“The ATF has no authority under the law to ban bumpfire stocks. Period of time.”
That is not a quote from the recent U.S. Supreme Court majority opinion striking down the Trump administration’s ban on such devices, nor is it the summary of the ruling by a diehard pro-gun organization.
Instead, that quote is from the late Senator Dianne Feinstein (D-CA), who warned against asking the Bureau of Alcohol, Tobacco, Firearms and Explosives to act unilaterally in 2017 — just days after a gunman used the devices to kill and injure 60 people. hundreds more during the Oct. 1 mass shooting at the Route 91 festival in Las Vegas.
Feinstein was hardly what you would call a “moderate” on gun control. A prominent California Democrat, she routinely advocated for more restrictive national gun regulations as part of her political legacy. However, she also clearly saw the Schoolhouse Rock episode, which explains how laws are made and that it is the responsibility of Congress – not law enforcement agencies – to change those laws when necessary.
When the U.S. Supreme Court issued a similar ruling earlier this month and lifted the ban on bump stocks, many of Feinstein’s former colleagues conveniently forgot basic lessons about our civic process. Reactions from prominent Democrats ranged from disappointment to outrage, with some even going so far as to completely mischaracterize the nature of the ruling itself.
Pundits and politicians weren’t the only ones dismayed by the court’s final decision. In her dissent, Justice Sonia Sotomayor expressed disbelief that a 1986 law banning machine guns did not directly apply to a mechanism that the ATF itself had previously determined was legal.
“When I see a bird that walks like a duck, swims like a duck and quacks like a duck, I call that bird a duck,” Sotomayor wrote.
And that’s a fair point – if we were talking about a law regulating all waterfowl that resemble a duck. However, US law carefully defines automatic firearms – and a device that merely allows an ordinary firearm to resemble certain features of a machine gun does not necessarily fall under such a specific and nuanced definition.
To be fair, Sotomayor’s objection was probably rooted in a misunderstanding about bump stocks, automatic firearms, or a combination of the two. In her dissent, she clearly misidentified how such devices alter the function of a firearm, claiming that “a bump stock equipped semi-automatic rifle ‘automatically fires more than one shot, without manual reloading, by a single function of the trigger .'”
The problem with Sotomayor’s reasoning is that a bump stock-equipped rifle does not fire “automatically,” nor does it fire multiple rounds with a “single function of the trigger.” Like the New York Times explanation of bump stocks illustrates that such devices do nothing to convert a firearm’s internal mechanisms from a semi-automatic mechanism to an automatic mechanism – they merely make it easier for a shooter to quickly ‘bump’ the trigger, thereby it has a rate of fire that mimics that of a machine gun.
While many have argued that a device that enables such rapid fire should warrant its regulation in the same manner as automatic weapons, law enforcement agencies simply do not have the authority to unilaterally change legal definitions to influence such policy outcomes. As Justice Samuel Alito wrote in his opinion, which agreed with the majority: “An event that emphasizes the need to change a law does not, by itself, change the meaning of the law.” Only Congress can change laws in such a way.
Feinstein put it even more bluntly when the ATF first announced that it would consider taking unilateral action on the matter, saying that “both the Justice Department and ATF attorneys know that legislation is the only way to bump stocks.” Virtually everyone seemed to know this was the case — including Rep. Dina Titus (D-NV), who has repeatedly introduced legislation to codify a ban on temporary shares into law, despite the Trump administration’s executive actions on this area.
“When the Trump administration did this through regulations, we immediately said (that) this is just a way to avoid having to pass a law because they knew it would be challenged in court and would likely be abolished,” Titus said after the ruling. “We expected it.”
Frankly, the idea that Trump unilaterally banned bump stocks as part of an elaborate conspiracy to discourage congressional action on this issue gives him far too much credit for strategic politics. Even Titus acknowledges that Trump is vacillating by the minute on policy positions depending on what he believes is politically advantageous — rather betraying the idea that he was playing a three-dimensional chess game on the issue in 2018.
Nevertheless, frustration over the policy implications of the Court’s recent ruling is entirely understandable for Democrats like Titus. However, the outrage over the Supreme Court banning the executive branch from usurping Congress’s powers is somewhat ironic given Democrats’ concerns about Trump’s disregard for democratic norms.
The concern about an overzealous executive is one that must go beyond partisan politics. Presidents have long sought to consolidate powers for themselves that have traditionally been exclusive to the legislature. The court’s latest ruling — as well as a few more cases about to be decided — indicate that at least one branch of the government is still serious about maintaining a separation of powers between the White House and our elected representatives in the Congres.
And that should be a welcome development for anyone interested in limiting the authoritarian impulses of future strongmen in the executive branch — even if the policy outcomes in this particular case are less than satisfactory.
Michael Schaus is a communications and branding expert based in Las Vegas, Nevada, and founder of Schaus Creative LLC – an agency that helps organizations, companies and activists tell their stories and motivate change. He has more than a decade of experience in public affairs commentary, having worked as a news director, columnist, political humorist and most recently as director of communications for a public policy think tank. Follow him at SchausCreative.com or on Twitter at @schausmichael.
