.C. § 922(o), which was the basis for appellant Kirk's conviction for the wholly intrastate possession of a machinegun. Half of the judges participating in this en banc1 rehearing conclude that Lopez has more than mere symbolic significance. Carefully applied, it compels the conclusion that the  § 922(o) ban on mere intrastate possession of a machinegun exceeds Congress' authority "[t]o regulate Commerce … among the several States." U.S. Const., Art. 1, § 8, cl.3. The other half of the participating judges disagree with this conclusion, although their reasoning differs. Kirk's conviction must be affirmed by an equally divided court, but the importance and recurring nature of these issues lead us to publish this opinion. . . . .

On its face,  § 922(o) seems a clone of  § 922(q), the provisions struck down in Lopez. The statute bans for present purposes "mere possession" of machineguns manufactured or imported after 1986; it is supported neither by a jurisdictional nexus requirement nor by salvaging legislative findings; it is a criminal, not an economic regulatory provision; and it clearly overlaps state and local law enforcement authority. Other circuit courts and other judges in this court, however, have not seen it that way,11 although their reasons for upholding the statute differ significantly. Most of these cases err by assuming that every intrastate possession of machineguns involves interstate commerce. That error leads to misapplication of the first and second categories of Commerce Clause cases described by Lopez, and to an untenable distinction between  § 922(o) and  § 922(q) when the third Lopez category is considered. The errors in other cases are best exposed by our analysis,12 which will discuss  § 922(o) under each category of Lopez,and which takes Lopez seriously as establishing at least an outer boundary on Congress's criminal jurisdiction under the Commerce Clause.

I agree with Judge Jones. Her analysis is consistent with Lopez, as well as Morrison and Raich which had not yet been decided. Here is her prescient analysis:

Among the three elements of Lopez 's substantial effects test, the first and most critical is that of characterization: whether  § 922(o) fulfills the mission of regulating interstate commerce as (1) a regulation of economic activity which, although itself local, has substantial effect on interstate commerce, or (2) a regulation of activity which is essential to maintaining a larger, interstate regime of economic regulation. Neither Kenney nor the government in supporting  § 922(o) has characterized it as a regulation of economic activity. It is not. It is "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez.

Judge Jones rejects the "essential part" analysis:

Defenders of  § 922(o) argue instead that the possession ban is an essential part of the regulation of "commercial activity," either to insure federal control of the market for machineguns or to enforce a freeze on the number of available machineguns. See, e.g. Beuckelaere, 91 F.3d at 785; Kenney, 91 F.3d at 890. No doubt Congress has undertaken fully to regulate the business of firearms dealing, insofar as sales and transfers in or affecting commerce are concerned.21 But as we have repeatedly noted, mere intrastate possession of a machinegun does not necessarily involve a transfer or an economic transaction of any kind.22

Judge Jones also draws the appropriate distinction with Wickard:

Moreover, the analogy to Wickard is flawed. In Wickard, the government's agricultural program aimed to control and support prices in the wheat market. Filburn's consumption of home-grown wheat substituted for the controlled wheat, impairing to that extent the price support effort.  Section 922(o), by contrast, intends to extirpate any domestic commercial market for machineguns manufactured or imported after 1986. Even if this goal constitutes a legitimate regulation of interstate commerce, it does not follow that criminalizing purely private, intrastate possession is necessary to eliminate the market.  Section 922(o)also prohibits transfers of machineguns and, to the extent it represents a permissible exercise of Commerce *1015 Clause power,23 that prohibition aims directly and completely at commercial activity in machineguns. Private possession of a machinegun does not involve a market activity, and there is no legitimate market in which a substitution effect would occur.

Congress could potentially save 922(o) by making the requisite findings. Judge Jones explains:

If Congress had made findings explaining the connection of mere intrastate possession of machineguns to interstate commerce, or if there were an expressly required nexus between such possession and commerce,25  § 922(o) might be vindicated under the second *1016 Lopez prong. These features are lacking. Whatever the effect a single intrastate possession of a machinegun has on economic activity in firearms, the text and legislative history of  § 922(o) do not support any conclusion that Congress considered such effects or viewed  § 922(o) as part of a comprehensive approach to federal regulation of commerce in machineguns.

However, the ATF cannot save the bump stock regulation. The rulemaking provides no additional findings that could connect the bump stock ban with interstate commerce or economic activity. Indeed, I don't think the agency could. Such findings must come from Congress, not the executive branch. Of course, Congress could have banned bump stocks. But President Trump preferred executive action. (I discuss this history in my amicus brief for the Cato Institute.)

Going forward, it is unlikely that any court would revisit the ban of 922(o) as applied to machine guns, writ large. There have been countless prosecutions under this statute. But the challenge to the novel bump stock ban is ripe. 922(o) very well may be unconstitutional, as applied to bump stocks.

(Thanks to Caleb Kruckenberg of the New Civil Liberties Alliance for his help with this post.)

NEXT: Today in Supreme Court History: April 9, 1923

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  1. This is all insane, eccentrics and epicycles and tortured readoning. Hopefully this will someday fall apart, just like the Ptolemaic model of the universe did.

    1. The only thing falling apart at this point are the last pretenses of actually caring about the Constitution.

  2. Does it have any relevance that all this § 922(o) litigation preceded Heller, while the Court was still failing to analyze regulation of firearms as regulation of a civil liberty?

    If you go back to Miller, the key issue the Court considered relevant was whether the firearm in question was suitable for military uses, and ruled as they did because they were not put on notice that it did. (Because Miller was dead and unrepresented, of course.)

    § 922(o), of course, directly bans civilian ownership of the precise firearms the federal government itself has deemed suitable for military uses by purchasing them itself for those uses. It would appear to run directly contrary to the precedent of Miller.

    Mind, the lower courts have subsequently stood Miller on its head, while the Court abandoned the whole field of reviewing firearms laws for conflict with the 2nd amendment. But, would the modern Court, which is again enforcing the 2nd amendment, directly overturn Miller?

    I reluctantly conclude that they probably would, though dishonestly, not admitting they were doing so. Although they’d only take the case in the first place if a lower court struck it down, and how likely is that?

    1. I hadn’t read that Miller was dead when it was decided. Where did you read that?

      I don’t think Miller will be overturned, it doesn’t have to be. Lower courts gave an over-broad reading of Miller as saying the 2nd Amendment protected only a collective right to have guns to participate in a militia, while Scalia in Heller went out of his way not to overturn it, by saying that the sawed-off shotgun in question was just not a militia arm, while a handgun like the one in question in Heller *is* a militia arm.

      1. Multiple sources but here’s one: The strange case of United States v. Miller

        The case was heard in March, while Miller was still on the lam, (From his own gang, not the government: He’d testified against them in court.) decided in May. Miller was found dead in April.

        It was a setup: The lower court judge ruled it unconstitutional to set up a test case for the Supreme court that was guaranteed to only have the government’s side argued.

        My personal opinion is that was actually a break for gun owners, because the case was heard after “the switch in time that saved Nine”, and a victory by the government was basically certain. That it was a trial in abstentia allowed the Court to rule in the government’s favor on the narrowest grounds possible: That nobody had told them the gun was suitable for militia purposes.

        If the other side had been represented, and competently, the Court would have set much more damaging precedents in the process of giving the government it’s pre-determined win.

        Scalia’s interpretation of Miller was about as much of a hash as that of the lower courts; Miller said the gun wasn’t protected because it wasn’t known to be suited for militia purposes, Scalia transformed that test into civilian purposes, allowing him to interpret Miller as not protecting the arms it specifically DID protect: Military arms!

      2. Miller was a fugitive during the Supreme Court litigation, and did not present an argument when the case was heard in March 1939. He was killed (in an apparent gunfight) in April 1939, and the decision came down in May.

    2. It’s relevant inasmuch as it offer an independent reason why the statute might be unconstitutional. I don’t think it has much bearing on whether it’s a valid exercise of the interstate commerce power though.

      1. Well, trivially, an unconstitutional statute can’t be a valid exercise of the interstate commerce power.

  3. Spoiler: The gun nuts win, and right-wing dissents are the new black.

    1. Sooooo, is this where you admit at least one portion of your vaunted lefty culture war victory of doom has not been inevitable?

      As for your reply, break a leg, as they say.

  4. I’ve many times read that Lopez was all hat but no cattle, as it were, from the perspective of jurisprudence. Specifically, the Court was overturned by Congress reenacting the GFSZA by saying that the gun has to move through interstate commerce as their hook, rather than about schooling itself being the interstate commerce hook, showed the relative powerlessness of the Court in Hamiltonian terms.

    Didn’t at Roberts confirmation testimony, they asked him about the significance of Lopez, and he said, and a paraphrase, that “it remains to be seen.”

    But I appreciate Blackman taking it seriously here, and maybe it will end up being the watershed that it was purported to be if its the case that the 5-4 and soon to be 6-3 conservative Court uses to roll back the New Deal and regulatory state.

    1. Lopez was more of a “magic words” ruling: Congress hadn’t bothered reciting the magic words, “interstate commerce”.

      1. Yes and no. They just didn’t say it the right way.

        Conceptually, saying that some dude bringing a gun near a school was under Congress’ power to regulate because of how important schooling is interstate commerce (a stretch to say the least) is not the same as saying that if the gun crosses state lines, like the Mann Act, then Congress can regulate it’s possession near a school.

        The end result is the same stupidity, it’s just how we get there. Mann Act type of things are not going anywhere, but if you can regulate Lopez through the hook of education, then hell, Congress can regulate everything.

        1. The Gun Free School Zone Act was saved by saying the gun moved in or affected interstate commerce, not by saying education affected interstate commerce.

          Moreover in the bump stock case, since the interstate movement of bump stocks is banned by the statute, all that is needed to save the statute are Congressional findings that support the rational basis that not banning possession of bump stocks undercuts the ban on interstate movement of bump stocks (similar to the reasoning in Raich).

          1. It’s all part of the gradual march from a government of enumerated powers, to the leviathan.

            First: We can’t ban, but we can tax really high!
            Next: We can refuse to accept the tax!
            Then: Refusing to accept the tax is functionally the same as banning, so why not just say we can ban?
            Finally: Where did you get the crazy idea we can’t ban things?

            1. You aren’t wrong about the march, but you are wrong about the source of the march.

              The source of the march is the fact that our economy and society has become a lot more interconnected than it was in 1787.

              Consider a statute that I think you and I would agree is constitutional. Let’s say the First Congress 230 years ago had enacted the following statute:

              “Any person inducing another to enter into an interstate commercial transaction by means of a fraudulent representation is guilty of a misdemeanor and subject to a term of imprisonment of up to six months.”

              No problem with that statute under the Commerce Clause, right? Direct regulation of fraud in interstate transactions.

              But in the 18th Century, that statute would have reached only a small percentage of business transactions. Most transactions were local, involving the purchase or rental of locally sourced goods and services. There were few multistate or multinational business entities, and they comprised only a tiny portion of the nation’s economy.

              That same statute, without amendment, would now reach a huge, huge number of business transactions. Basically everything on the Internet, and, depending on how construed, possibly a huge number of brick and mortar transactions as well.

              And that’s true even if no court had ever expanded the commerce clause.

              Now, it is also true that the commerce clause has expanded. But really most of that expansion occurred because in an increasingly interconnected world, the old rules didn’t make any sense. For instance, Hammer v. Dagenhart simply doesn’t work. You can’t draw bright lines between “manufacturing” and “commerce” in a society where so many goods and people doing business cross state lines.

              Now, does that mean anything goes? It doesn’t have to. Lopez and Morrison tell us that, and, really, you can make good arguments that Raich and Wickard are wrongly decided. But the reality is so much of the nation’s economic activity occurs interstate and internationally, so there’s no conceivable world in which the Commerce power isn’t an enormous power that small government libertarians are going to hate. Trying to actually prevent that result would be a massive act of judicial activism.

              1. I don’t really care about “judicial activism”. Judges are supposed to be actively doing their jobs. “Judicial activism” is a complaint invented by politicians who didn’t want them to be doing their jobs, and so warped every complaint about judges doing the wrong thing into a complaint about them doing something.

                I care about judges deciding that “the world is more interconnected” means they can STOP doing their job. I care about judges deciding that “this doesn’t make sense anymore” is as good as a formal amendment removing explicit limits on the federal government’s powers.

                I care about the fundamental corruption of a judiciary that can read a Constitution that imposes those limits, and rule as though it didn’t. Of a legislature that can swear to live by that Constitution, and then run roughshod over it.

                A small government constitution interpreted as a big government constitution is NOT, functionally, the same as a genuine big government constitution. It’s functionally very different, and much worse.

                For one thing, a constitution with different limits on federal power still has limits. A constitution with lesser limits that are simply being ignored lacks limits altogether. Busting through that wall isn’t the same as moving it.

                For another thing, you can staff a small government running under a small government constitution with honest people. You can staff a big government running under a big government constitution with honest people. But, a big government running under a small government constitution?

                THAT you have to staff with people willing to swear an oath to uphold a small government constitution, and instead deliver big government. You have to staff it with people who can rationalize violating their oaths of office.

                You have to staff it with people who are, fundamentally, corrupt.

                1. Brett:

                  Their job is to use reason and judgment to determine the meaning of broad, vague legal provisions, consistent with a longstanding iterative tradition of precedent that can guide lower courts and lawyers.

                  You want them to do a different job, of serving a libertarian policy agenda that the vast majority of Americans would be appalled by.

                  They are fricking doing their jobs. You need to go to school and learn what their actual jobs are.

                  1. You cite changing circumstances, claim the limited government Constitution doesn’t fit them anymore. Well, that’s plausible, but it doesn’t refute one thing I say above.

                    We fundamentally disagree about what their job is. You seem to think the judiciary are a permanent constitutional convention empowered to alter the most fundamental laws of the land whenever they think they don’t fit changed circumstances.

                    And I don’t. If the Constitution doesn’t fit the age, it just doesn’t. Period. Don’t lie about what it means, change it.

                    Well, we both know why you’d rather lie about what it means than change it: You don’t have the votes to change it. So you’re stealing the change you can’t buy.

                    That’s all that is going on here, the very corruption I identified above.

          2. Yea, it was reauthorized on the gun moving through interstate commerce, whereas the first iteration of the law said it was just education, that’s what I said.

            1. Sure, but what needs to happen is that we drive a stake through the part of this “having moved” nonsense.

              The only thing the Constitution grants the federal government in the commerce clause is to regulate the commerce itself; there isn’t the slightest hint that “having moved in interstate commerce” is some kind of sticky attribute that permanently adheres to an item giving the federal government control over it for the rest of its existence.

  5. If all that is needed to save the ban is either a jurisdictional hook or Congressional findings, then this series has been much ado about symbolic federalism.

  6. If you accept that 922(o) is valid as applied to actual machine guns, then I don’t think this argument works. (I realize a lot of people don’t accept that premise, but it seems like Prof. Blackman does. At any rate, a district judge in Texas certainly has to accept it for now.) When Congress enacted 922(o), it chose to define “machinegun” to 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 machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” Any legislative determination about the ban’s connection to interstate commerce pretty clearly encompasses the ban on those components as well as assembled firearms. From a constitutional perspective, I have trouble seeing how the ban on bump stocks is any different from banning, say, a newly-invented trigger assembly that allows full-auto fire. (I realize that there’s an argument that the ATF is wrong, and that bump-stocks don’t fit within the definition that Congress enacted. But I think that’s an altogether different issue than the interstate commerce question.)

    1. The point here isn’t that they couldn’t ban bump stocks going forward on interstate commerce grounds. It’s that interstate commerce grounds provide no good basis for requiring existing owners to dispose of the bump stocks.

      922(o), pointedly, grandfathered in existing machine guns. Had to, because simple possession wasn’t commerce. (And because the federal government hadn’t progressed to thinking it had the authority to ban simple possession yet.)

      1. I’m having a little trouble telling from yo ur comments in this and the prior threads. Can you clarify which is your position?

        1. Congress could pass a ban on bump stocks (including possession), but would need to provide an exemption for those legally owned at the time the law took effect.

        2. Congress could pass a ban on all bump stocks (including those lawfully possessed) but would need to provide compensation for the lawful owners.

        3. Congress cannot pass a universal ban on bump stocks at all: it needs to limit a ban to a narrower class (such as bump stocks that have moved in interstate commerce, or a ban on transferring them instead of mere possession).

        (Incidentally, I don’t think any of these are Prof. Blackman’s position.)

        1. I wouldn’t actually agree with any of those, because none of them adequately respect the limitations on federal power. But, current precedent, as I understand it, is a combination of 1 and 2: Congress could ban commerce in new bump stocks, but grandfather in already owned ones, without paying compensation. If Congress wants to take away lawfully obtained bump stocks, compensation is owed.

          3 is sort of the case, except that the requirement of of a nexus in interstate commerce is entirely pro forma, satisfied by reciting magical words.

          1. What precedent supports 1 or 2?

            1. Every case where the government, years ago, decided to ban something, but grandfathered in the existing owners. Whether they were owners of machine guns, owners of eagle feathers, owners of ivory, people with wine cellars during Prohibition.

              Repeatedly, the government decided it didn’t want folks owning something, and instead of treating them like the bump stock owners, said, “we can’t just take this away from the current owners, we can only regulate people going forward.”

              THAT, until recently, was the practice, and thus the precedent. Sometimes you get precedents out of the government trying to do something, and the courts stopping them. But as often, and as important, you get precedent from the government NOT doing something, because it doesn’t need a court to tell it that it can’t do it.

              1. And then, one day, the people running the government forget they can’t do something, and it’s the courts’ job to remind them.

                The primary defense of the Constitution is the executive and legislative branches voluntarily not violating it. The judiciary only has to defend the Constitution when the other two branches have already gone off the rails.

                Don’t treat the government not having gone off a particular set of rails before as evidence they never existed. That’s what you do when you demand court precedents that a new practice is unconstitutional. Not having gone off the rails is actually evidence OF the rails, not of their absence.

    2. If you accept that 922(o) is valid as applied to actual machine guns, then I don’t think this argument works.

      I think you are correct, but I can’t tell if Blackman accepts that 922(o) is valid as applied to machine guns. He approvingly quotes Judge Jones’ dissent in Kirk which rejected that 922(o) is valid as applied to machine guns.

  7. So I wonder. By seeking to ban bump stocks because they (supposedly) make semiautomatic firearms into “machine guns”, is the government running a risk that the courts will end up ruling that the federal ban on “machine guns” is unconstitutional? Wouldn’t that be a kick in the head?

    1. It would be, but it’s not bloody likely. Most of the judiciary barely tolerate gun ownership, and refuse to treat it as a real civil liberty unless forced by somebody higher up the chain.

      It’s just not a right America’s legal culture is comfortable with.

  8. Sure, but what needs to happen is that we drive a stake through the part of this “having moved” nonsense.

    The only thing the Constitution grants the federal government in the commerce clause is to regulate the commerce itself; there isn’t the slightest hint that “having moved in interstate commerce” is some kind of sticky attribute that permanently adheres to an item giving the federal government control over it for the rest of its existence.

  9. I will be so happy to get my bumpstocks again!
    I had 2 bumpstocks and several “Znapfire” bump triggers.
    They were so much fun to use at the range.
    I could actually look thru the sights while using simulated full auto fire.
    Now I am reduced to bump firing with my finger and it is much harder and difficult to use the sights.
    I am so angry at Present Trump for caving to the left and banning them by executive fiat.
    It got him no benefit and drove lots of gun guys out of the Republican Party

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