On March 29, ATF posted a notice of proposed rulemaking (Docket Number ATF2017R-22) to the federal register that would amend the existing definition of what constitutes a “machine gun” used in the enforcement of federal gun laws. The purpose is to re-classify bump stocks as NFA-regualted items. The National Rifle Association Institute for Legislative Action has submitted comments (PDF download) in response to the proposed rulemaking.
In a wonderfully written letter written by Josh Savani, director of their Research and Information Division, the NRA-ILA supports its arguments using rulings from Murr v. Wisconsin, Akins v. United States, Duncan v. Becerra, United States v. Dodson, and Lingle v. Chevron USA, Inc.
The NRA states that current law sets forth a mechanical test, not a performance-based standard focusing on rate of fire for bump fire stocks and that since ATF has consistently applied that definition to devices or firearms depending on their function. They also point out that the ATF has noted that “bump fire” can be induced in unmodified semi-automatic firearms. Yet unmodified semi-automatic firearms are clearly not “machinegun[s]” under federal law and do not become one simply because a particular user induces bump fire with them.
Secondly, the NRA states that semi-automatic firearms were in common use when Congress created the first definition of “machinegun” in 1934, and the current definition of a machine gun in 1968. Yet unmodified semi-automatic firearms have never been considered machine guns for purposes of federal law.
Indeed Congress enacted an entirely separate law to regulate AR-15s and various other semiautomatic firearms between 1994 and 2004, with no suggestion that these firearms could simply have been administratively reclassified as machine guns.
Third, the NRA-ILA states that any regulation that’s adopted must protect “those who in good faith acquired devices that ATF now seeks to reclassify as “machinegun[s].” Owners of these products have relied on over a decade of ATF’s own rulings and guidance when lawfully acquiring bump fire stocks, and the proposed rule would now turn these gun owners into felons or require destruction of their property.”
The NRA-ILA also argues on Fifth Amendment grounds:
Beyond problems of fundamental fairness, the lack of a way for gun owners to retain some value in their property likely makes the proposed rule a taking in violation of the Fifth Amendment. While some courts have refused to recognize taking challenges that result from the exercise of the government’s regulatory authority, recent Supreme Court case law makes these cases of questionable merit. In Murr v. Wisconsin, a regulatory land-use decision, the Court held that:
The Takings Clause of the Fifth Amendment provides that private property shall not be taken for public use, without just compensation. The Clause is made applicable to the States through the Fourteenth Amendment. As this Court has recognized, the plain language of the Takings Clause requires the payment of compensation whenever the government acquires private property for a public purpose, but it does not address in specific terms the imposition of regulatory burdens on private property.
The NRA-ILA claims that the case for a takings clause violation is even stronger with devices that would be reclassified as machine guns by the proposed rule because, unlike the California magazine owners who could move their property out of the state or transfer it to a firearms dealer, owners of bump fire stocks would only have the option of turning in or destroying their property.
All of which lead up to an argument for the ‘A’ word:
When passing the Gun Control Act in 1968, Congress included a 30-day amnesty period for individuals to register NFA firearms. In addition to that amnesty period, Congress gave the Secretary of the Treasury the authority to conduct additional amnesty periods of up to 90 days for any single period. This provision gave broad authority to the Secretary by allowing amnesty “as the Secretary determines will contribute to the purposes of this title.”
When ATF reclassified certain shotguns as destructive devices in 1994, the agency also provided for a period of amnesty, which finally closed May 1, 2001 after about 8,200 of the shotguns were registered with ATF.
ATF could provide one or more 90-day periods of amnesty for the registration of bump fire stocks. While there are some additional complications due to the lack of markings on bump fire stocks, Congress has delegated broad discretion to determine the scope and requirements of any amnesty. ATF already has experience with firearms marking issues for individuals who are not federal firearm licensees. (Every time a non-licensee makes an NFA “firearm,” the maker must mark the firearm in compliance with federal law.)
In addition to providing amnesty for bump fire stocks, ATF should consider a broader amnesty for “machinegun[s].” When Congress delegated the authority to provide for additional periods of amnesty, there was a clear legislative understanding that amnesty generally serves the purposes of federal firearms laws by bringing “machinegun[s]” and other NFA “firearms” that are currently contraband, and therefore likely to eventually end up in the wrong hands, into the legal market where they have value and are extremely unlikely to be used in crime.
While there has always been some concern about an amnesty affecting ongoing investigations or allowing possession by otherwise prohibited persons, ATF, as previously stated, could place substantial limitations on the scope of any amnesty, and would be free to set the requirements for registration to prevent the problems associated with the 1968 amnesty.
Emphasis added. Read the whole thing here. (PDF download).
You just read that right. The National Rifle Association has thrown down the gauntlet and basically stated that if the ATF is going to reclassify bump stocks as machine guns then it should provide an amnesty period to current bump stock owners and should also open the registry for all. That means just about anything could be registered as machine gun.
My Daewoo K2, Ruger Mini-14, Zastava M90NP, Microtech XM17-E4, and even my Kel-Tec SU-16C could be registered under the amnesty as a full-auto machine gun as well as my AR-15s.
The NRA-ILAs position is that amnesty would be an all-or-nothing proposition and that any other method of regulating bump stocks violates constitutional law, case law, and administrative law.
This is a dramatic change from the NRA’s past statements regarding bump stocks.
This is a great piece of work by the NRA. This is the NRA that gun owners want to see. An organization that just doesn’t fight to keep the status quo, but that takes the argument to the opposition. Again, read the whole thing. Kudos to the NRA for a job well done.