The Unconstitutional Bump Stock Ban and What to do About it
by Michael Boldin (read this article in your browser)
Today, the Trump administration rolled out its new federal regulation banning bump-fire stocks.
Anyone who possesses one of the devices will have 90 days to turn in or destroy it once the final rule is published in the federal register. That is expected to happen this Friday.
The ban is wholly unconstitutional. And it is almost identical, in process, to a failed attempt by the Obama administration to ban M855 ammunition. But it can be nullified through state, local, and individual resistance.
TWO PEAS IN A POD
Acting Attorney General Matthew Whitaker signed the new rule Tuesday morning. This is notable considering the fact that the Obama administration did not believe that federal law allowed it to ban bump stocks.
“The stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed,” the Obama administration’s ATF technology chief wrote. “Accordingly, we find that the ‘bump-stock’ is a firearm part and is not regulated as a firearm under Gun Control Act or the National Firearms Act.”
In a dangerous and unfortunate step for the Constitution and liberty, it seems the Trump administration has taken an unconstitutional gun control move right out of Obama’s playbook.
As TJ Martinell noted, “President Obama directed the ATF to pursue a possible ban on the M855 cartridge. To do so, they released a proposed agency rule which redefined M855 ‘green tip’ ammunition as ‘armor piercing’ to qualify it for federal prohibition under the 1968 Gun Control Act (GCA).”
This is essentially the same process the Trump administration is using to qualify bump-stocks for federal prohibition under the 1934 National Firearms Act (NFA).
There’s some serious irony to this.
An administration widely believed to be in favor of more federal gun control rejected the notion of banning bump stocks under current federal law, while an NRA-backed administration, widely believed to be in favor of the Second Amendment, has aggressively pushed to get it done anyway.
In short, Trump is using Obama’s tactics to push more federal gun control — and both efforts were totally unconstitutional.
As Mike Maharrey wrote, “Because the Constitution does not delegate gun control to the federal government, and because the Ninth Amendment makes it clear that the federal government cannot infringe on individual liberties – even those not listed in the Bill of Rights – any regulation or laws regarding guns federal government is unconstitutional.”
“Simply put, no matter how you care to interpret the Second Amendment, based on a constitutional reading guided by Amendment IX and X, the federal government possesses zero authority to enforce any type of gun laws, or infringe on the right to self-defense in any way whatsoever,” Maharrey continued.
The Second Amendment has no exceptions, whether it’s for a bump-stock, M855 ammunition, or anything similar.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control.
As noted by the National Governors’ Association during the partial government “shutdown” of 2013, “states are partners with the federal government on most federal programs.”
Partnerships don’t work too well when half the team quits.
The ATF has just over 5000 employees for the entire country, and about one-third of them are in administration. That labor force gives them a capacity of a little over 8000-10,000 closed cases per year.
In theory, then, say there were 10 or 11 million people owning undocumented short-barreled shotguns in violation of the NFA. There is absolutely no way that the federal government would have the resources to stop them without significant support from state and local law enforcement.
In 2014, Judge Andrew Napolitano discussed how this would play out in response to Obama-era gun control proposals, noting that a single state withdrawing resources for federal enforcement would make new gun control efforts “nearly impossible” to enforce.
“If the federal government limits guns in a state, will it need the assistance of state police to enforce those limitations?” Napolitano asked rhetorically. “Yes, they will. And do the states have the right to refuse to enforce federal law that’s against state public policy? Yes, they do. That’s where we are on this.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Even the Supreme Court agrees. Under the long-standing “anti-commandeering doctrine,” the Court has repeatedly held that states are not required to use resources or manpower to enforce or implement federal acts or regulatory programs.
This is based primarily on five cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
On March 20, 2014, Idaho Gov. Butch Otter signed a bill that prohibits state or local enforcement of any federal act enacted after that date relating to personal firearms, a firearm accessory, or ammunition in violation of the Idaho state constitution’s protections of the right to keep and bear arms.
It reads, in part:
“Any official, agent or employee of the state of Idaho or a political subdivision thereof who knowingly and willfully orders an official, agent or employee of the state of Idaho or a political subdivision of the state to enforce any executive order, agency order, law, rule or regulation of the United States government as provided in subsection (2) of this section upon a personal firearm, a firearm accessory or ammunition shall, on a first violation, be liable for a civil penalty not to exceed one thousand dollars ($1,000) which shall be paid into the general fund of the state.”
A similar, and potentially more expansive law has been proposed for the 2019 legislative session in Texas.
House Bill 238 (HB238), from Rep Matt Krause (R-Fort Worth) would prohibit state agencies and law enforcement officers from having “contract with or in any other manner provide assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under the laws of this state.”
In short, as long as Texas itself doesn’t ban bump stocks, which it hasn’t, passage of HB238 would have the same effect as the 2014 Idaho law. That is, the state would be banned from helping the federal government enforce its new bump stock ban.
TO THE STATES
By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional act to their much-needed end.
Supporters of the right to keep and bear arms should focus their efforts on the state level. There are four steps that can be taken today.
- Download the model legislation at this link (pdf format)
- Find the email address of your state-level representative and senator here
- Be firm, but courteous. Email both and urge them to introduce the model legislation.
- Share this information widely via social media and to your email contacts.
- Wait 3-5 business days, then call the office of both your state representative and senator to follow up on your email no matter what you received in response.
It’s going to take human action to get the job done. Today, it starts with less than ten minutes of action. In the end, when enough people say “No!” to the federal government, and enough states pass laws to back those people up, there’s not much the feds can do to shove their so-called “laws,” regulations, and mandates down our throats.