Today, reports indicate that the Trump Administration has moved to ban so-called “bump stocks” in light of the Las Vegas shooting that occurred in 2017.
Regardless of where one stands on the Second Amendment or how one feels specifically about such “bump stocks,” one cannot truthfully claim to support the Constitution or, indeed, even the rule of law, while also supporting unilateral executive actions such as this.
The following are (at least) three reasons this fiat decree is unconstitutional, even without consideration of the Second Amendment at all:
- Executive action versus legislative action.
The United States Constitution delegates lawmaking authority to the legislative, and only the legislative, under Article I:
In exactly zero locations in the Constitution is this activity allowed to be delegated or otherwise assumed by the Executive. Like it or not, it is simply illegal for the president, or any subordinate executive official, department, or bureau, to unilaterally make law in the United States of America.
- Real property confiscation (part 1).
The Constitution allows for exactly two circumstances in which real property can be legally confiscated from its citizens. The first of these requires due process, as outlined in the Fifth Amendment and amplified and incorporated in the Fourteenth:
…nor be deprived of life, liberty, or property, without due process of law;…
…nor shall any State deprive any person of life, liberty, or property, without due process of law;
Clearly, an executive declaration is not a process of law, given the lack of constitutional lawmaking authority. Nor can a unilateral declaration satisfy due process, particularly as Supreme Court precedent maintains, consisting holistically of procedural requirements (i.e., indictment, informing of charges, speedy proceedings, trial by a jury of one’s peers, a right to know and challenge the charges/evidence/witnesses presented against, etc.), substantive protections, vagueness protections, and incorporation of the Bill of Rights.
This action clearly violates the first due process tenet, at a minimum, and arguably violates the second as well. If the given activity violates even one provision, however, the action fundamentally and necessarily fails to comply with the requisite due process requirements and is therefore illegal under the Supreme Law of the Land.
- Real property confiscation (part 2).
The second property confiscation circumstance allowed by the Constitution falls under the provision of Eminent Domain (also under the Fifth Amendment):
…nor shall private property be taken for public use, without just compensation.
Current reports indicate the Trump Administration is not making any sort of compensation to American citizens in exchange for this confiscation/mandated destruction. And even if the administration were making such compensations (or were to make them later), the “ban” does not satisfy the first provision of the clause either. Outright destroying and/or banning private property simply does not meet the Eminent Domain requirement for public use, no matter how one stretches the mind to rationalize it so. Thus, this action is unconstitutional – and by definition, illegal – under this provision as well.
No matter how you slice it, this action is unconstitutional, even before considering Second Amendment infringements or Tenth Amendment jurisdiction. But then, I do not know why anyone would expect a Republican to be any less overreaching than their Democrat “opposition.”