Two memoranda appear on the White House website dated yesterday. One has received quite a bit of national news coverage, while the other is yet another routine delegation of authority. I’ll only comment on the somewhat controversial one.
Most media reports of the “bump stock” memorandum are overstating the result of the action. First, it is not an executive order, so is not a directive. Second, it does not ban bump stocks. It simply urges the Department of Justice to move expeditiously to finish the process begun late last year of addressing the legality of bump stocks under the legal definition of “machineguns”.
On December 26, 2017 in the Federal Register a Notice of Proposed Rule Making was published initiating the standard legal process for creating or changing a rule based on legislation. Note, it is not a proposed rule being issued for comment. It is notice of intent to create a proposed rule. (A notice of a plan to issue a proposed rule!) Talk about bureaucracy at its most cumbersome. I was well aware of the deliberative process for federal rule making that includes a public comment period on any new or modification of a rule, but did not know of this step.
At this point I’m too lazy to check into actual steps used in creating other rules to see if this is a convenient use of bureaucracy to slow down action on something this Justice Department does not really want to do in hopes it will eventually lose momentum enough to just go away, or if it is indeed part of the legal requirement for rule making. Either way, this presidential memorandum seems redundant at best and more likely just a publicity stunt, unless the Justice Department was going to just never get around to completing the proposed rule at all. I suppose given this Attorney General, one cannot rule out that possibility.
The closest the memorandum comes to any real presidential action, such as even endorsing a conclusion to make bump stocks illegal, is this statement – “…to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” Proposing for notice is a long ways from actual banning or even a rule to effectively ban bump stocks by an expanded definition.
A careful reading of this memorandum leads to at least two possible conclusions of intent. One, the language appears to imply the president is eager to get the rule implemented to ban bump stocks. The other conclusion is, the lack of clarity in its wording that requires one to “read in implications” means this is just political cover for some later date having the rule development process conclude that bump stocks cannot be included in the legal definition of machine gun and therefore cannot be legally banned. At that point, POTUS 45 can then point to this memorandum as his “doing the best he could”.
I find even the timing of this memorandum to be suspicious. It appears to me to be a political act to make it look like the president is “doing something” about the recent school shooting in Florida that remains in the news daily. As far as I know, a bump stock was not used in the Florida shooting. One was used in the Las Vegas shooting last October, and that is when the whole idea of banning them began to be seriously considered publicly. So why this now?
If POTUS 45 was really interested in moving this process along, he would have issued this memorandum much earlier. The comment period following the December notice (referred to above) ended almost a month ago (January 25, 2018). If this action was a true priority, it would have been issued in late January. Even better, he would have submitted draft legislation to Congress to fix the law. That would make clear that change in the law is the best solution, because then it would not be left to the whim, ideology or priorities of future administrations who could make changes to the rules.
Ultimately, the practical reality is nothing in this order is actually accomplishing anything. Any future action on this particular issue is completely in the hands of the Justice Department. They will decide what the proposed rule will be. They will decide the timing of when to open the comment period for that proposed rule, and finally, they will decide on the eventual content of the final rule.
I suspect if any rule eventually is adopted, it will only be because banning bump stocks is purportedly supported by the NRA. I’m more skeptical about the most conservative members of Congress supporting this, as I think they remain opposed to anything that even remotely resembles gun control. If legislators really saw this as a priority, legislation would have passed already.
In the meantime I will wait cynically, and will be surprised if any new rule is in place before the 2018 elections.
Official Titles and Links:
Memoranda dated February 20, 2018