Roughly half a million bump stock owners could wake up facing felony charges on Tuesday due to a federal rule change retroactively classifying bump stocks as machine guns. That is, unless the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which made the re-classification, is overruled by the the U.S. Court of Appeals for the Tenth Circuit in Denver.
If the national debate over gun ownership is a storm, bump stocks are at its eye. ATF agents found 12 such devices, which are weapon attachments that vastly increase the discharge rate of semi-automatic weapons, in the Las Vegas, Nv., hotel room of Stephen Paddock, who used them to kill 58 people and wound over 500 other attendees at a music festival on Oct. 1, 2017.
Here’s how the ATF explained its rationale for implementing the “Bump-Stock-Type Devices Final Rule”:
[Bump stocks] allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger. Specifically, these devices convert an otherwise semi-automatic firearm into a machine gun by functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter.
By labeling bump stocks “machine guns,” the ATF effectively changed their classification under the 1934 National Firearms Act (NFA) and made them illegal under the 1968 Gun Control Act (GCA), a move which retroactively criminalizes their purchase and ownership.
That means past and future purchasers will be exposed to felony charges.
Yet the upcoming legal battle has nothing to do with whether a bump stock should be, in fact, classified as a machine gun.
Rather, the question is whether the ATF, a federal law enforcement agency within the U.S. Department of Justice (DOJ), has the authority to bypass Congress in making such a reclassification. Congress has the power to enact statutory changes to federal laws, including those concerning gun ownership.
Far from resolving the broader question of bump stocks in the short term, this case effectively sets the stage for a protracted legal and congressional dispute over the concrete definition of “machine gun,” and whether bump stocks pass muster under those terms.
The reclassification could also have collateral consequences for the firearm industry and its consumers. The ATF predicted that its regulatory change would come with a hefty price tag: a total undiscounted cost of $312.1 million over ten years.
Its figures included costs to the public for loss of property ($ 102.5 million), costs of forgone future production and sales ($198.9 million), costs of disposal ($9.4 million), and government costs ($1.3 million).
The ATF noted that its figures did not quantify the potential loss of wages for employees of bump-stock-type device manufacturers, notification to bump-stock-type device owners of the need to destroy the devices, and loss of future usage by the owners of bump-stock-type devices.
Whatever the costs, the ATF adamantly defended the Final Rule, explaining that “courts have recognized ATF’s leading regulatory role with respect to firearms, including in the specific context of classifying devices as machine guns under the NFA.”
It also argued that the reclassification of bump stocks was historically necessary, beginning with the 1986 Firearms Owners Protection Act, which froze the amount of legally transferable machine guns circulating in the general public.
This freeze caused the market value of pre-1986 automatic weapons to spike, which gave gun manufacturers a financial incentive to create devices allowing semi-automatic weapons to simulate the firing rate of automatic weapons without becoming classified as such under the NFA and GCA.
Defining the Machine Gun
Over the ensuing decades, the ATF claims to have received countless classification requests for bump-stock-type devices. In 2006, it concluded that certain bump stocks classified as machine guns under the NFA and GCA. It concluded that “devices attached to semiautomatic firearms that use an internal spring to harness the force of the recoil so that the firearm shoots more than one shot with a single pull of the trigger are machine guns.”
It also declined to classify other bump stocks that do not use a spring mechanism as machine guns, including those linked to the Las Vegas shooting. This distinction between types of bump stocks has resulted in the manufacture and sale of non-spring-loaded bump stocks to gun owners without serial numbers or background checks, respectively.
In the aftermath of the Las Vegas shooting, the ATF received requests from members of Congress and nongovernmental organizations to “reconsider and rectify” what they viewed as a classification error of non-spring-loaded bump stocks.
The ATF argues that Akins v. United States (2009) established its right to do so.
In December 2017, DOJ announced in the Federal Register that it was in the process of creating a federal regulation to interpret the meaning of “machinegun” as it relates to bump stocks. It then investigated the rule change’s import for consumers and solicited feedback from the public until January 25, 2018.
In a February 2018 memorandum, Trump directed the DOJ “to dedicate all available resources to complete the review of the comments received [in response to the ANPRM], and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.”
DOJ then rolled out its official rule change in late December of last year.
It’s on these grounds that the ATF, and by extension the Trump administration, believes it is in the right.
Threat to Constitutional Freedoms?
But the New Civil Liberties Alliance (NCLA), representing Utah resident, bump stock owner, and plaintiff W. Clark Aposhian, begs to differ.
The NCLA, which describes its mission on its web site as countering the “administrative state [and its] threat to constitutional freedoms,” argues that as part of the federal executive branch, the ATF (and by extension the Department of Justice and the Office of the President itself) does not have the authority to change federal criminal law.
They also argue that the change will cause Aposhian and other bump stock owners irreparable injury, as they could face ten years of federal prison time starting March 27th, unless they destroy or surrender their bump stocks.
They filed an emergency motion for an injunction, which would halt the rule change in its tracks, pending deeper judicial review.
The NCLA motion argues:
Mr. Aposhian, like every other bump stock owner in the U.S., was explicitly informed by ATF that the device he purchased was legal to own and operate. Now, without any intervening statutory change, ATF has changed its mind and retroactively ordered Mr. Aposhian to either destroy or surrender his lawfully acquired property by March 26, 2019 or face criminal prosecution.
But this litigation is not about whether bump stocks should be outlawed. This lawsuit solely deals with the question of whether ATF, by administrative fiat, can declare bump stocks to be machine guns retroactively without a valid statutory basis [read: legislative change to the federal criminal code].
In a press release, the NCLA made an appeal to bipartisan impulses:
Congress has never acted to outlaw these devices. In fact, as Senator Dianne Feinstein (D-CA) recently stated, “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action.” She also recognized that “Legislation is necessary” or any ban will not be “protected from legal challenges.”
That a conservative-leaning legal organization is suing the Trump administration for its gun control measures, and quoting a leading Democratic lawmaker in crafting its public statement, highlights the unpredictable alliances and conflicts of politics in the Trump era.
The 10th Circuit ruled Thursday that the ban will not apply to Aposhian, and Aposhian alone, allowing the Salt Lake City resident to continue using the device during his recreational shooting outings for the time being.
Roman Gressier is a TCR news intern. Readers’ comments are welcome