Scope of DOJ authority?

[CLP]

Feel free to move this if it doesn't belong here.

I just read this article on Fox about how the POTUS is directing the DOJ to ban bump stocks by changing the definition of a machine gun.

This has already been mentioned by the administration isn't anything new, but how the ban was proposed raised an eyebrow. They apparently intend to change the definition of a machine gun to include bump stocks and likely other devices like binary triggers.

But is the definition of a MG something the DOJ can just arbitrarily change on their own or at the direction of the president? It seems like a cheap stunt vs. submitting a bill through the Congress.
The thing that concerns me is how such changes in various definitions to firearms and related accessories might be made in the future to enact gun control legislation without actually having to pass gun control legislation.

 

[gc70]

Federal regulations must be based on federal law. Laws are often general in their use of terms and regulations are written to clarify what the law says.

For example, 18 USC 922(d)(4) lists a prohibited person as someone who has been "adjudicated as a mental defective." But exactly what does that term mean?

The DOJ/ATF provided a more specific definition of "adjudicated as a mental defective" in 27 CRF 478.11(a):

A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.

In federal law, a "machinegun" is defined in 26 USC 5845(b):

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

To the extent that some part of the definition of a "machinegun" in federal law is unclear, the DOJ/ATF could propose and issue a regulation to clarify the meaning already in the law. But, the DOJ/ATF cannot change what is in the law; only Congress can change the law.

 

[RETG]

Good example is Obama care. The 2200 page bill was past into law then presented to heath and human services to be translated into federal code. Congress will past gun laws and federal agencies will interpret and produced federal code.

 

[Mike OTDP]

This will go to the courts. As mentioned above, "machine gun" is a term defined by Federal law. Bump stocks don't meet that definition, and ATF has issued letters to that effect several times. Congress can amend the law, but retroactive administrative changes? Not going to play.

 

[CLP]

Bump stocks don't meet that definition, and ATF has issued letters to that effect several times. Congress can amend the law, but retroactive administrative changes...

This is my point. My understanding was if they wanted to change the definition of a machine gun it needed to be done legislatively. The path the current administration (and I know anything they say should be taken with a generous grain of salt) is saying they intend to take is for the DOJ to simply change the definition of a machine gun to include bump stocks and similar items. If it's so simple then I'm surprised the prior administration didn't make this attempt. If it works, then what else might be "redefined" in the future to further enact gun control without having to go through Congress?

 

[barnbwt]

1. They obviously don't care about DOJs mandate, since "bump stocks are gone" regardless
2. They don't even care what we have to say about it. Trump basically said the "mandated comment period" was just a formality (that 'due process' thing again) before passing a law by himself.
3. Supreme Court won't rule in our favor. Their refusal to hear anything resembling a gun case means they don't have the votes (and can allow lower anti-gun rulings to stand without having to ring the bell for real, and dealing with the consequences of that)
3a. Even if we get a favorable ruling somehow, states & cities will simply ignore it like they do Heller.

 

[Frank Ettin]

Good example is Obama care. The 2200 page bill was past into law then presented to heath and human services to be translated into federal code. Congress will past gun laws and federal agencies will interpret and produced federal code.

How did you come up with that? It is, in fact, not accurate.

Congress passes a bill which enacts and/or amends one of more statutes (when the bill is signed by the President). A statute is assigned a number and assigned a place in one of the 54 Titles of the United States Code. So, for example, a particular statute defining certain acts to be unlawful (under the Gun Control Act of 1968) is codified as Section 922 of Title 18 of the United States Code (stated in short form as 18 USC 922). That is all the work of Congress.

Sometimes Congress may by statute authorize a regulatory agency to adopt regulations which will have the force of law and help to implement one or more statutes. Such regulations are adopted through a formal process as set out in the Administrative Procedures Act (specifically 5 USC 553). When properly adopted a regulation is assigned one or more section numbers and codified in one of the 50 Titles of the Code of Federal Regulations.

A regulation must be within the scope of the authority conferred on the regulatory agency by statute and consistent with the statute(s) it implements. Whether ATF can actually ban bump stocks by regulation remains to be seen.

 

[gc70]

This is my point. My understanding was if they wanted to change the definition of a machine gun it needed to be done legislatively. The path the current administration (and I know anything they say should be taken with a generous grain of salt) is saying they intend to take is for the DOJ to simply change the definition of a machine gun to include bump stocks and similar items. If it's so simple then I'm surprised the prior administration didn't make this attempt. If it works, then what else might be "redefined" in the future to further enact gun control without having to go through Congress?

Read the Presidential Memorandum on bump stocks. Nowhere does it say to simply change the definition of a machine gun. What it does say is:

Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received (on the Advanced Notice of Proposed Rulemaking published 12/26/2017), and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.

Maybe the DOJ will find some way under the existing law to ban some devices or maybe not. As the memorandum pointed out, others had already tried and failed.

Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess ...

Did I mention that having this regulatory review in process helped keep Congress from considering adopting a law that would simply ban bump stocks?

 

[danez71]

From the article in the OP, they are not changing the definition of a machine gun at all. (ETA) What they appear to be doing is reinterpreting 'single pull of the trigger' to include devices that increase the rate of the trigger pull to full auto type rates.

Hand cranks on the trigger come to mind as well.

On Friday, Sessions announced that bump stocks fall within the definition of “machine gun” under federal law, as the devices allow a semiautomatic firearms to achieve a continuous firing cycle with the single pull of the trigger

 

[gc70]

From the text of the proposed rule:

27 CRF 478.11 Meaning of Terms
Machine gun.
* * * For purposes of this definition, the term "automatically" as it modifies "shoots, is designed to shoot, or can be readily restored to shoot," means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and "single function of the trigger" means a single pull of the trigger. The term "machine gun" includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

The discussion conveniently says that bump firing is not a problem.

The relevant statutory question is whether a particular device causes a firearm to "shoot . . .automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. 5845(b). Bump firing and other techniques for increasing the rate of fire do not satisfy this definition because they do not produce an automatic firing sequence with a single pull of the trigger. Instead, bump firing with an assistive device requires the shooter to exert pressure with the trigger finger to re-engage the trigger for each round fired. The bump-stock-type devices described above, however, satisfy the definition.

 

[plinky]

The relevant statutory question is whether a particular device causes a firearm to "shoot . . .automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. 5845(b).

The ATF has already subtly changed this clear definition which is used in the NFA and GCA when they denied spring-loaded bumpstocks. It really needs a legislative remedy instead of piling more patches on it. These patches are not filling loopholes but obscuring the codified definition. The ATF may be the right party to advise Congress on such legislation. They know the technicalities. IMO though, we are talking about changing US Code rather than facilitating or clarifying the existing words.