Originally published in Forbes on March 1, 2019

Speaker of the House Nancy Pelosi recently warned Republicans that if a GOP president can declare a national emergency over a wall on the southern border, the next Democrat president could declare one over gun violence. Her threat envisioned future gun control actions without Congress. But that’s already happening—and it has made a shambles of constitutional lawmaking.

The Department of Justice (DOJ) issued the Bump Stock Type Devices Final Rule late last year. This criminal regulation retroactively bans ownership of bump stocks, an accessory that helps shooters fire semi-automatic weapons more quickly by bumping the trigger with their finger when the gun recoils.

When the 90-day compliance window closes on March 26, lawful purchasers of some 520,000 bump stocks must have either surrendered their devices or destroyed them. Absent judicial relief, this regulation will convert all remaining owners of bump stocks into felons without action by Congress.

But the various lawsuits pending against the rule are not about guns or gun rights. Rather, these suits ask whether DOJ may create new criminal laws without involving Congress. The Constitution’s answer is a firm no. New criminal laws must clear the twin constitutional hurdles of “bicameralism” (passage by both houses of Congress) and “presentment” (Presidential signature or veto override).

Even a staunch gun control advocate like Senator Dianne Feinstein has recognized that Congress must be the one to act here: “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action. Legislation is necessary to ensure a ban is implemented and regulations are not tied up in court.” Likewise, the Obama Administration faced tremendous pressure from allies to ban bump stocks via regulation but decided that it could not lawfully do so unilaterally. A pen and a phone would not suffice for this.

Nevertheless, current policymakers have defined two allegedly ambiguous terms in the 1934 National Firearms Act in order to ban bump stocks. Despite 80+ years of clarity and dozens of federal cases deeming the statute unambiguous, DOJ is trying to create a loophole in the definition of “machinegun” to fit bump stocks into it. Usually it’s criminal defendants who try such stunts to exempt their machineguns from the ban. This time it’s DOJ claiming ambiguity—and eroding respect for the rule of law.

Worse yet, in this week’s case out of the federal district court in D.C., the judge invoked the Chevron doctrine in deferring to DOJ’s definition of the terms “single function of the trigger” and “automatically.” DOJ’s new definitions are awkward at best, but Chevron poses the more nettlesome problem. This embarrassing precedent tells federal judges to defer to the executive branch’s statutory interpretation whenever the judge decides that a statute is ambiguous and the agency’s interpretation is reasonable. There is not room here for a complete takedown of Chevron, so suffice it to say that the D.C. plaintiffs did not enjoy due process of law when their judge deferred to the other party in the case rather than providing her independent judgment.

Besides which, the Chevron doctrine should not even come into play where a criminal statute is concerned. The Rule of Lenity dictates construing ambiguity in a criminal statute in favor of defendants. And make no mistake; there will be defendants. DOJ has conceded in court that it will use these same definitions to go after any bump stock owners who hold onto their devices.

Therein lies a future injustice. It is practically certain that some number of lawful purchasers will not get the word that bump stocks were banned. They will show up at a gun range to fire one, be seen there by an ATF agent or other law enforcement official and get arrested. The penalty is up to 10 years in prison and a permanent ban on gun ownership. These innocent owners will have no reason to have anticipated a ban—at least not a retroactive one. When Congress banned machineguns themselves in 1986, it did not do so retroactively.

This fact raises two further questions. First, how can a statute that did not ban anything retroactively later be construed to authorize banning bump stocks retroactively? It cannot, at least not when interpreted reasonably. Perhaps the greatest indignity to the Constitution in these cases is the idea that a statute that quite deliberately did not ban machineguns retroactively can be rewritten later by a federal agency to ban bump stocks retroactively. DOJ—and the D.C. district court—rely on the fiction that the statute is ambiguous when it is just silent.

Second, were Congress to ban bump stocks, would it do so retroactively and with the same penalty structure as owning an actual machinegun? History says no, especially since Congress has tried and failed to ban bump stocks several times—and those bills were rarely retroactive.

But DOJ’s loopholing requires it to use the same penalty structure because DOJ knows that courts will not let it get away with altering the length of sentences. DOJ often assures that prosecutorial discretion will prevent injustice. Somehow trust in that is hard to muster when the Department is already mangling the Constitution to rewrite the statute.

Congress is generally not willing to turn law-abiding citizens into felons, because Congress has to face voters. Administrative agencies like ATF and DOJ face no voters and show no such qualms. Bump stock owners risk prison as a result. Everyone else risks the terrifying consequences of allowing DOJ to write criminal laws without Congress. After all, if DOJ can create the bump stock rule, what stops it from bypassing Congress to create criminal laws on other subjects?

Barrels of ink have been spilled criticizing the administration’s national emergency declaration to transfer some funds for building a wall on the southern border. The bump stock ban sets a far worse precedent, yet comparatively little alarm has been raised. No matter one’s feelings about gun control policy, everyone should oppose rapid-fire destruction of constitutional lawmaking. Our liberty is in jeopardy

Written by Mark Chenoweth