Comments on proposed ban of bump stocks
John has the details. The proposed rules basically rewrite the law. If this is going to be done, it should be done legislatively. I wonder if there’s effective legal action that can be taken to challenge the law if it goes into effect.
April 3rd, 2018 at 7:47 am
The issue is not whether there would be grounds for a challenge, the issue is whether or not the courts would support/uphold such a challenge.
It is my belief that the proposed rule not only exceeds the plain language of the statue, but that the proposal to prohibit them outright and require confiscation/destruction is both ex post facto law, and a “taking” prohibited by the Fifth Amendment.
Again, the problem isn’t finding a reason to challenge the proposed rule; the issue will be whether or not it ends up in front of judges wiling to honestly apply the correct level of scrutiny to toss it, rather than playing the usual scrutiny two-step* that we tend to see in gun cases in order to justify upholding blatantly unconstitutional statutes.
* Scrutiny two step: Saying that the right level of scrutiny is at least one level lower than it is, and then apply at least one level lower than that —
Anything related to a Constitutionally-protected right should use Strict Scrutiny, yet the courts rarely claim that the RKBA deserves anything higher than “Intermediate Scrutiny,” and they tend to actually apply “Rational Basis” or lower.
April 3rd, 2018 at 8:15 am
HSR47, I’d argue that this doesn’t even pass the “rational basis” test, much less intermediate or strict scrutiny.
April 4th, 2018 at 11:00 pm
@Ravenwood: That’s my point: They find the lowest level of scrutiny that would stop them, CLAIM to apply that level of scrutiny, and then actually apply a lower level of scrutiny in order to justify upholding the government’s position.
We’ve been seeing them do it for decades, to the point where there’s enough jurisprudence for them to use as further justification.
Unless/until the SCOTUS finally starts weighing in on our side on a semi-regular basis, we won’t see an end to this trend.