“The ATF lacks authority under the law to ban bump-fire stocks. Period.”
That’s not a quote from the U.S. Supreme Court’s recent majority opinion overturning the Trump administration’s ban on such devices, nor is it some diehard pro-gun organization’s summarization of the ruling.
Instead, that quote belongs to the late Sen. 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 murder 60 and wound hundreds more in the October 1 mass shooting at the Route 91 festival in Las Vegas.
Feinstein was hardly what one would call a “moderate” on the issue of gun control. As a prominent Democrat from the state of California, she routinely advocated for more restrictive national firearm regulations as part of her political legacy. However, she also clearly saw the episode of Schoolhouse Rock that explains how laws are made and that it’s the responsibility of Congress — not law enforcement agencies — to amend those laws when needed.
When the U.S. Supreme Court ruled similarly earlier this month and struck down 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 going so far as to completely mischaracterize the nature of the ruling itself.
Pundits and politicians weren’t alone in their dismay at the court’s ultimate decision. In her dissent, Justice Sonia Sotomayor expressed disbelief that a 1986 law outlawing machine guns didn’t directly apply to a mechanism 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,” wrote Sotomayor.
And that’s a fair point — if we were talking about a law that regulates all waterfowl reminiscent of a duck. American law, however, carefully defines automatic firearms — and a device that merely allows a regular firearm to resemble certain characteristics of a machine gun aren’t, necessarily, covered by such a specific and nuanced definition.
To be fair, Sotomayor’s objection was likely rooted in a misunderstanding of bump stocks, automatic firearms or a combination of the two. In her dissent, she plainly misidentified how such devices alter the function of a firearm, claiming that “A bump-stock-equipped semiautomatic rifle fires ‘automatically 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 doesn’t fire “automatically,” nor does it fire multiple rounds with a “single function of the trigger.” As the New York Times explainer on bump stocks illustrates, such devices do nothing to convert the internal mechanisms of a firearm from a semi-automatic mechanism to an automatic mechanism — it merely makes it easier for a shooter to “bump” the trigger rapidly, allowing them to achieve a rate of fire that mimics that of a machine gun.
While many have argued that a device enabling such rapid fire ought to justify regulating it the same as automatic weapons, law enforcement agencies are simply not authorized to unilaterally alter legal definitions to affect such policy outcomes. As Justice Samuel Alito wrote in his opinion concurring with the majority, “An event that highlights the need to amend a law does not itself change the law’s meaning.” Only Congress can amend laws in such a way.
Feinstein put it even more bluntly when the ATF first announced it would consider taking unilateral action on the issue, saying “both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks.” Indeed, pretty much everyone seemed to know that was the case — including Rep. Dina Titus (D-NV), who has repeatedly introduced legislation to codify a bump stock ban into law, despite the Trump administration’s executive action on the issue.
“When the Trump administration did it by regulation, we said immediately [that] this is just a way to avoid having to pass a law, because they knew it would be challenged in court and likely struck down,” Titus said after the ruling. “We anticipated it.”
Honestly, the notion that Trump unilaterally banned bump stocks as part of a convoluted conspiracy to disincentivize congressional action on the matter is giving him far too much credit for strategic politicking. Even Titus acknowledges that Trump vacillates on policy positions by the minute depending on what he believes to be politically advantageous — which rather betrays the notion he was playing some three-dimensional chess game on the issue back in 2018.
Nonetheless, frustration over the policy implications of the court’s recent ruling is quite understandable for Democrats such as Titus. Outrage over the Supreme Court prohibiting the executive branch from assuming the powers of Congress, however, is somewhat ironic given the concern Democrats have over Trump’s disregard for democratic norms.
Indeed, concern over an overly zealous executive branch is one that should go beyond partisan politics. Presidents have long sought to consolidate powers for themselves that have traditionally been exclusive to the legislative branch. The court’s most recent ruling — as well as a few more cases that will soon be decided — indicate there’s at least one branch of government still serious about maintaining a separation of powers between the White House and our elected representatives in Congress.
And that should be a welcome development for anyone interested in limiting the authoritarian impulses of would-be executive branch strongmen — even if the policy outcome in this particular case isn’t to one’s liking.
Michael Schaus is a communications and branding expert based in Las Vegas, Nevada, and founder of Schaus Creative LLC — an agency dedicated to helping organizations, businesses and activists tell their story 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 the director of communications for a public policy think tank. Follow him at SchausCreative.com or on Twitter at @schausmichael.
