At Volokh Conspiracy, Josh Blackman: The Federal Government's "Police Power" and the Takings Clause: Part IV. From the introduction:
Part I in this series explained that Congress does not have a general police power. Part II added that Congress can seize property pursuant to its Commerce and Necessary and Proper Clause Powers. Part III turned to 18 U.S.C. 922(o), the statute that purportedly authorized the bump stock ban.
This fourth part will analyze whether this statute is constitutional under Lopez, Morrison, and Raich.
From the core of the argument:
In short, the simple possession of a bump stock is not an "economic activity." And unlike machine guns, the transfer of those devices was entirely lawful, without any federal license, prior to 2019. Nor has Congress even hinted that "leaving home-[produced bump stocks] outside federal control would similarly affect price and market conditions." 18 U.S.C. 922(o) makes no reference to interstate commerce, at all. I don't think this statute falls within the first or second category of Lopez [channels and instrumentalities of interstate commerce]. And it is not consistent with the substantial effects test.
Thus in conclusion:
The rulemaking provides no additional findings that could connect the bump stock ban with interstate commerce or economic activity. Indeed, I don't think the agency could. Such findings must come from Congress, not the executive branch. Of course, Congress could have banned bump stocks. But President Trump preferred executive action. (I discuss this history in my amicus brief for the Cato Institute.)
Going forward, it is unlikely that any court would revisit the ban of 922(o) as applied to machine guns, writ large. There have been countless prosecutions under this statute. But the challenge to the novel bump stock ban is ripe. 922(o) very well may be unconstitutional, as applied to bump stocks.
Note: In Part I of the series, Professor Blackman describes the bump stock litigation:
Last week, Judge Starr (NDTX) ruled that the federal government lacks a general "police power" to "take" bump stocks without providing "just compensation." He gave the defendants another opportunity to "explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation." Is the source the Commerce and Necessary and Proper Clauses? Judge Starr wrote, "If the federal government opts for the commerce power, it should discuss the limitations in Lopez and Morrison."
The federal government may have some difficulty with this order. The federal courts routinely refer to a federal "police power," but do not specify the source of that authority….
Parts II and III argue (correctly, in my view) that the question is whether the prohibition of bump stocks is constitutional as necessary and proper to implement Congress' power to regulate interstate commerce. Thus Part IV addresses that question.
Posted at 6:08 AM