Trump Administration Bans Bump Stocks

As expected, the Justice Department has issued a new rule banning bump stocks. However, it is likely to face legal challenges.

The Trump Administration, acting via the Justice Department, has announced a ban on bump stocks, devices that allow semi-automatic weapons to function as automatic weapons, and ordered the confiscation, surrender, or destruction of existing bump stocks:

WASHINGTON — The Trump administration on Tuesday issued a new rule banning bump stocks, the attachments that enable semiautomatic rifles to fire in sustained, rapid bursts and that a gunman used to massacre 58 people and wound hundreds of others at a Las Vegas concert in October 2017.

The new regulation, which had been expected, would ban the sale or possession of the devices under a new interpretation of existing law. Americans who own bump stocks would have 90 days to destroy their devices or to turn them in to the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Justice Department said A.T.F. would post destruction instructions on its website.

Bump stocks work by harnessing a firearm’s recoil energy to slide it back and forth to bump against a squeezed trigger, so that it keeps firing without any need for the shooter to pull the trigger again. The Justice Department said that this function transforms semiautomatic weapons, like assault rifles styled on the AR-15, into fully automatic machine guns, which Congress sharply restricted in 1986 — allowing the ban.

“With limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machine-gun unless it was lawfully possessed prior to the effective date of the statute,” the new regulation states. “The bump-stock-type devices covered by this final rule were not in existence prior to the effective date of the statute, and therefore will be prohibited when this rule becomes effective.”

A senior Justice Department official, briefing reporters about the new rule on condition of anonymity, said that it was believed that tens of thousands of bump-stock devices are in circulation, but that more exact figures are unavailable. The official said the department expected that most owners of the devices would comply with the new regulation, and that A.T.F. would investigate and take legal action against those who violate it.

After publishing a proposed version of the rule earlier this year, the government received 119,264 comments in support of it and 66,182 expressing opposition to it, the Justice Department said.

The regulatory move may face a legal challenge. The Justice Department had initially decided that the executive branch lacked the authority to ban bump stocks on its own under existing gun-control laws, and that action in Congress — where it is politically difficult to enact new gun-control legislation — would be necessary to curb legal access to the devices.

But the department reinterpreted its legal authority and determined it could ban the devices as an executive action after President Trump directed it to find a way to prohibit them earlier this year, following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla. (The shooter in that massacre, who killed 17 people and wounded 17 others, did not use a bump stock.)

In the immediate aftermath of the massacre in Las Vegas that left 57 people dead and hundreds injured after a man using semi-automatic weapons equipped with bump stocks shot at a crowd gathered in an outdoor arena for a country music festival, there was much focus on these devices which were largely unknown even among people who are self-admitted gun hobbyists and enthusiasts. Even strong proponents of gun rights (see here, here, and here, for example) argued that there was no defensible reason for such devices to be legal, something I argued myself just a few days after the shooting. Many Republicans on Capitol Hill agreed, and at least publicly stated that they would be willing to move forward on Congressional action to ban the device. Additionally, polling showed that the American public as a whole was very supportive of the idea of banning these add-ons as well as other gun control measures. At the time at least, it seemed as though this would be one small gun control measure on which everyone could agree and that we could see quick action on the part of Congress on what seems like a fairly straightforward issue. Unfortunately, it soon became apparent that this initial optimism was misplaced. With the House and Senate both focused at the time on the Republican tax plan, the bump stock issue quickly faded from away and momentum on any kind of legislation on the issue slowed to a crawl on Capitol Hill. In the end, no action was taken on the issue and nobody seemed to notice. In the wake of the shooting in Parkland, Florida, though, attention was focused on the issue again and President Trump instructed the Justice Department to examine the issue and to issue a regulation banning the devices. This is what led to proposed regulations from the Justice Department, and this new rule is the result of that process.

Obviously, this new rule will raise a number of legal issues, some of which seem easy to resolve than others.

The primary argument, of course, would be a challenge under the Second Amendment, but in this case it seems clear that the argument against the ban would be unlikely to succeed. In his majority opinion in District of Columbia v. Heller, which is essentially the first Supreme Court opinion to deal with the basic scope of the Second Amendment in its 200-year history, Justice Scalia made it clear that the Court was explicitly not finding that the right that the Amendment covers is unlimited or that the Amendment meant that there were no circumstances under which the Federal Government, states, or localities could regulate the types of weapons citizen could own or carry:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

The Miller decision that Scalia makes reference to here is United States v. Miller a 1939 ruling from the Supreme Court upholding a law enacted in 1934 which placed restrictions on the ownership of the machine guns (i.e., fully automatic weapons) of the day and heavily taxed their owners. Clearly, Scalia was intending to make it clear that Heller was not intended to overrule Miller and that it was also not intended to stand for the proposition that any regulation of weapons was per se invalid under the Second Amendment. Taken in that context, it seems clear that a regulation designed to prevent semiautomatic weapons from being converted to fully automatic weapons, which Miller clearly states are not protected by the Second Amendment, would be acceptable under Heller in addition to the fact that it just makes sense.

Another potential issue regarding this new rule concerns the requirement that existing bump stocks be turned into the government or otherwise destroyed. As James Joyner noted on Twitter when the news first broke, there is potentially an issue over whether or not this would be an unconstitutional taking in violation of the Fifth Amendment to the Constitution. In that respect, the most relevant question is whether or not persons who turn over their existing bump stocks would be compensated in some manner for doing so. If yes, then that would arguably satisfy the requirements of Fifth Amendment’s Eminent Domain Clause. I have admittedly not had the opportunity to read the entirety of the 157 page Dept. of Justice memorandum, so I can’t speak to the issue of whether there is a potential legal challenge on these grounds or not, but it will most assuredly come out if there is.

The final legal issue that comes to mind is perhaps the must nuanced and difficult one, and that’s the question of whether or not the Bureau of Alcohol, Tobacco, and Firearms has the legal authority to issue this rule to begin with. As has been noted in the past, originally the BATF under President Obama had ruled that it lacked the statutory authority to issue a regulation banning bump stocks, meaning that it would be up to Congress to enact legislation accomplishing this if these devices were to be banned. That previous ruling is likely to become the basis for what seems like an inevitable legal challenge to this new rule given the fact that Congress has not changed the law on this issue at all and that the BATF’s rule issued today is based on essentially the same laws that were in effect when its original rule was issued. In any case, the rule has been issued and will go into effect in 90 days unless a Court rules otherwise.

Here is the full memorandum issued by the Justice Department:

BATF Rule Banning Bump Stocks by on Scribd

FILED UNDER: Fifth Amendment, Law and the Courts, Second Amendment,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Liberal Capitalist says:

    Let’s see…

    Obama expanded gun rights.

    Trump limited gun rights.

    OK Trumpeters. ‘splain it to me.

  2. Matt says:

    So does this ban rubber bands, shoe laces and belt loops too? Those can be used to bumpfire a gun and under the new interpretation it would seem to me that those would be covered by the ban. Since you have to turn in the stocks even when they aren’t installed that would mean other devices that aren’t installed must be turned in/banned too? Or am I just reading it too broadly or something?

  3. Michael Reynolds says:

    Deafening silence from the usual. I guess gun love is just one more ‘principal’ they’ll willingly surrender to cult leader.

    Or do the bot masters not know how to program this in light of Butina?

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  4. Mister Bluster says:

    Belt loops? Ha!
    Trump is going to make all the gun owners run around with no pants on so they can’t carry concealed anymore!
    The upside of that is they won’t be accidently shooting their little peckers off!

  5. Matt says:

    @Mister Bluster: The belt loop thing is a really old trick were you position the gun pretty much in the hip firing position. Put your finger through the trigger guard in front of the trigger and loop the end of you finger through the belt loop. Then you pull the gun forward and keep pulling forward just like with a bump stock. It’s about as accurate as a bumpstock.

    Trump method of choice for doing this has me seriously worried.

    The good news is this action has lessened Trumps grasp on some of his voters. Had an interesting conversation today where I pointed out that gun owners rights were expanded under Obama and shrunk under Trump. I had to present a few examples before they saw my point and I could see their true believer status shedding a little. It helped that we had talked about Medicare for all prior which he found acceptable/desirable. Lord knows if it’ll stick.

  6. Mister Bluster says:

    I know what “the belt loop thing” is.
    Don’t patronize me.

  7. MarkedMan says:

    @Mister Bluster: FWIW, I didn’t know what the belt loop thing was

  8. Mu says:

    Will be interesting how this plays out in court. By executive fiat a whole new class of items, gun accessories, has suddenly become regulated. Does that mean the EPA can outlaw cars under 25 mpg as bad for us?

  9. Matt says:

    @Mister Bluster: How exactly was that patronizing? I merely explained what I was referring to because I know from experience there are a lot of people here who don’t have much knowledge involving guns let alone relatively obscure tricks. Even among gun owners the belt loop trick isn’t well known.

    @Mu: Yeah I’m worried about what this sets a precedent for.

  10. Mister Bluster says:

    @Matt:..I know from experience there are a lot of people here who don’t have much knowledge involving guns…

    Then direct your remarks to them.
    Do not assume that you must educate me about firearms.

  11. Matt says:

    @Mister Bluster: You know you might have a point if your response had given a tiny indication that you knew what I was talking about when I said belt loops. Instead you gave a nonsensical response which to me and others seemed to indicate you had no idea what I was talking about.

    What is your problem? Why are you so set on being an outright asshole for no reason? You rarely provide anything resembling real conversation here. At least 80% of your posts here are nonsensical. So don’t be surprised when people assume you don’t understand.

    EDIT : OH wait I get it you’re living up to you name haha. Go away you’re providing nothing useful to the conversations here with that. Stick to your real persona..

  12. Mister Bluster says:

    Why are you so set on being an outright asshole for no reason?
    I am emulating your Supreme Leader and Chairman of the REPUBLICAN Party Kim Jong Trump!

    Go away…
    Yes massa.

  13. Matt says:

    @Mister Bluster: It’s kind of funny. You raged about me making an assumption about you then you turn around and make assumptions about me…

    I’ve been here since nearly the beginning of the blog so there is a long history of me expressing my political beliefs. Here’s a hint… I haven’t voted Republican since 2000. I regret my votes that year..