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.” Another way to say this is 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 firearm’s recoil, allow the shooter to produce fully automatic fire with a single trigger pull. 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 the filling of more class action suits 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 due process issues. By classifying these items as machineguns, the ATF claims there is no violation of due process. This is because you have no property rights that were illegal to own when purchased. The ATF is not saying these items are NOW illegal. The ATF claims 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 did not exist before the statute’s effective date 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. The ATF is trying to usurp the role of Congress by writing its 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. Also, there are strong arguments that the new law violates due process. There is also a question of whether the ATF has the authority to rewrite laws written by Congress.
Pay attention to the calendar and the news until they make a decision if you are a bump stock owner. If the lawsuits are unsuccessful, you may have to destroy or surrender your bump stock next month.
If you have questions about bump stock guns, contact us at 281-668-9957.
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.