I had the TV on Fox News to keep my dog company, and was downstairs from my office briefly to get a drink when I heard a clip of Joe Biden saying, “The Supreme Court has never been more out of step.”
“Out of step?” What’s that supposed to mean? A President being stupid is bad, but a President who makes the public stupider is far worse. It isn’t the Supreme Court’s function to be “in step” with the times, polls, public opinion, fads or zeitgeist. It’s job is to interpret the law and the Constitution. Because the public’s understanding of the law is about at the same level as my dog’s understanding of “Two Gentlemen of Verona,” their opinion regarding what the Supreme Court should do is literally useless and of no value whatsoever.
The issue at hand was the SCOTUS decision on the bump stock ban discussed here. That opinion was only nominally about bump stocks: what it involved really was statutory construction and the limits of agencies trying to do end-arounds when laws don’t allow them to do what they would like to do.
Of course, the public doesn’t care about such minute details as what the law permits, nor does it understand that it is the job of legislatures to solve problems, not the courts. President Biden should care about the law and know what the Court’s role is. You know what Supreme Court was “in step?? The Taney Court that handed down the Dred Scott decision. Another time the Supreme Court was “in step” was the one that decided Korematsu v. United States, which concluded that the President could have U.S. citizens locked up based on their ancestry and race. The public really liked that decision, because they were furious at Japan for bombing Pearl Harbor. Roe v. Wade, decided at the height of free sex, “love the one you’re with” and “if it feels good, do it” was similarly in step, though it was wretched law. I wonder how many millions of people lost a chance at life because that Courts was “in step,” and what they, and their unborn children, might have accomplished? Well, that way madness lies. The point is being “in step” is not the proper concern of the Supreme Court, and it’s not that great anyway.
Then the Fox moderator brought on some conservative, ex-Marine activist who wants bump stocks banned. He began by vigorously agreeing that the U.S. Supreme Court needed to get “in step” with public opinion on the issue. He quoted polls showing how a majority wants to see the devices banned. Irrelevant. He recounted the number of victims the Las Vegas shooter mowed down using a bump stock. Irrelevant. He told viewers that without a ban, anyone in the country was now empowered to “turn a semi-automatic rifle into a machinegun.” Irrelevant, and not the Justices’ problem.
Naturally, the Fox News host never explained why this rant was over-heated hooey, and that if the public wants a law passed, it needs to elect members of Congress who will pass it and not rely on edicts from the Executive Branch that amend and bend laws or courts that legislate from the bench.
Ethics Alarms 
The bump stock issue is just the top of the iceberg when it comes to BATF overreach. A Congress truly concerned with defending the Constitution and our liberties would have reined in the agency long ago. Trump didn’t do it -the bump stock ban was his handiwork in a “Do something!” response to the Las Vegas shooting. Trump didn’t even overturn his predecessors’ executive orders that created extra-legislative gun control. I figured the bump stock ban would overturned eventually and thought it would be sooner than it was.
I have never personally owned a bump stock or an actual fully automatic weapon, although I was issued some full autos during my law enforcement service, including an M16 and M14. I own semi-auto versions of both those weapons.
I really can’t envision a scenario that would make me want a full auto weapon; I can already pull the triggers of those semi-auto weapons faster than I can accurately acquire and engage targets. Congress will eventually have to learn that every federal firearms law is an unconstitutional infringement in violation of the Second Amendment.
I’m maybe being too kind, but I got the impression that Trump thought he was doing something his constituents wanted when he told the ATF to make law and ban bumpstocks. The NRA, and others, had been hinting that they could be willing to legislatively trade, and give up bumpstocks in exchange for removing suppressors as NFA items (something that should be done, anyway, in spite of their fictionalized performance in TV and movies). Essentially, they would give up something of little overall value, and get back a thing many people wanted. Lots of them are being sold these days, anyway, as the $200 tax isn’t the deterrent it was nearly 100 years ago. He screwed up and didn’t do that trade, though.
Anyone who thinks using an inherently accuracy-destabilizing bumpstock makes a firearm more dangerous than than its semi-auto base rifle doesn’t really know how those things works in real life.
Funny things, short barreled rifles and shotguns have been legal in Canada until just recently, and suppressors are required for hunting in some European countries.
No one ever mentions that the Vegas Shooter was wealthy enough to legally buy full-auto weapons if he had so desired. He was also a pilot, and could have crashed a plane into the crowd. Not being able to acquire a bumpstock would not have affected his behavior.
None of the Barn Door Fallacy regulations and laws that get proposed after one of these tragedies are likely to have stopped the incident in question.
Don’t delve too deeply into the Las Vegas shooting. None of the investigation makes any sense. The official narrative makes no sense. The part where the FBI went through the house, postponed collecting evidence until ‘the next day’ only for the house to burn down during the night is especially questionable. He seems to have been laundering money through the Vegas casinos, but it wasn’t revealed who he was doing this for. This was another mass shooting that happened just when the gun controllers needed one.
Whenever the NRA asks me to ‘support them’, I tell the NRA that I will support them the way they supported us during the bump stock ban. They always hang up the phone at that point.
“It isn’t the Supreme Court’s function to be “in step” with the times, polls, public opinion, fads or zeitgeist. Its job is to interpret the law and the Constitution.” Helluva point.
“Of course, the public doesn’t care about such minute details as what the law permits, nor does it understand that it is the job of legislatures to solve problems, not the courts.”
In addition to the public, I’d include the American Bar Association, Chuck Schumer, the Squad, Liz Warren, Bernie Sanders, the Congressional Black Caucus, Nancy Pelosi, the media, most legal “pundits,” and most members of Congress other than a few Republicans who are also competent lawyers, or at least graduates of law schools.
Has anyone ever suggested that the Supreme Court has become either the adult in the room or the whipping boy. The public has come to believe that the SCOTUS is the final arbiter on social issues. It has become this BECAUSE our democratically elected representatives are usually unwilling to take a stand on issues that may cost them votes so they let the unelected bureaucrats in the agencies make all these decisions that affect society and if challenged they force the Supremes sort it out.
Everyone runs to the court to have them make a decision on a matter that should be easily dealt with in regular order but then blames the court when their decision doesn’t go their way; much like a child does. Every regulation promulgated by an agency should have to have a rationale as to the agency’s Constitutional basis for the regulation upfront so that during the public comment period people can challenge the Constitutionality of the proposed regulation and not the relative merits.
It is no wonder their was no pushback by the media because they either like the system as it is because it promotes controversy which is their stock and trade, or they are civically ignorant and incapable of pushing back when their authority on guns – a Marine whose opinions do not factor in actual understanding of the issue – reinforces the idea that the court has a duty to be in step with societal views.
If these are society’s views then it would not be hard to fix the law legislatively.
I should add that the agencies could or should be advisory to Congress for new rules and executory for existing ones. Unelected bodies should not be able to make rules that are effectively laws.
An outstanding comment, Chris. Thanks!!
The reason this is a big deal on firearms is because the arm brace ban is in the courts. This is bigger and even dumber than the bump stock ban. By declaring arm braces ‘stocks’, it turns the ‘pistols’ into ‘short-barreled rifles’. Short-barreled rifles are regulated much the same as machine guns by the NFA, you have to pass an ‘extra special’ background check, pay a $200 tax stamp, be issued a title for the short barreled rifle, you have to carry the paperwork with you, and the firearm can only be used by you or with your direct supervision. I don’t think you need prior written permission of the ATF to take it to a different state, however, as you do with a machine gun. The arm brace ban is especially onerous because it is retroactive. The ATF rules by issuing nonbinding letters. Two manufacturers can send in identical products and one can be approved while another is ruled illegal. There are no firm guidelines. The letters, much like IRS advice, are not binding. The ATF can reverse them at any time. In this case, the ATF has determined that all the letters allowing the braces were ‘in error’, so as far as the ATF is concerned, the arm braces ARE AND ALWAYS HAVE BEEN ILLEGAL. The millions of people who own them can’t just destroy them, they have been committing a felony for perhaps a decade because the ATF is allowed to create an alternate legal timeline. The ATF has told people that their only option is to surrender the brace, take a picture of it confirming their commission of a felony, and send the evidence of their criminality to the ATF. The ATF will then grant ‘amnesty’ to all the people they process in a 3 moth period of time (no guarantee on how many people they will process). Everyone else can be prosecuted with the evidence they themselves sent the ATF.
Now, why are short-barreled rifles so highly regulated? In the original NFA, ALL handguns were treated like machine guns. That’s right, they wanted to effectively ban all handguns. A ‘loophole’ of sorts would be to cut off the stock and cut down the barrel of a rifle to make it smaller, so the barrel length of shotguns and rifles was restricted to 18″ or longer. This measure was a loophole to prevent ‘homemade handguns. Well, they couldn’t get the votes to ban handguns, so they took that out, making the barrel restrictions irrelevant, but they left those provisions in. So, the 10 year felony for illegal sale or possession of a short barreled rifle or shotgun is just a mala prohibita crime. I feel that any government lawyer who states in court that this is a serious offense warranting serious penalties should be convicted of perjury. My reasoning is that the US government once sold 250,000 M1 rifles with a barrel length under 18″ without NFA paperwork. That’s right, they committed 250,000 counts of a felony firearms crime. What happened? Was this a serious offense that warranted serious action? Was a single person punished? Was a single person fined? They did consider charging all 250,000 people who they sold the rifles to with felonies, but instead they just changed the NFA to make a short barreled rifle 16″ or shorter, while keeping the shotgun rule 18″. When the government does it, it isn’t a big deal. If you do it, they will sentence you to an average of 3 years in federal prison. If you saw off a shotgun from 32 inches to 20 inches in a government sting operation aimed at blackmailing you into being a federal informant…well…it isn’t really illegal, so they they kill your pregnant wife and your teenage son.
This also has relevance to the new ATF rule that says that anyone who sells a firearm has to have an FFL because even selling one now is considered ‘in the business of buying and selling firearms’. The previous rule was that the firearms sales had to be a majority of your income. They have retroactively instituted this law, much like the arm brace ban. They raided the head of the Clinton Airport in Little Rock because they think he sold 5 or 6 guns. They got a search warrant for his house and 10 cars of agents in tactical gear gathered for the raid. Then they found out he wasn’t home, so they cancelled and came back the next week. They executed a ‘no knock’ search warrant on his home in the early morning darkness after cutting the power to his house and jamming all cellphone signals in the area (so no security system footage could be uploaded offsite). The officers either had no bodycams or had tape over the cameras and they shot the man in the head after they claim that he had a gun. You will just have to take their word for it.
This Supreme Court ruling is important because it challenges the very foundations of the administrative state.
Which is why the totalitarian Left is so furious.
To add to the absurdity of the “brace” issue, the ATF has had to concede (at least for now) that if someone owns an AR-type pistol, a brace, and an AR-type rifle, they are only criminals if/when the brace is on the pistol…they can’t even be charges with constructive intent. The ATF put themselves into a logic trap: If the brace is a buttstock, then it can be used on a rifle, and if someone owns a rifle, the brace is just a spare rifle stock in their possession. Obviously, no one with future criminal intent is deterred. Since the braces were never registered when sold (and even available as cheap, almost-indistinguishable, Chinese knock-offs sold as “paint-ball accessories”, from AliExpress), they have no idea how many are owned or by whom.
When they first offered their new regulations on braces, their proposed rules were vague and subjective, and with no convincing argument as to how they would deter criminal behavior or otherwise improve safety for the public. The public reply period for their proposed changes produced overwhelmingly negative responses, but of course, they proceeded as they wished. They did offer a grace period during which they waved the registration tax fee (was it legal for them to do that without legislation I wonder?) for registering a brace. I think most owners just waited it out (I did). Several courts have already ruled against them, their rulings covering various states and members of the organizations that filed the suits.
Thankfully the current Supremes, Gorsuch in particular, seem to have little use for agency law-making, flip-flops in policy, and Chevron deference overreach.
I appreciate the explanation of the history of these rules – thanks.
The thing about conspiracy theories is sometimes there really is a conspiracy. Between the ATF raid, the las vegas shootings, Epstein’s supposed suicide, and similar events, various ideas of a cabal of murderous thugs being in control of our government behind the scenes seems to be plausible. Occam’s Razor and Hanlon’s Razor are just guidelines, and can both be wrong. I sometimes suspect some of the idiotic pundits out there are a form of controlled opposition to weaponize cognitive dissonance. “Hey, this guy is a flat earther, therefore his belief that the government is corrupt is also wrong.”
Which goes back to the “ad hominem” debate that surfaced “David.” As I suspected at the time, the reason he objected to my verdict that Rush Limbaugh called Sandra Fluke a slut because of her insistence that the government should pay for birth control was not ad hominem but a mean, cheap shot assessment of her motive for supporting the policy. “David” insisted it was ad hominem, because he was determined to see Rush in the worst possible terms.