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The Slippery Slope of Gun Confiscation

In 2018, the Department of Justice, through the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), issued a final rule banning bump stocks. This new rule defines bump stocks and slide fire devices as "machineguns" under federal law. This effectively renders all such devices illegal to possess under federal law, since any lawful machinegun must have been in existence and properly registered under the National Firearms Act as of May 19, 1986. In short, federal law defines "machinegun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." In English – you pull the trigger only once and more than one round is discharged. In crafting the new rule, the ATF reasoned that bump stocks, through the recoil of the firearm, allow the shooter to produce fully automatic fire with a single pull of the trigger. With reference to the tragic events in Las Vegas, the ATF stated bump stocks pose an imminent threat to public safety. If you currently own one of these devices, it must be destroyed or surrendered to the ATF by March 26, 2019.

Is it a crime to own one?

After March 26, 2019, it will be a federal felony to possess a bump stock. This crime is classified as a violation of 18. U.S.C. 922(o)—illegal possession of a machine gun. If convicted of such a crime, you could face up to 10 years in federal prison and up to a $250,000 fine for each bump stock in your possession. 18 U.S.C. 924.

What happens in the meantime?

Lawsuits! Immediately following the passage of this rule, Second Amendment advocacy groups and individuals across the United States began litigation. Notably, Gun Owners of America filed a lawsuit in federal court in Michigan, located within the jurisdiction of the gun-friendly Sixth Court of Appeals. This legal challenge, along with many others, seeks a preliminary injunction and argues the new law is an unconstitutional taking and a violation of due process. A preliminary injunction would prevent the rule from going into effect until a court finally decides its constitutionality—which could take months, or even years.

We anticipate more class action suits will be filed under the Just Compensation Clause of the U.S. Constitution and many state constitutions. These suits will demand constitutionally entitled just compensation for these governmental takings. Simply put, a class action lawsuit would ask the courts to grant money to all owners who were forced to destroy their items.

So, is it Constitutional? What about Due Process?

The ATF used a strange argument to get around the issues of due process. By classifying these items as machineguns, the ATF claims due process is not violated. This is because you do not have any rights in property that was illegal to own when purchased. The ATF is not saying these items are NOW illegal. The ATF is claiming that slide fire devices became illegal in 1986 before they even existed, because they are machineguns. This quote from the Justice Department highlights their twisted logic: "[W]ith limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machinegun unless it was lawfully possessed before the effective date of the statute. The bump stock-type devices covered by this final rule were not in existence before the effective date of the statute, and therefore will be prohibited when this rule becomes effective."

By re-defining machine guns, the ATF is rewriting the law. This move is unprecedented! Congress drafted, and voted on the passage of, the National Firearms Act in 1934. Congress later wrote additional laws called the Gun Control Act. Legislative drafting is a role expressly delegated to Congress. This is separation of powers 101, and the ATF is trying to usurp the role of Congress by writing their own laws. The ATF argues they are simply interpreting and enforcing the law.

It is hard to say how courts will decide these issues and the rule’s constitutionality. There are strong arguments in favor of the ban being a governmental taking requiring just compensation, and there are strong arguments that the new law violates due process. There is also a question of whether the ATF has the authority to re-write laws written by Congress.

Until these issues are decided, if you are a bump stock owner, pay attention to the calendar and the news. If the lawsuits are unsuccessful, you may have to destroy or surrender your bump stock next month.

Author: Curtis Reynolds

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.

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