By Bob Barr
No person shall be . . . deprived of . . . property, without due process of law.
— U.S. Constitution, Amend. V
No . . . ex post facto Law shall be passed.
— U.S. Constitution, Art. I, Sec. 9
Stroke of the pen, law of the land. Kinda cool.
— Paul Begala, Advisor to Former President Bill Clinton, July 5, 1998
Two bulwarks of individual liberty – that the government cannot seize a person’s property without due process of law, and that it cannot prosecute an individual for an action that was lawful when the person performed the act – are threatened by a single regulation now pending before the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a component of the United States Department of Justice.
The regulation is designed to prohibit people from possessing so-called “bump stocks,” as apparently had been used by mass murderer Stephen Paddock last October 1st in Las Vegas. While the intent of the proposed regulation may be considered laudable by many, the procedural precedent it would set should cause serious concern for anyone who supports limited and accountable government.
This regulation would establish a precedent according to which the federal government (specifically, unelected employees of the ATF) would be empowered to seize property from any individual without affording them any compensation, and rendering anyone who fails to turn in or destroy such property subject to federal criminal penalties. All this notwithstanding that the to-be-prohibited property (“bump stocks”) had been previously deemed a lawful firearm accessory by that very same agency.
That an administration which declares itself supportive of private property and Second Amendment rights, and which endorses the principle of limited government, should propose such a precedent is worrisome; concern compounded by the manner in which the Justice Department is attempting to circumvent long-standing constitutional guarantees.
Rather than going to the Congress and ask that it pass legislation making “bump stocks” illegal (and more precisely defining the term than has been done in this regulation), the administration is seeking to have the law changed by claiming it is merely “clarifying” the current definition of a “machine gun.” Thus, by regulatory fiat, a lawful semi-automatic rifle becomes an unlawful machine gun.
It is no secret that Republican and Democratic administrations alike consistently have exhibited a marked preference for acting by regulation rather than by legislation.
Government by regulation can achieve a goal far more quickly than having to find and keep allies on Capitol Hill to carry an administration’s water. Fitting the proposal into crowded congressional agendas can be difficult. Defending the language in time-consuming hearings can be risky. And having to explain the issue to voters is burdensome. Far simpler is it to draft a bureaucratese-laden proposal, publish it in the Code of Federal Regulations (which is as alien to the vast majority of voters as are the Dead Sea Scrolls), wait a month or two as the Administrative Procedures Act requires, and Presto! You have a regulation that carries the full force of law.
In this instance, and consistent with long-standing but unwritten Washington norms, ATF declares it is simply exercising power previously delegated to it by the Congress. Specifically, the Bureau claims it is doing only what the Congress authorized it to do in the National Firearms Act of 1934 and the Gun Control Act of 1968 — protect the public from the dangers of “machine guns.” Insofar as the Bureau has now realized (in the wake of the Las Vegas mass shooting) that devices it previously had determined to be lawful (bump stocks) actually constitute machine guns, well, the Bureau has no choice but to step in, “clarify” its earlier ruling, and protect the public.
All this sounds so proper and correct; except it isn’t. What the ATF is doing is undermining important guarantees against arbitrary government action, of the sort expressly prohibited in our Constitution.
Republicans currently control both houses of Congress. Many members of this majority regularly lambasted the Clinton and Obama administrations for using executive-branch powers to circumvent the legislative process. If the GOP now allows the ATF and the Justice Department to push through this regulation, it will show itself to be not only politically hypocritical but constitutionally as well.