Democrats tried to force a voice vote on the bill to ban bump stocks, a tactic often used by both parties when they know that they don’t have the votes to pass legislation but want to bring an issue to the Senate floor. The bill, sponsored by Sens. Martin Heinrich, D-N.M., and Susan Collins, R-Maine, would ban the sale of the devices, similar to the rule issued by President Donald Trump’s administration after a gunman in Las Vegas attacked a country music festival in 2017 with semiautomatic rifles equipped with the accessories.
The Supreme Court ruling was not that these devices enjoy Second Amendment protections, but that the ATF rule process effectively stole legislative authority from Congress. If Congress did pass such a law, it would probably survive review: as I wrote at the time:
They're not good technology, making the rifle less accurate and unstable. I don't think it meets any the tests SCOTUS has set up for this: it's not a weapon that serves a viable military use suitable for militia service (US v. Miller), nor is it in common use for lawful purposes (it's uncommon), nor is it part of any sort of historical or traditional understanding of the right to bear arms (it's a gimmick mostly used to play on the range).
However, there's good reason to oppose the ratchet effect of increasingly banning things until Americans are less free than once. I could accept adding these devices to the list of those things controlled by the National Firearms Act, but in return we should get something back that we'd rather have.
I think the obvious choice for a trade is the suppressor, often called the "silencer." The suppressor improves the function and safety of the weapon. Because they lengthen the barrel, they improve both accuracy and power. Because they reduce the noise, they reduce the risks of hearing loss associated with practice.
They should be protected under the Second Amendment under two of the three tests. They have a clear militia function: the US military uses them, and so you can see a clear use for militia in similar roles. That satisfies Miller. They are in common use for lawful purposes -- they are so valuable that many people go through the trouble of obtaining one through the National Firearms Act regulatory structure. The only test not clearly satisfied is the Bruen test, because we do have about a century of historic tradition of them being regulated by the state. However, if Congress passed a law changing that, there's no reason they shouldn't.
Although I oppose the National Firearms Act in principle, legislation is generally an act of compromise. Here's one that seems reasonable to me: swap suppressor/silencers for bump stocks in an alteration of the National Firearms Act. That would not ban bump stocks, but make them available only under stricter regulations and with high taxes; it would, in return, allow suppressors to be sold more freely than they are currently. We would not be participating in the ratchet effect, but trading something better for something worse.
As a compromise of the sort that Congress used to do when it was a more serious organization, that makes sense to me.
2 comments:
I disagree with your compromise (or any other on this subject). (There's a surprise.)
You stated the reason for my disagreement, yourself: [T]here's good reason to oppose the ratchet effect of increasingly banning things until Americans are less free than once.
Until there is a clearly identified limiting principle that binds the compromise offerer, the ratcheting will only continue.
And: [S]wap suppressor/silencers for bump stocks in an alteration of the National Firearms Act. That would not ban bump stocks, but make them available only under stricter regulations and with high taxes....
Too often, the costs of [licensing], including taxes, have been used as barriers to getting the relevant "permission" to possess. Thus, no swaps, either, absent a clearly identified limiting principle; otherwise the ratcheting, which is what constant and repeated trading--now demanded trades--amounts to, will continue. The swaps agreeable to gun controllers increasingly will grant less value for what's being swapped into regulation.
I object, in principle, to most any government regulation of our 2A rights, including the Supreme Court's Miller, common use, and Bruen tests. Devices suitable for militia service certainly should be permissible (also in my more general lesser regulatory environment), but that's not the only type of firearm a private citizen might choose to keep and bear. Something not militia/militarily suitable might be interesting to have: bump stocks, for example, or plastic 3D-printed (and so not durable) firearms, other devices I don't think of offhand. The common use requirement blocks a priori possession of newly developed firearms--they can't be in common use, and under this limit never will be. The common use limit also automatically creates the Bruen limit: there never will be any history buildup for the newly innovated.
We have enough regulatory restrictions on firearm possession and bearing, and there's no limiting principle there, either--see the Red Flag laws that, by design, deny the owner any form of due process, slow walk return of his possessions in those rare occasions when he's successful in proving his own innocence, and deny other owners their rights and their possessions if they are in the same house.
What the AP chose to omit from their article is that, had the voice vote gone through, it would have taken a single Senator (maybe a second to second the call) to call the roll and thereby force all of them on the record with a recorded vote. That may have sustained the voice vote, but maybe not, too.
Aside from that, the Progressive-Democrat Senator from New Mexico, Martin Heinrich, laid bare the basic governmental overreach that's typical of efforts to regulate firearms: Bump stocks serve no legitimate purpose. There's nothing in the 2A, or anywhere else in our Constitution, that gives government the authority to dictate to us what our purposes are in the keeping and bearing.
So far, the only limiting principle that gun controllers have is one they're unwilling to articulate: completely regulate them all, then confiscate them.
Neither bump stocks nor "silencers" nor any other aspect of firearms should be regulated. Full stop.
Eric Hines
I get that compromise is not on anyone’s mind; and the other side is not offering one anyway. But for now we can’t repeal the NFA, nor have it declared unconstitutional, nor are we quite ready to disband the Republic. I feel like we’d have traded up, and until we really are ready to rip down the Republic it might still be wise to seek the occasional opportunity to improve things with lesser tools.
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