Bump Stock Rule Bumps Up Against the Constitution

This morning, Acting Attorney General Matthew Whitaker signed the Trump Administration’s new regulation banning bump stocks. The final rule is largely unchanged from the one put up for notice and comment several months ago, but contains over 100 pages of responses to the tens of thousands of comments submitted both in favor of and opposition to the rule (the majority of which opposed the rule, including a comment submitted by us and Josh Blackman).


The Administration’s main contention continues to be that language of the National Firearms Act and Gun Control Act—which has not needed clarification in some 80 years—is ambiguous in regards to bump firing, a contention we dispatched back in June. Yet the government is attempting to use this supposed ambiguity to shoehorn bump stocks into a statute that regulates possession of machine guns.


Regardless of what public opinion is at this moment, the law means what it says. The executive branch has the power to interpret existing law, not write new ones. The administration argues, essentially, that because the statute did not provide a separate definition of the terms “automatically” and “function,” that it gets to insert their own meaning. That simply isn’t the case. Administrative interpretations are supposed to do just that—interpret existing law—not give new meaning to an old one.


In this case, the existing law specifically defines “machine gun”; several administrations have reviewed bump stocks and repeatedly determined that they don’t fall in that category. It’s been clear for decades that Gatling guns and bump stocks were not machine guns. This regulation is not an attempt to clarify a vague law, but to seize political expediency to expand the power of the executive.


If the government really wants to regulate bump stocks, it needs to do so by passing a new law, not by assigning new meaning to an old one. The Founders weren’t short‐​sighted; there is a reason laws that affect the entire nation have to come through Congress, not reimagined by bureaucrats.


What’s worse is the fact that the administration’s attempt to skirt the Constitution is for something as inconsequential as bump stocks. We are talking about seriously damaging the integrity of our legal system over a novelty item. In a country as divided as ours, this seems like a squandering of political capital.


The powers of the federal government are few and defined, not open to unlimited interpretation by unelected bureaucrats. In light of this, our regulatory comment potentially gives Cato a right to intervene in the coming litigation. Stay tuned.