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Justice Gorsuch on Bump Stock Ban: How Can ‘Ordinary Citizens Keep Up?’

By: José Niño

Damon Root of Reason recently covered Supreme Court Justice Neil Gorsuch’s rejection of the Trump administration’s use of executive power to rewrite federal gun control without congressional input.

The Background
The bump stock ban is often overlooked by many conservatives. Following the 2017 massacre in Las Vegas, the Trump administration promised to use executive action to prohibit bump stocks. The gunman who killed 58 people allegedly attached bump stocks to the rifles he used to carry out the massacre. Although these accessories enable rapid fire, they do reduce a shooter’s overall accuracy.

Nevertheless, President Donald Trump felt as if he had to do something in the wake of the outrage from the shooting. "We can do that with an executive order," Trump asserted. "I'm going to write the bump stock; essentially, write it out….They're working on it right now, the lawyers."

The Department of Justice drew up a new rule modifying "the Bureau of Alcohol, Tobacco, Firearms and Explosives regulations to clarify that (bump-stock-type devices) 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."

Put simply, the federal regulations on machine guns would then apply to bump stocks.

In the final bump stock rule published in the Federal Register, the Department of Justice rationalized its actions by citing a controversial Supreme Court opinion that argues the executive branch should have broad powers when interpreting the meaning of "ambiguous" federal legislation. "When a court is called upon to review an agency's construction of the statute it administers," the bump stock rule detailed, "the court looks to the framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc."

Justice Neil Gorsuch disagrees with the Trump administration’s decision to single-handedly rewrite federal gun control laws. Gorsuch wrote:

"The agency used to tell everyone that bump stocks don't qualify as 'machineguns.' Now it says the opposite. The law hasn't changed, only an agency's interpretation of it. How, in all of this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?"

Gorsuch's statement was included in the Supreme Court's denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. Damien Guedes originally challenged the constitutionality of Trump's bump stock ban, but lost his case before the U.S. Court of Appeals for the District of Columbia Circuit, which granted deference to the Justice Department in its interpretation of the bump stock ban in accordance with the Chevron precedent. The Supreme Court ended up declining to hear Guedes' case.

Gorsuch agreed with this move. "Other courts of appeals are actively considering challenges to the same regulation," he wrote, and "before deciding whether to weigh in, we would benefit from hearing their considered judgments."

Gorsuch further noted that waiting for the right case to come up "should not be mistaken for lack of concern."

As a matter of fact, Gorsuch insinuated that the right case could not arrive soon enough, writing:

"The law before us carries the possibility of criminal sanctions. Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A 'reasonable' prosecutor's say-so is cold comfort in comparison."

To the casual observer, the bump stock ban looks like much ado about nothing. The way this policy was advanced, however, could enhance the power of public administration at the expense of the traditional legislative process, which generally safeguards liberties better than government agencies. In a situation where bureaucracy is empowered, liberty loses.

Just ask yourself this, when was the last time a bureaucrat was voted out of office for bad behavior?

To correct this error, we will need a solidly pro-gun Congress to rein in the administrative power of the ATF and reverse this ban.

José Niño is a Venezuelan-American political activist writing from Fort Collins, Colorado. Contact him at jnino584@gmail.com.

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Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect those of Gunpowder Magazine.