Lady Justice is Blind. Why isn’t the Court?

From Southwest Ledger

Tragedy erupted on Oct. 1, 2017, at a country music festival in Las Vegas when a lone shooter killed 60 attendees from a 32ndstory hotel window. Mainly using AR-15 style weapons with the help of a bump stock, the shooter carried out the deadliest mass shooting by a lone gunman in history.

Following the tragedy, President Donald Trump asked the Alcohol, Tabacco and Firearms Agency to reclassify bump stocks as machine gun accessories and ban them. However, a Texas gun store owner sued the federal government on the grounds that bump stocks were wrongfully classified. This past week the U.S. Supreme Court overturned the ban on grounds having nothing to do with gun control.

Here is the thing: while there is outrage over this decision – mainly because the decision looks political with a 6-3 spilt along party lines – what it actually shows is a misunderstanding of the courts and possibly the biggest mistake of the Founding Fathers with the Constitution.

First, let me be clear. I am not making any Second Amendment arguments here. I have written plenty on the Second Amendment and the Founders’ intentions. For this case, there is actually no need to bring up the Second Amendment. That is the misunderstanding. I am also not going to argue for or against gun control in any way. And neither did the court, or at least the six justices who voted against this ban. A large part of this ruling is that bump stocks do not make rifles automatic weapons.

There is a lot of hairsplitting here, but in legal cases, hairsplitting matters. While bump stocks allow rifles to shoot as fast as an automatic weapon, they do not make them “automatic.” By definition an automatic rifle will fire more than one round with a single pull of the trigger. A bump stock works with a semi-automatic weapon which shoots one projectile per pull of the trigger. However, a bump stock uses the recoil of the rifle to create the same speed as an automatic but by definition does not make the weapon “automatic.” The mechanisms are different. I understand how this can be frustrating, but there is a difference, and in law those differences matter. If people want to change the rules about what is an automatic weapon, there is a way to do that and that brings up the second and more important point.

As you read the news and listen to podcasts you are going to read and hear a lot of definitions, such as what I have done above. What you may not hear is who made these definitions. That’s simple, Congress did. It did it in 1934 with The National Firearms Act. When bump stocks first became available in the early 2000s the ATF did not consider them machine guns because they did not fit under the congressional definition, and so were not regulated. It was not until Trump asked the ATF to change their classification following the Las Vegas shooting that it changed. Here is the problem: according to the U.S. Supreme Court, the ATF does not have that authority.

As I like to do when looking at legal issues, let’s look at what the Constitution says about the ATF’s authority. Nothing. What it does say in Article I, Section 1 is “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In other words, Congress has defined what an automatic weapon is with specific wording. Neither the ATF nor the president has the right to change it. At least based off this ruling, if Congress changed the definition of “automatic” and included bump stocks then the Court would support the ban.

I understand why this is hard. The fact that the ruling is 6-3 makes it seem political, so everyone is blaming the conservative judges. Its similar to the abortion ruling by the courts that ruled states have the right to decide the legality of abortions. It was not a moral argument, but legal one. In both cases it is hard to remove one’s personal beliefs, but that is what should happen.

Lady Justice is blindfolded. She is to be blind in her ruling and must only use the law, not emotions. What is more disheartening to me is that this case was not unanimous. Three justices cared more about their own beliefs than the law. You can be for strict gun control but still see this decision as legally correct. If you are mad, be mad at Congress, not the court.

The fact that the court was split on this verdict to me shows the greatest mistake of the Founders. They believed leaders could rise above parties and self-interest. Yet time and again we have seen that is not the case. Nowhere in the Constitution do they mention parties because they hoped Americans would avoid them. They were wrong. I cannot prove this, but as a thought experiment, imagine all nine justices were polled and asked, “Can the ATF override an act of Congress?” I have to hope all nine would say no. Yet when you place before them that same question but wrapped in a polarizing, politically emotional case and you see the justices divided on party lines. They made it about gun control because especially in an election year, they play politics more than act as blind justices.

If you want gun control, don’t be mad at the justices. The Constitution does not grant them power to make laws. If you are mad, get mad at Congress. Somewhere along the way in the start of the 20th century Congress got lazy. It found it easier to allow the Executive branch to do the heavy lifting. It’s a lot easier to get elected if you never have to vote on the controversial issues. If you are mad at the court, be mad that they never stopped this sooner. For too long the courts have stood by and watched the Executive branch slowly usurp more and more power while the Legislature pretended to care. Maybe instead of going to the internet to trash the courts and tell them blood is on their hands, we should all take a refresher on American civics. Lesson One: Checks and Balances.

James Finck is a professor of history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.