By Dave Kopel
The American Guardian, October 1998. More by Kopel on BATF.
Who makes America's gun laws? If you read a civics textbook, you might answer "Congress." And that's certainly the way the Constitution intended things. The very first operative sentence of the Constitution declares "All legislative Powers herein granted shall be vested in a Congress of the United States..." But today, many gun laws are created by part of the executive branch of government--the Bureau of Alcohol, Tobacco and Firearms.
How can it be that an executive bureau, which is supposed to enforce the laws, is now making the laws? The answer to that question reveals not just a problem for gun owners, but a cancerous abuse of power that threatens the entire Constitution.
Let's take a look at some of the ways that BATF (like many other federal agencies) exercises power which Constitutionally belongs only to Congress.
Congress has enacted laws requiring firearms dealers to obtain a federal license and also a law restricting the possession of handguns by persons under the age of 18 in certain circumstances. When setting up the dealer licensing law, Congress authorized the BATF to receive applications and to issue licenses to dealers whose applications met the Congressional standard. When enacting the Youth Handgun Safety Act, Congress simply declared the conditions under which youth handgun possession was illegal; the only thing the executive branch (of which BATF is a part) needed to do to carry out the Act was to bring criminal prosecutions against people who violated the Act.
Nevertheless, the BATF recently promulgated a regulation requiring gun stores to post a false warning which must also be provided in writing to every customer who buys a handgun. The false warning reads as follows:
"(1) Federal law prohibits, except in certain limited circumstances, anyone under 18 years of age from knowingly possessing a handgun, or any person from transferring handgun to a person under 18." This is true.
"(2) A violation of the prohibition against transfer of a handgun to a person under the age of 18 is, under certain circumstances, punishable by up to ten years in prison. ;Technically true, but misleading. The 10-year penalty applies only if the transferor knew or had reason to know that the handgun would be used in a violent crime. Otherwise the penalty is one year or less. 18 U.S. C. 924 (a)(6).
"(3) Handguns are a leading contributor to juvenile violence and fatalities."True, but incomplete. Handguns are also a leading tool used against juvenile criminals and adult criminals. And many of the juvenile "fatalities" are 18- or 19-year-old professional criminals killed by other professional criminals or by armed victims.
"(4) Safely storing and locking handguns away from children can help ensure compliance with Federal law." ;This is a total falsehood. There is no federal gun storage law. Not locking up a handgun may be an unsafe practice in certain situations, but it is not a violation of the Youth Handgun Safety Act. The federal Act can only be violated by intentionally giving a handgun to a youth; an adult does not violate the Act if a youth, against the adult's wishes and without the adult's knowledge, obtains a handgun which has not been locked up.
One very valid objection to the new Clinton warning is that it is a lie. But even if the warning were true, the BATF has no authority to make gun stores hand out written statements about federal firearms law. While Congress could enact a law requiring gun stores to hand out certain information, Congress has yet to do so. Instead, the BATF, without any lawful authority, made a "law." (The regulation about the required posting is contained in part 178 of volume 27 of the Code of Federal Regulations.)
This is not the first time that BATF has confused itself with Congress and made up a "law" to enforce as if it were a real law created by Congress.
For example, the gun dealer licensing law created by Congress gives BATF authority to determine whether the applicant is eligible for a license.18 U.S.C. 923(a). The law does not give BATF authority to require information about the details of the business. Yet BATF, under the lawless Clinton administration, has begun demanding that applicants for new or renewal licenses provide a copy of their leases and a security plan for storage of their inventories.
Another type of problem arises when BATF, rather than creating a new law, incorrectly explains a real law, thereby making the real law seem more severe than it is. For instance, in 1996 Congress enacted a law banning gun possession by anyone who "has been convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). (The ban applies retroactively; a person's 1962 misdemeanor conviction is now a lifetime ban on gun possession.)
Congress specified that "a misdemeanor crime of domestic violence" included only a crime which "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom victim shares a child in common, by a person who is cohabiting with or has co-habited with the victim as a spouse, parent, or guardian, or by a person similarly situated to his spouse, parent or guardian of the victim." 18 U.S.C. 921(a)(33)(A).
Congress also stated that the misdemeanor conviction applies only if the defendant had a lawyer and a jury trial, or the defendant "knowingly and intelligently" waived his rights to jury trial and counsel. 18 U.S.C. 921(a)(33)(B).
A few weeks after the law's enactment, BATF sent an "Open Letter to State and Local Law Enforcement Officials" which drastically misrepresented the new statute. For example, the BATF description of the law omitted the limitation that the misdemeanor involving force must be perpetrated against a spouse, child or co-habitant. (A misdemeanor assault conviction involving a fistfight with a stranger at a hockey game would not count.)
The BATF Open Letter claimed that all simple assaults constitute use of force, though such an act can merely be defined as a non-violent touching without consent. (Such as putting one's arm on someone else's shoulder.) It also fails to inform law enforcement about the requirement that the misdemeanor conviction must have come in a trial where the defendant either had a lawyer and a jury or waived his counsel and jury rights.
If someone were ever prosecuted in federal court for violating the Congressional law, the actual language of the law (not the BATF misrepresentation) would apply. But in many situations, local law enforcement officers will just rely on the BATF letter (not knowing that the letter contradicts the true law), and the officers will confiscate guns according to the terms of the BATF letter. Most victims of the confiscation (having lost a firearm worth several hundred dollars) will not have the thousands of
dollars necessary to hire an attorney who can sue the local police department to secure the return of the improperly-confiscated gun.
While BATF sometimes exercises powers which Congress never granted, sometimes Congress does grant BATF lawmaking power. This, too, is a problem.
The federal Gun Control Act requires BATF to authorize the import of all firearms which are "generally recognized as particularly suitable for or readily adaptable to sporting purposes." 18 U.S.C. 925(d)(3).
Plainly, Congress gave BATF authority to decide whether a firearm is suitable/adaptable for sporting purposes. But what constitutes a "sporting purpose"? Plinking? The BATF said no. High-power rifle target competition? The BATF said no, at least to the extent that a "yes" answer would require BATF to permit the importation of semiautomatic rifles with a military appearance. What about a gun which is usable for elk hunting, but which is not commonly used by big game hunting guides?
These are the very questions which should have been addressed by Congress when making the law. Instead, Congress dodged the contentious issues, enacted a statute containing a mere platitude ("sporting purposes"), and then told BATF to give some content to its empty words. If Congress means to create a law that says plinking or hunting with a semiautomatic rifle is not a "sporting" use of firearms, then Congress should take the political heat and make the decision following open debate before the American public.
Not surprisingly, the BATF has interpreted the "sporting purposes" test in an inconsistent manner, depending on perceived political needs. Under the Nixon administration, the objective was to prohibit the import of small, inexpensive handguns, and so plinking was claimed not to be a sporting purpose. At the same time, the import of high-quality semiautomatic rifles and shotguns, as well as large semiautomatic handguns, was allowed.
In the Bush administration, the BATF--acting at the request of "Drug Czar" William Bennett (who later admitted he knew almost nothing about guns)--suddenly decided that long guns which had legally been imported for 20 years had suddenly become non-sporting. In 1989 the BATF wrote new regulations declaring that the presence of certain features on a long gun (such as a folding stock or pistol grip) somehow made the gun unsuitable for sports.
Firearms importers complied with this new interpretation of the same old law and began importing "sporterized" versions of the firearms, minus the offending pistol grips, bayonet lugs and so forth. And then, under the Clinton Administration, the BATF in 1997 decided that these very guns which been designed to comply with a BATF's latest sporting purposes test had become non-sporting.
Although BATF lawmaking is a particular problem for gun-owners, the problem of executive branch lawmaking is no worse at BATF than it is at most other executive branch agencies. Indeed, the Environmental Protection Agency and the Food and Drug Administration are much more aggressive than BATF about making laws.
The result of Congress allowing executive branch agencies to exercise the legislative power to make law is to demolish our constitutional system of lawmaking. Under the Constitution, it is supposed to be hard to make new laws. The proposed law must be passed by the House of Representatives, by the Senate, and then signed by the president (or re-passed by two-thirds of each house of Congress over the President's veto).
By making it difficult to impose new laws, the Founders created a system in which liberty would be the norm and restraint would be the exception. But lawmaking by executive agencies inverts the whole process; a single bureaucrat, with the wave of his pen, creates new laws. Then, victims of the new restriction carry the difficult burden of trying to get Congress to pass a new law to remove the infringement on liberty.
An additional liberty protection implicit in the Constitution's granting of lawmaking power to Congress alone is that there are a finite number of hours in the day. If only Congress can make the laws, then we will have only as many laws as Congress has the time to pass. Delegation, though, enables hundreds of executive branch agencies to make laws, even while Congress is adjourned.
Foisting the hard choices off onto federal agencies undermines democracy. A person who doesn't like a Congressional vote can vote against the Congressperson in the next election, but no-one can vote against a bureaucrat.
For most of our nation's history, Congress did not attempt to give its lawmaking power to the executive branch. In the few instances when Congress did, the Supreme Court said "no." For example, in 1935 a unanimous Supreme Court struck down the National
Industrial Recovery Act, which delegated to President Roosevelt and his National Recovery Administration the authority to regulate the entire economy. (Schecter Poultry Corp. v. United States,295 U.S. 495.)
But a few years later, the court, under intense political pressure from the Roosevelt administration, abandoned its constitutional duty of enforcing the separation of powers between the legislative and executive branches. As a result, the volume of laws unconstitutionally made by the executive branch (which are contained in the Code of Federal Regulations) is roughly four times larger than the volume of laws constitutionally created by Congress (contained in the United States Code).
Can anything be done? Senator Sam Brownback (R-Kansas) has introduced S. 433, which declares that no new regulation will go into effect unless Congress votes to enact the regulation as law. Twelve Senators have cosponsored the bill. In the House, Rep. J.D. Hayworth's (R-Ariz.) H.R. 1036 contains identical language, and has attracted 67 cosponsors. The prospects of S. 433 or H.R. 1036 becoming law depend mostly on how much grassroots support Congress people encounter in favor of restoring Congress to its proper place as the sole lawmaking branch under our Constitution.
As the Framers of the Constitution well understood, no part of it stands alone. The longer that Article I of the Constitution is subverted by the usurpation of the lawmaking function, the greater the risk that one day the illegal power will be used to destroy, and not just infringe, the right to keep and bear arms.
For further reading: The best book on the delegation disaster is by New York Law School professor David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (New Haven: Yale Univ. Pr., 1993).