The Red Tape of the Bureaucracy

By empowering the administrative state—and by increasing legal ambiguity—the Biden administration and various state officials are trying to reduce the use of this right.

by
posted on September 23, 2023
gun wrapped in red tape
Photo: Peter Fountain

It took me a long time to write this piece. I spent the first three months waiting for my writing permit, which by law should have taken 50 days, but which was delayed while the staff at the Federal Department of Print went on strike. Despite asking, I never did get a discount on the $75 processing fee.

After that, I spent a great deal of effort ensuring that I was in compliance with the ever-changing rules. My desktop computer was safely stored, as per regulations, but it turned out that, because the edges of the screen are black and I have a large external hard drive, it has been recently re-classified as an “assault mainframe” with “a high-capacity hard drive.” According to the agents who visited my house, this means that I can keep my keyboard plugged in or my USB cable plugged in, but that I cannot do both at the same time. Working around that set me back a week or two.

And then there were the issues I faced while traveling with my laptop. Thankfully, the state I live in has permitless computer carry, but many of the cities I went through do not. And, annoyingly enough, most of the coffee shops I found were “Writing-Free Zones.” In Denver, I asked the barista if it really mattered, but she gave me a firm look and explained that “arguments start revolutions.” Words, you see, are dangerous. Thank goodness that I’m being forced to pay for language insurance.

None of that is true, of course. The very idea is ridiculous. The First Amendment holds that Congress is prohibited from making any laws that abridge “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” and the Fourteenth Amendment applies this rule to the states. On the whole, we take this pretty seriously—and those who don’t are mostly forced to by the courts.

But you see my point, don’t you? The fact that we have almost no laws regulating speech in the United States—and the fact that the ones we do have are straightforward—makes it extremely easy for American citizens to speak, write and argue. When I sat down to write this piece, it never occurred to me that I needed to worry about the precise meaning of poorly written restrictions, or about the capricious whims of politicized bureaucrats, or about the latest bad ideas coming out of Congress. I just did it. I wrote what I wanted to write, where I wanted to write. I read my work aloud with impunity. And, when I was finished, I transmitted it across the internet without permission, dispensation or indulgence.

red tape

The Second Amendment does not represent a perfect analogy to the First. But one area in which the two do undoubtedly overlap—and overlap in ways that should be clear to everyone—is in the effect that government restrictions have upon the willingness of the law-abiding to freely exercise their rights. Notably, those restrictions do not need to be stringent to be highly effective. As anyone who hails from a tyrannical country will tell you, the mere existence of broadly written speech regulations is enough to have a chilling effect on most uses of speech. Uncertainty smothers liberty in the cradle. Tell a man he is free, and he will be free. Tell a man that there are 4,000 laws on the books, that there are four different agencies tasked with enforcing those laws, and that the meaning of those laws is liable to change on-the-fly and ... well, he may conclude that he is unwilling to take the risk after all.

This is no mere theory. In spite of the plain language of the Second Amendment, there are still many places in this country in which it is nigh on impossible for even the most conscientious gun owners to remain faithful to the law. Leave aside the possible training requirements, mandatory waiting periods, insurance obligations, permitting fees and other entry-level obstacles, and consider instead the sheer number of rinky-dink rules that are placed in a normal person’s way. Consider the prescriptive safe-storage regulations gun-control proponents want to impose—some of which are so onerous that they undermine the rationale for keeping a gun for one’s defense. Consider the absurd matrix of quotidian parts and cosmetic features that is used in some states to determine whether commonly owned firearms are deemed to be legal or illegal. Consider the patchwork quilt of carry restrictions—sometimes imposed within the same state or city. Consider the inscrutable “gun-free-zone” assignations that can make it impossible to walk from the diner to the mall without trespassing. Sometimes, one gets the impression that the rules have been explicitly designed to force would-be gun-owners to throw up their hands and disarm.

One is right to suspect as much.

The term “shall not be infringed” has always accommodated categorical exemptions—for children, for non-citizens, for convicted criminals, for the mentally ill. But it sits much less easily with micromanagement. And, boy, does American law seek to micromanage the right to keep and bear arms. In and of itself, this habit leads to some absurd outcomes. Why does a rifle with a barrel of 16 inches or fewer require an NFA stamp, while a rifle with a barrel of 17 inches or more is exempt? Why does the state of California consider guns with safety features, such as forward grips, flash suppressors and barrel shrouds, to be more dangerous than those without? Why are suppressors (or “silencers”)—which are better for shooters’ ears—treated in the same way under the law as machine guns? Beats me. And yet, as bad as these rules are on their own terms, they are rendered infinitely worse by the inconsistent way they are interpreted and enforced.

Since he was inaugurated as president of the United States, Joe Biden (D) has been engaged in a clear attempt to keep the American public unsure and uneasy about the laws under which they live. Last March, Biden held a press conference during which he repeated his desire “to require background checks for all firearm sales,” and then he announced his intention to “take every lawful action possible to move us as close as we can to universal background checks without new legislation.” What did this mean? Nobody was quite sure. A year before Biden’s announcement, Congress had passed a minor change to the definition of “engaged in the business of dealing in firearms.” But that change, while unnecessary and unwelcome, was largely superficial. On what grounds, many people asked, could Biden possibly achieve “universal background checks” without new legislation? And why was he sowing such confusion?

Since he was inaugurated as president of the United states, Joe Biden has been engaged in a clear attempt to keep the american public unsure and uneasy about the laws under which they live.

The answer, I’d propose, is rather simple: Because confusion favors the regulators rather than the regulated. Why has President Biden sought to prohibit the home assembly of certain un-serialized firearms—a practice that has been legal without caveat since the first days of the republic? Why has he tried to redefine guns that use pistol braces as short-barreled rifles that require registration, and thereby, to potentially instantly criminalize tens of millions of gun owners across America? The answer cannot be that Biden believes that these measures will aid in the prevention of crime. No, it seems much more likely that Biden wishes to set in place the precedent that gun policy is made by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rather than by Congress or by the U.S. Constitution; he also wishes to send a signal to America’s gun owners that, because they can never really know what the law is, they should reduce their use of the right to keep and bear arms of their own accord.

Naturally, the more laws and regulations there are in place, the easier this ploy becomes. The worst nightmare of any ambitious bureaucrat is a carefully delineated rule. His dream is the tangled, sprawling, impenetrable thicket—the rat’s nest of commands that may be used for any purpose he can dream up and may be adapted to any circumstances or desires that might arise. In the 1940s, George Orwell spoke warmly of the “rifle on the wall of the labourer’s cottage or working class flat,” which he described as “the symbol of democracy.” You will note that he did not add a laundry list of provisos to this depiction. He didn’t specify the height at which the rifle must be hung on the wall. He didn’t define the distance between the screws on which, per Order #652, its stand had to rest. He didn’t decide arbitrarily that some rifles looked too scary for the working classes to own. As was typical, his language was crystal clear.

If we wish to avoid the chipping away of our Second Amendment by a succession of tiny blows, our language must be crystal clear, too. As a matter of urgency, we must seek to simplify the rules that we do support (for example: laws prohibiting violent criminals from possessing firearms and strict punishments for those who have been convicted of such crimes) and to abolish or trim down the rest. Vague provisions must be excised. Expansive delegations of power from our legislatures must be removed. The agencies that have been tasked with enforcing the law must have their remits narrowed and their behavior closely monitored. At every state, simplicity should be our aim. Permitless carry should be considered preferable to shall-issue, which, in turn, should be deemed superior to any system that requires the discretion of public officials.

Distinctions drawn in statute must be based upon hard characteristics and be intelligible to a layman: think “semi-automatic” v. “automatic” or “supersonic” v. “subsonic,” as opposed to frivolous babble about “assault weapons.” Insofar as they ought to exist, restrictions ought to be categorical, binary and contrived in such a manner as to ensure that any alterations must be made by lawmakers rather than mandarins.

And beyond that? Beyond that, those mandarins must be sedulously watched. As Rep. Jim Jordan (R) has correctly observed, the last few years have brought with them a series of bureaucratic abuses that ought to defy belief. The FBI has paid Twitter to silence Americans. The Department of Justice has painted parents at school board meetings as terrorists. During COVID-19, various state governments even went so far as to prevent citizens from attending church. Unfortunately, the sort of zealotry that has led our agencies to behave this way will not be exorcized by clarity in the law; it must be removed with good old-fashioned oversight, investigation and, where necessary, punishment. Certainly, we must take away the arbitrary and capricious rules that our bureaucrats wield. But we must also make sure that they do not take the limited raw materials with which they have been left and refashion them anew. To this end, watchdog institutions such as Jordan’s Select Subcommittee on the Weaponization of the Federal Government will be imperative, as is the NRA.

Ronald Reagan famously said that if you want more of something, subsidize it, and if you want less of something, tax it. To this maxim we might add that if you want to prevent something from being done, regulate it—preferably in a myriad of irritating ways. And if you don’t want to prevent something from being done? Get rid of the regulations and build a wall around your rights.

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