Pastor Martin Niemöller’s famous observations concerning the perils of silence in the face of injustice because “it wouldn’t happen to me” has been frequently overused and sometimes abused. There is no doubt that it contains truth, as do most quotations and clichés do. I hesitated briefly to paraphrase it, but have reconsidered because it illustrates something that is about to happen here in the good old USA.
With apologies to the pastor: First they came for the bump stocks, I did not own a bump stock or have any use for one; so I did not object. Then they came for the semiautomatic rifles, I did not own one or have any use for one; so I did not object. Then they came for the handguns, I did not own a handgun or have any use for one; so I did not object. Then they came for me, and there was no one left to object.
On Thursday, March 29, 2018, the Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a notice of proposed rulemaking. (See Federal Register, Volume 83, No. 61, pp. 13442 – 13457, (available on-line).) The sheer number of pages in the Federal Register, where administrative rules and proposed rules, among other bureaucratic missives are published, should give us pause. But no matter. The 15 pages contain proposed rules changing the classification of the so-called bump stock devices that are alleged to make the semiautomatic rifles fire rapidly, almost to the speed of machine guns. The effect of the classification would be to ban the manufacture, sale, transportation, and even mere possession of these devices.
This notice uses a lot of words explaining the rationale for the reclassification of these devices, which earlier had been considered and rejected by ATF. The mass shooting in Las Vegas, Nevada in October 2017 spurred the anti-gun crowd, and various politicians, to make political points by calling for a ban. Even President Trump, who had been considered a friend of the right to bear arms, joined the fray against bump stocks. The reason seems to be that they are an easy target for politicians because (1) there are not that many of them compared with the total population, and thus might not generate the volume of outrage banning more common items, and (2) politicians doubtless believe having ATF reclassify the devices would spare them having to vote in Congress for such a ban, which might expose them to trouble from those opposed to such control.
Machine guns have been severely restricted for some time. An Act of Congress in 1986 prohibited further manufacture, sale, or even possession of machine guns manufactured subsequent to that date for sale to private persons. That Act did not ban previously manufactured and lawfully possessed machine guns, but required permits and registration.
The current proposed regulation, the benefit of which is problematic, is troubling for reasons beyond the possible use of such a device by some deranged or fanatical person committing mass murder and mayhem. The notice estimates that there are around 500,000 bump stocks in private hands. Considering there may be well over 300 million firearms all told in private hands in the United States, that does not seem like many. In truth it is not, and those who own them might be considered a vulnerable minority. To understand this concern one has to be cognizant of statutory and rule-making procedures.
The only Constitutional method for enacting statutes is for both Houses of Congress to pass them, and the President to approve by signing. Congress often passes laws that are general, and delegates specific applications and definitions to various regulatory agencies. In the case of bump stocks, the statute (18 U.S.C. §922 (o)) bans possession by private individual of machine guns, but excepts lawful possession or transfer of a machine gun that was lawfully possessed before the date of the statute. A bump stock is an accessory, which has the effect of, but not the specific mechanism for, rapidly firing a rifle. Through a strained, and to a large degree sophistic analysis, ATF has proposed to rule that a bump stock when attached to a conventional, semiautomatic rifle, such as an AR 15 has the effect of converting that rifle into the machine gun, and thus fall under the statutory definition of a prohibited device. Whether that is true is not the point of this discussion.
The analysis contained in the notice does address Second Amendment concerns. It concludes, however, that the recent Second Amendment jurisprudence, contained in the Supreme Court’s Heller case, and other cases, permits regulation of arms in the hands of individuals, while prohibiting the outright ban of all types of firearms. That is not challenged here.
What is challenged is that the regulation, which the ATF fully admits, would require present owners of bump stocks to either surrender them to authorities for destruction, without compensation, or to destroy them themselves (again without compensation). In other words, the government would be, by administrative fiat, depriving persons of their property. This involves another Amendment contained in our Bill of Rights. The Fifth Amendment provides, among a number of other important rights, that no person shall be deprived of property without due process of law. It is hard to believe that the founders, in enacting that Amendment, contemplated that an unelected, administrative body of bureaucrats, proposing a regulation that would effectively deprive persons of their property, constitutes due process of law. That is what this proposed regulatory amendment would do. It would, upon adoption, convert citizens who possess bump stocks, the overwhelmingly the majority of whom are otherwise law-abiding and peaceful, into felons. That is, unless they relinquish their property, or destroy it.
The great American jurist Oliver Wendell Holmes, Jr., who served on the Massachusetts Supreme Judicial Court for 20 years, and then on the United States Supreme Court for another 30, wrote in one of his books that “the life of the law has not been logic.” Holmes goes on to explain that the “felt necessities of the time” — which obviously may be arbitrary— have more to do with making the rules by which we are governed. Thus, it probably will be possible that a regulation, that in this case, has the effect of taking people’s property away notwithstanding the Fifth Amendment to the Constitution, can be held Constitutional. But the question another Supreme Court Justice, Earl Warren, was known to ask: lawful or not, is it right?
The notice of the regulation made a detailed analysis of the cost of the regulation, including enforcement, and what economists call negative externalities. The ATF, however concludes that the economic impact on individuals who own or who manufacture and sell bump stocks is minimal. Whether that is true or not — the $100 or so that one spent to purchase a bump stock may not be minimal to an overpaid Washington bureaucrat — depriving a private person of any of their property, without due process, is not minimal. If the government can take away a little bit, they sure can take a lot.
This is a Republican/Democrat or left/right issue, but a question of the individual freedom which is the basic raison d’être for the existence of the United States of America. If possession of any lawfully acquired property can be retroactively banned and made felonious, at a minimum it should be accomplished by a majority of our elected representatives in Congress; not by bureaucrats. Even the criminalization of possession of illegal drugs, not to mention machine guns, was made retroactive. Many who believe that public safety requires the banning of bump stocks say Congress is to beholden to the gun lobby — that is, the National Rifle Association (NRA) and its allies — and consequently no meaningful legislation will ever be passed. Even if that is true, so what? If the people speaking through their elected representatives do not want it then it should not happen regardless of the supposed benefit.
I urge everyone, regardless of your political persuasion, to oppose this proposed regulation. This can be done by Internet, fax, or mail, by following the instructions below. If you do, please be logical, civil, and respectful. Vitriol and invective are counterproductive.
You may submit comments, identified by docket number ATF 2017R-22, by any of the following methods:
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the directions for submitting comments.
• Fax: (202) 648-9741.
• Mail: Vivian Chu, Mailstop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. ATTN: 2017R-22.
Instructions: All submissions received must include the agency name and docket number for this notice of proposed rulemaking. All properly completed comments received will be posted without change to the Federal eRulemaking portal, http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” section of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory Affairs, Enforcement Programs Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington DC 20226; telephone: (202) 648-7070.
For a complete text of the Notice in the Federal Register, you may search online: Bump-Stock-Type Devices, 83 FR 13442-01.
