Bump Stock Ban Highlights the Danger of Letting Bureaucrats Invent Crimes

Two years ago, peaceful, law-abiding gun owners across the country became felons overnight, thanks to the Trump administration’s ban on bump stocks. But as the U.S. Court of Appeals for the 6th Circuit recognized last week, Congress alone has the authority to define new federal crimes, while the president and his underlings are charged with enforcing those laws.

Combining both powers in a single branch is a license for tyranny — a danger the framers tried to avoid by carefully separating the legislative and executive functions. Regardless of their views on gun control, Americans who care about the rule of law should be troubled by the implications of letting unelected bureaucrats unilaterally and arbitrarily criminalize previously legal conduct.

Bump stocks, first patented in 2000, allow rifles to slide backward, propelled by recoil energy, after a round is fired, which resets the trigger. The sliding stock facilitates a rapid-firing technique in which the shooter maintains forward pressure on the rifle, causing his stationary finger to repeatedly bump against the trigger.

These accessories were mainly of interest to hobbyists, regulators and industry insiders until Oct. 1, 2017, when a gunman murdered 60 people in Las Vegas. Because the killer’s rifles reportedly were equipped with bump stocks, Donald Trump responded to the massacre with a promise to ban them by administrative fiat.

Tasked with inventing a legal rationale for a ban the president already was determined to impose, the Bureau of Alcohol, Tobacco, and Firearms reinterpreted the statutory definition of machine guns to cover bump stocks. But as the ATF itself had repeatedly recognized over the years, that reading of the law was inconsistent with its plain meaning.

Under the National Firearms Act, “the term ‘machinegun’ means any weapon” that fires “automatically more than one shot… by a single function of the trigger.” The definition also includes parts “designed and intended” to convert a weapon into a machine gun.

A rifle equipped with a bump stock, however, fires just one round for each “function of the trigger,” which must be reset before the weapon can fire again. The ATF tried to get around that problem by defining “a single function of the trigger” as “a single pull of the trigger,” defining pull to exclude what happens during bump firing, and treating the shooter as part of the rifle mechanism, ignoring his active participation in the process so that the gun could be said to fire “automatically.”

The ATF maintained that the 6th Circuit was bound to accept this highly implausible interpretation under “Chevron deference.” According to that controversial doctrine, courts must accept an agency’s “permissible” interpretation of an “ambiguous” statute.

Critics of that doctrine argue that it undermines the separation of powers, inviting administrative agencies to interpret laws, which courts are supposed to do, and even rewrite them, which is Congress’ job. That danger is especially acute, the 6th Circuit noted, when an agency threatens to fine and imprison people based on its own idiosyncratic understanding of the law.

As a result of the ATF’s ban, continued possession of bump stocks — products the agency had previously deemed legal — is punishable by a maximum fine of $250,000 and up to 10 years in prison. In this context, the appeals court said, deferring to the ATF’s new interpretation of the law would violate the “rule of lenity,” which says ambiguous criminal statutes should be read to favor defendants.

In light of those concerns, the 6th Circuit said, “an agency’s interpretation of a criminal statute is not entitled to Chevron deference.” And without the benefit of that doctrine, it concluded, the ATF’s redefinition of machine guns cannot be accepted, since it is clearly not the “best interpretation” of the law.

The issue here is not whether banning bump stocks is a good idea but who has the authority to do it. As the appeals court noted, “that judgment is reserved to the people through their duly elected representatives in Congress.”

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Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine.