Separation of Powers

The Bump Stock Ban Highlights the Danger of Letting Bureaucrats Invent Crimes

A federal appeals court rejects a highly implausible redefinition of machine guns.

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Two years ago, peaceful, law-abiding gun owners across the country became felons overnight, thanks to the Trump administration's ban on bump stocks. But as the U.S. Court of Appeals for the 6th Circuit recognized last week, Congress alone has the authority to define new federal crimes, while the president and his underlings are charged with enforcing those laws.

Combining both powers in a single branch is a license for tyranny—a danger the Framers tried to avoid by carefully separating the legislative and executive functions. Regardless of their views on gun control, Americans who care about the rule of law should be troubled by the implications of letting unelected bureaucrats unilaterally and arbitrarily criminalize previously legal conduct.

Bump stocks, first patented in 2000, allow rifles to slide backward, propelled by recoil energy, after a round is fired, which resets the trigger. The sliding stock facilitates a rapid firing technique in which the shooter maintains forward pressure on the rifle, causing his stationary finger to bump repeatedly against the trigger.

These accessories were mainly of interest to hobbyists, regulators, and industry insiders until October 1, 2017, when a gunman murdered 60 people in Las Vegas. Because the killer's rifles reportedly were equipped with bump stocks, Donald Trump responded to the massacre with a promise to ban them by administrative fiat.

Tasked with inventing a legal rationale for a ban the president already was determined to impose, the Bureau of Alcohol, Tobacco, and Firearms (ATF) reinterpreted the statutory definition of machine guns to cover bump stocks. But as the ATF itself had repeatedly recognized over the years, that reading of the law was inconsistent with its plain meaning.

Under the National Firearms Act, "the term 'machinegun' means any weapon" that fires "automatically more than one shot…by a single function of the trigger." The definition also includes parts "designed and intended" to convert a weapon into a machine gun.

A rifle equipped with a bump stock, however, fires just one round for each "function of the trigger," which must be reset before the weapon can fire again. The ATF tried to get around that problem by defining "a single function of the trigger" as "a single pull of the trigger," defining pull to exclude what happens during bump firing, and treating the shooter as part of the rifle mechanism, ignoring his active participation in the process so that the gun could be said to fire "automatically."

The ATF maintained that the 6th Circuit was bound to accept this highly implausible interpretation under "Chevron deference." According to that controversial doctrine, courts must accept an agency's "permissible" interpretation of an "ambiguous" statute.

Critics of that doctrine argue that it undermines the separation of powers, inviting administrative agencies to interpret laws, which courts are supposed to do, and even rewrite them, which is Congress' job. That danger is especially acute, the 6th Circuit noted, when an agency threatens to fine and imprison people based on its own idiosyncratic understanding of the law.

As a result of the ATF's ban, continued possession of bump stocks—products the agency had previously deemed legal—is punishable by a maximum fine of $250,000 and up to 10 years in prison. In this context, the appeals court said, deferring to the ATF's new interpretation of the law would violate the "rule of lenity," which says ambiguous criminal statutes should be read to favor defendants.

In light of those concerns, the 6th Circuit said, "an agency's interpretation of a criminal statute is not entitled to Chevron deference." And without the benefit of that doctrine, it concluded, the ATF's redefinition of machine guns cannot be accepted, since it is clearly not the "best interpretation" of the law.

The issue here is not whether banning bump stocks is a good idea but who has the authority to do it. As the appeals court noted, "that judgment is reserved to the people through their duly elected representatives in Congress."

© Copyright 2021 by Creators Syndicate Inc.

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  1. Anybody heard any more details on the Vegas shooting? It’s been crickets since it happened.

    1. Somebody did something.

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    2. Not one of those 50 people were as newsworthy as George Floyd.

      1. It’s silly, put anyone in a shopping mall, and give them a revolver, a pocketful of bullets AND INTENT and you have 4 critically wounded people, even before they reload.

        Or, let someone drive a Ford 150 on the sidewalk of ‘K’ Street one morning; you can kill several people, and seriously maim a dozen more, and you won’t even miss the light.

        If somebody intends to kill others, there’s not much you can do to stop them; is there?

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  4. 4000 shot, 800 homicide in Chicago last year. Not a single bump stock or white supremacist was involved in any of them. I thought for sure that I could find at least one. No luck. They are elusive, like Bigfoot.

    1. They are elusive, like Bigfoot.

      If Bigfoot regularly marched openly at rallies every year. They’re more omnipresent and elusive, like the Illuminati or the Jews.

    2. It’s all in the reporting and highlighting. If you were to take Chicago [where homicides exceeded the total for 46 States combined] our homicide rate would probably look a lot more like France, school teacher beheadings notwithstanding.

    3. Everyone killed on Chicago was a victim of multi-racial white supremecy.

      1. If you ever want a “fun” read, check out HeyJackass or the CWB blog. Heyjackass has some really great statistics like, “shot in the junk o’ meter, and “shot in the ass o meter”. As bad as the stats in Chicago look, the reality is much worse. Everything is under-reported. A major city in the US is only solving 10% of the murders. Think about that, 90% of the murderers are still running around killing more people. John Wayne Gacy, would love how the Democrats are running modern Chicago. Hell, he would be an Alderman!
        Now that Joe and the Hoe are in, you won’t hear about Chicago. They are going to “kick that can down the road” until it collapses.

  5. His father was characterized by the FBI as a ‘psychopath’. That likely traumatized him as a child and this was his revenge. I don’t think it was necessarily a conscious response. But these events are usually vindications (or execrations) of their parents’ legacy.

  6. It is very comforting to know that our God given rights, guaranteed by the US Constitution, can (possibly) be returned by the court system in only two years, if they are arbitrarily taken from us.
    Now do the rest of the second amendment.
    Then asset forfeiture.

  7. I always figured that bump stocks were invented by ammunition manufacturers.

    1. They really should just make automatic weapons civilian legal. Bump stocks would disappear overnight if they did that. Actual machine guns are safer and less ridiculous than bump stocks. It’s time to admit that trying to ban objects or ideas just doesn’t work. It doesn’t work with copyright, it doesn’t work with weapon or narcotic laws, it’s all useless.

      1. When the bump stock came out I was initially intrigued, and then decided it was more of a range toy, and an unreliable one at that. Instead I went with a binary trigger [fires on pull, fires on release, repeat]; much more functional and reliable, and operates as part of the firing mechanism, and the selecter switch has a third position [safe, fire, binary, similar to an actual automatic weapon].

        It definitely works, but as generally the case with rapid fire it is not particularly accurate after the first couple of rounds, even with a muzzle brake/comp. In that sense I still consider it more of a yee-ha ammo wasting range toy; but I suppose if a mob were coming at me it would provide decent suppression fire.

        1. The ranges I have been to do not allow rapid fire so I suppose that would include bump stocks. I suppose you can find some that do.

          I have heard the same thing. It becomes inaccurate and most shooters strive for accuracy.

          The ban seems rather silly anyway.

        2. the bumpstock is a toy, a novelty, a I’ve got one and you don’t” thing.
          Personally I’d far rather fire one round every three seconds on target than fifty rounds in ten seconds with only two hitting what I need to hit. Thirty round mag means thirty bad guys neutralised in a minute and a half. They can’t duck fast enough to escape their deserved fate at that rate.

      2. If full auto wasn’t illegal, the ghetto would be an even worse bloodbath. They can easily file down a sear and get full auto out of a throw away gun like a Tech-9. They don’t do it that often because a weapon firing on auto becomes a Fed case.

        1. You can go an well known sites and legally purchase the parts, including a jig to drill the extra hole in the receiver to pin the auto sear, to convert an AR 15 into a 16; but as you say, it becomes a “federal” case at that point. As it is, there very few cases of persons being killed with actual machine guns [and there are a number of them around, both legal and illegal] since 1936. Criminals much prefer weapons that are easily concealable, i.e., handguns.

        2. Felon in possession of a firearm is a Federal case as well, but one that’s seldom prosecuted.

        3. If the gangsters that are already out there don’t care about getting arrested there are lots of ways to get a real fully automatic weapon right now as others have said. Clearly, gang bangers don’t want fully automatic weapons, or they would have them. You really think they buy their guns at the friendly local Chicago gun store?

          1. Right; I could put one together [with the parts I describe above] in an easy afternoon at home; I have a completely legal “binary” trigger instead, but it’s usefulness is questionable; if you are not fighting a group the size of a military company, coming across a field at you, and want to hit what you are shooting at instead of making a bunch of noise and wasting a bunch of ammo.

    2. Which works because Americans don’t actually know how to aim at what they want to target.

  8. Trump was wrong on the bump stock ban but he’s no longer president and it’s time for Sullum to drop the tired “Orange Man Bad” rhetoric, wake up, and realize Biden is 100x worse.

    1. Again, even if you don’t like the bump stock ban, Trump, or both, Trump’s bump stock ban is objectively less far-reaching and invasive than Biden’s proposals. Hell, readily conceivable as being less damaging and divisive than the Mulford Act.

    2. That particular action of Trump’s made the next Democrat President more dangerous. Before that action, Biden was probably only 10x worse than Trump……..

  9. Yeah, I’m sure this is such a huge issue. Somehow 2nd amendment people will ignore the “militia” part and gravitate to somehow this infringes on their right to bear arms because they can’t have their bump stock.

    A bigger pile of snowflakes I’ve never seen.

    1. “Somehow 2nd amendment people will ignore the “militia” part and gravitate to somehow this infringes on their right to bear arms…”

      Yawn.

    2. Don’t forget the muskets. Only 18th century weapons should be allowed.

      Oh, and it’s easier to buy a gun than to buy a car or vote.

      Thousands of people are killed in the U.S. every year by automatic assault weapons. It is known.

      1. “Thousands of people are killed in the U.S. every year by automatic assault weapons. It is known.”

        Aren’t those correctly termed “fully-semi-automatic” weapons? /sarc

        1. Yep. With deadly handles and barrel shrouds.

    3. What makes you think the “militia” part is being ignored?

      Apparently, the militia that perpetrated The Bear Spray Insurrection is the greatest danger this country has ever faced.

      1. The greatest danger our corrupt government every faced. As it should be.

    4. So, you’re saying that only the militia is allowed to own firearms?

      Cool.

      Since we are all, by law, in the militia I guess we can all own firearms.

      1. No you are not IN the militia. The militia is OF you. Since you do not seem to understand what that really means, the 2A really doesn’t apply.

        1. Today, as defined by the Militia Act of 1903, the term “militia” is used to describe two classes within the United States:[8]

          . . .
          Unorganized militia – comprising the reserve militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the State Defense Forces, National Guard, or Naval Militia.

          You do not seem to understand what the law says.

    5. Go read 10 USC, shitlunches.

    6. This. Except that militia itself cannot be infringed either as it is an enumerated obligation under Article 1 Sec 8.

      That means militia service is a part of that keep and bear arms. And militia service cannot be eliminated simply because we are lazy people so let’s have a standing army of mercenaries not citizens.

      And anyone who thinks the 2A – or federal/state govt – even remotely touches on personal self-defense is a tyrant in waiting.

      The only level of government where there is true voluntary consent re self-defense is small-scale local because self-defense is not something where majority rule ensures liberty and not something that can just be abdicated without explicit consent.

      1. even remotely touches on personal self-defense is a tyrant in waiting

        Anybody advocating people’s right to defend themselves, from each other, the government, or space aliens, is a tyrant!

        Keep beclowining yourself. You just make people as retarded as you believe Trump to be look reasonable.

        1. What grade did you actually fail reading comprehension? It’s a shame they just continued to keep passing you. On the bright side, I am happy that you found a career as a useful idiot.

          1. C’mon JFree! Say it! Say “personal self-defense” again! Would you do it for a peanut? How about a cracker? Would you say “personal self-defense” for a cracker? Huh?

      2. Are you seriously saying there is no right to self-defense in the 2nd amendment?

      3. So, which of the federal government’s enumerated powers authorizes Congress to regulate what individuals can possess, or to regulate self-defense?

    7. “Somehow 2nd amendment people will ignore the “militia” part and gravitate to somehow this infringes on their right to bear arms”

      Somehow, some people ignore the “people” part.

      “The right of the militia to keep and bear arms”

      Or does it read:

      “The right of the people to keep and bear arms”

    8. not a bad weak attempt for someone who eats respberries for supper.

    9. didjya fergit that the “militia” are THE WHOLE OF THE POEPLE<armed with THEIR OWN WEAPONS. Some can be VERY accurte wiht bumpstocks, others can fire a semiautomatic rifle faster than any bumpstock AND put those rounds on target.
      The gummit has "determined" that the bump stock IS a "machine gun", in other words, that plastic toy all by its lil= ol- sewf can fire as if it were a machine gun.. without the rest of the rifle attached. IF they can "determine" that, what can't they "determine"?

      Shall not be infornged means precisely that.. NO ONE can linit or restrict. Since that rigiht comes from the God who made us, it canot be taken.

    10. The “militia” part only provides a rationale for why the 2nd amendment should NOT be violated.
      It NEVER said that militias were the rationale FOR the 2nd amendment itself !

  10. “Chevron deference.” Fuck that noise, time for the entire concept of deference to unelected, unaccountable, and self governing agencies to end.

    Hopefully this ruling means it is a lot less likely for any of the up to now threatened “executive action” to address the “epidemic of gun violence” if Congress doesn’t give Biden what he wants.

  11. Fucking useless people. Bump stocks should not be banned. They should be issued to every American. Along with ammo. And no namby pamby rules. Just get rid of the problem once and for all.

  12. quick. ban something the courts will overturn so everyone will be happy & Sullum will think he’s clever.

    1. I’ve been expecting to hear, any day now, that I via an executive order I’ve became a de facto felon overnight.

      I suspect this event is going to discourage that probability, at least a bit. Nothing worse than mandating a law, only to have it overturned, to make one look weak and ineffectual [especially when our current POTUS already tends to personify those traits].

      1. Overturned years later, when you’re dead anyway. And then your ‘vice’ president has taken over and can blame it all on those evil Republicans – give me more money for my election campaign so I can save Biden’s legacy!

  13. A real machine gun is more responsible than a bump stock modified rifle.

    Pulling a rifle forward defeats the stabilization intended by a rifle stock. It impairs control.

    The trigger is effectively disabled by pulling the rifle forward such that firing occurs while the rifle is in motion and without the conscious effort and primary safety of pulling a trigger.

    A bump stock makes a dangerous machine gun that nobody would buy if a real machine gun was available.

    1. That being said, some real machine guns exhibit bad control.

      I rented a Thompson.45 in Louisiana once. On full auto that baby moved up. It needed constant correction to keep down. The old boys at my home range told me they would step on the sling to keep it down.

      In battle, accuracy suffers.

      1. A machine gun in battle for instance a BAR (Browning Automatic Rifle) fires 30.06 at 500 rounds a minute from a 40 round magazine. One man in a platoon firing a BAR at the enemy position can allow the platoon to advance because only an idiot would poke his head up to see what was going on.

        1. Yeah, I reload 30:06 for my hunting target rifle.

          A few years ago I was at boomer shoot in Idaho. Buddy instructor made it clear he thought I was nuts showing up with a hunting rifle and flat based bullets. Until I kicked his ass at 375.

          That was a fun trip

  14. I had numerous bumpstocks, and they work just fine.
    With a Little practice you can do three round bursts, longer bursts, or even a full mag dump.
    Like all automatic weapons, a bump stock equipped gun moves up and to the left during burst fire.
    Which is why the military recommends three round bursts.
    With a low recoiling caliber like 9 mm, you can do a mag dump and stay on target by constantly pulling down and the right.
    Your target will have a series of oval shaped holes.
    Since Trump’s bump stock ban, I turned in my bump stocks and bump triggers and bought an actual machine gun instead.

    1. Cool, now go mow down dozens of your neighbors. Fill their bodies with oval-shaped holes. Enjoy!

  15. The danger is not “letting bureaucrats invent crimes,” it’s providing multitudes of deranged individuals easy access to rapid-fire military weapons. Such as the two jihadis who slaughtered many people in a sickening bloodbath during a Christmas party several years ago at the same place in San Bernardino, California, where my autistic nephew receives services. Taxpayer-funded services, mind you, that have improved his life and the lives of his parents.

    1. Agreed. The gun lobby is using an outdated and dangerous Amendment to the Constitution to enable the sales of these and other items that the average citizen should not be able to access–and Americans continue to die daily because the cowards in Congress won’t stand up to them.

  16. October 1, 2017, when a gunman murdered 60 people in Las Vegas. Because the killer’s rifles reportedly were equipped with bump stocks

    I saw the photos released by the FBI of the inside of that room after. It did appear a few of those rifles did have bump stocks attached. Funy thing, though… I’ve worked as a pro photograhper for a number o fyears, and every one of those photos appeared to be STAGED. Everything was neat and orderly and clean.. not what one would expect after alledgedly firing a few thousand rounds out the window.
    Then came the cruncher: BATF were on scene and asked to take the rifles in question and run some evaluations on those weapons. FBI said NO WAY. So NO ONE has examined those rifles with the bump stocks attached whether THOSE rifles had even been fired WITH those bump stocks. FBI flatl refused, and to this day there have been NO reports on the examination of any of the weapons

    Once again, smoke and mirrors fro da gummit.

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  19. What is needed is a repeal of the Second Amendment, which was passed when guns were flintlocks and only capable of killing one person at a time. Of course, because of the gun lobby, Congress, especially the Republicans, would never do this. They have already made it plain that they value their own power and pocketbooks ahead of the safety of Americans,

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