By Tank Murdoch @TheNatSent
(TNS) Regardless of how you feel about “bump stocks” — after-market devices you can add to semi-automatic rifles in order make them mimic full-auto fire — you’d have to agree that any action the government takes to ban them would have to be constitutional.
At least, we think so.
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As such, that’s why a federal court ruling caught our attention this week.
You may recall following the horrific murder of more than 50 people in Las Vegas on Oct. 1, 2017, led the Trump administration to ban bump stocks, because they were allegedly found to have been fitted to some of the rifles used during the attack.
However, as Reason magazine notes, even the previous anti-gun Obama administration had “determined that the National Firearms Act and the Gun Control Act did not prohibit bump stocks.”
Subsequent legal actions taken to reverse the Trump administration’s ban were either struck down by federal courts or review denied by the U.S. Supreme Court.
But that has changed.
U.S. District Judge Brantly Starr of the Northern District of Texas, who was, interestingly, appointed by President Trump, believes that the administration’s ban may be unconstitutional, and frankly, his logic is sound.
InÂ Lane v. United States, he writes:
Bump stocks allow semi-automatic rifles to fire at a rate close to machine guns. In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule determining that bump stocks qualify as prohibited machine guns under federal law and required their destruction or surrender. Brian Lane lawfully purchased three bump stocks before the rule took effect and raises a Fifth Amendment challenge that the federal government must compensate him for taking his property.
The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself. It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn’t abolish the states to take their police power, the CourtÂ DENIESÂ the motion to dismissÂ WITHOUT PREJUDICE.
The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation. The Court requests that the federal government also address any limits on that federal power and the Court’s proper role in examining the validity of the underlying rule when determining if there was a compensable taking.
It should be noted that Judge Starr, 41, is one of the firebrand originalists recommended to the president by conserviative legal organizations who are trying to reshape the federal judiciary and move it away from ‘lawmaking’ judicial activism and back to its traditional role of simply deciding if Executive and Legislative branch actions comport with the Constitution.
Continuing, Starr rejected the notion that the federal government has any delegated police powers:
The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply. This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government.
Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation’s founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power. None of these powers is the police power.
As such, when implementing new rules and regulations — or passing legislation — it is incumbent upon the other two branches of government to rely on their enumerated powers:
Rather than deny the federal government’s motion to dismiss outright, the Court will allow it an opportunity to file a new motion to dismiss, based on the limited enumerated powers the federal government has (as confirmed by the Constitution, the Supreme Court, and even Wikipedia).
If the federal government opts for the commerce power, it should discuss the limitations in Lopez and Morrison. Also, the federal government should be prepared to address whether the validity of the final rule is an issue under the proper judicial framework for assessing the taking.
“Judge Starr is quite right. The federal government lacks a police power. And I haven’t seen this argument addressed in any other bumpstock cases,” writes attorney Josh Blackman for Reason.
Few would deny that what happened in Las Vegas was horrific, ghastly, and evil. The event spurred a lot of emotions. But imagine if our founders had established a form of government that allowed our elected officials to govern onÂ emotions, instead of hard-and-fast written parameters. We’d have a lot fewer freedoms today.
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It’s not about whether the federal government ‘ought to’ ban bumpstocks; it’s about whether the federal government has theÂ authority to do so, as Judge Starr reminds us.
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