"The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation."
In 2018, the Trump Administration announced that federal gun control laws would now be read to prohibit bump stocks. Previously, the Obama Administration determined that the National Firearms Act and the Gun Control Act did not prohibit bump stocks. The Trump Administration's policy was challenged in several courts.
I filed an amicus brief on behalf of the Cato Institute in Guedes v. Bureau of Alcohol, Tobacco, (D.C. Circ.). We contended that this reversal of positions from the prior administration was not entitled to deference. The Supreme Court ultimately denied cert in Guedes, over Justice Gorsuch's dissent. (Kristin Hickman and Jonathan Adler commented on the denial.)
As far as I am aware, all other courts have likewise turned away challenges to the bump stock ban. Until today at least.
Judge Starr of the Northern District of Texas found that the Trump Administration's policy may be unconstitutional.
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Judge Starr rejects the notion that the federal government has a police power.
The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply. This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government. Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation's founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power.39 None of these powers is the police power.
Instead, the federal government has to rely on one of its enumerated powers. And it hasn't. Judge Starr gave the parties a chance to re-plead their case.
https://reason.com/2020/03/31/district-court-finds-bump-stock-ban-may-constitute-a-taking-because-the-federal-government-lacks-a-police-power/
