After 2017's mass shooting in Las Vegas, President Donald Trump vowed to ban bump stocks, a type of firearm accessory that the shooter reportedly used. "We can do that with an executive order," Trump declared. "They're working on it right now, the lawyers."
The lawyers at the Department of Justice (DOJ) came up with a new Bureau of Alcohol, Tobacco, Firearms and Explosives regulation "to clarify that [bump stocks] are 'machineguns' as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968" because "such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger." The federal ban on machine guns, in other words, would be interpreted by the Trump administration to ban bump stocks too.
That unilateral executive action has now come under fire from two federal judges appointed by Trump himself.
On March 2, Supreme Court Justice Neil Gorsuch issued a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The executive branch "used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite." Yet "the law hasn't changed, only an agency's interpretation of it," Gorsuch complained. "How, in all of this, can ordinary citizens be expected to keep up….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"
Gorsuch wasn't alone. On March 30, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, issued a blistering opinion in Lane v. United States that basically accused the DOJ of ignoring foundational constitutional principles in its defense of Trump's bump stock ban.
The Justice Department justified the ban as a lawful exercise of the "federal police power," Starr observed. But "the federal government forgot the Tenth Amendment and the structure of the Constitution itself," which grants no such power to the feds. "It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power," Starr wrote, he had no choice but to deny the government's motion to dismiss the case. He then tartly added: "The Court will allow the government to try again and explain which enumerated power justifies the federal regulation."