State action could effectively nullify any federal ban on so-called “bump-stocks” by creating “sanctuary states” for firearms and firearm accessories.
Last month, Pres. Trump released a memo directing the U.S. Department of Justice to “propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.”
In a very Obamaesque move, Trump wants to circumvent Congress and effectively create new law out of thin air.
Bump stocks harness the recoil of semi-automatic rifles to increase their rate of fire. The mechanism isn’t complicated. In fact, you can achieve the same effect using the belt loop on a sturdy pair of jeans.
Under the Obama administration, the ATF concluded that a bump stock was not illegal under the (unconstitutional) National Firearms Act because it doesn’t mechanically turn a weapon into a machine gun.
“The classification of these devices depends on whether they mechanically alter the function of the firearm to fire fully automatic,” Jill Snyder, a special agent in charge at the ATF, said at the time. “Bump-fire stocks, while simulating automatic fire, do not actually alter the firearm to fire automatically, making them legal under current federal law.”
That being the case, Congress would have to pass an (unconstitutional) law specifically banning bump stocks in order to initiate a federal ban on the devices.
But in modern America, Congress no longer needs to legislate. The president simply creates new laws out of thin air at his whim. As Obama once said, presidents have “a pen and a phone.”
No matter what you might think about bump stocks, the federal government has no constitutional authority to ban the devices – no more than it has the authority to ban possession of a plant. And just like states have effectively nullified unconstitutional federal marijuana prohibition, they can just as easily undermine a bump stock ban. States simply have to follow James Madison’s blueprint and “refuse to cooperate with officers of the union.” In other words, states can render a bump stock ban ineffective by refusing to help enforce it.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
In effect, states can turn themselves “sanctuary states” for guns and effectively stop federal gun control. Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
To quote TAC executive director Michael Boldin, “Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal gun control, states can help bring these unconstitutional act to their much-needed end.”
Some people will argue that states can’t do this. But this strategy rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
It seems a lot of Second Amendment advocates fell asleep at the wheel when Pres. Trump took office. They need to wake up. There is growing momentum at the federal level for increased (unconstitutional) gun control. The Republican president is leading the charge. There isn’t much people can do to stop momentum in D.C. once it gets rolling. But state action can stop D.C.’s actions in their tracks.