No, The ATF Didn’t Hand Us Back Our Bump Stocks

bump stock ban

Courtesy Luis Valdes

This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.

The ATF Didn’t Quite Give Up on the Bump Stock Case

This week there’s been a huge buzz over the bumpiest stocks of them all. You’ve no doubt seen headlines that the ATF “admitted” it lacked the authority to ban bump stocks by slipping them into the NFA. While it’s absolutely true that the rulemaking was illegal, it’s unfortunately not true that the ATF admitted that. I absolutely hate to harsh a good buzz, but it’s important to cut down to the truth.

The articles centered around this issue link back to a press release on NCLA’s ongoing (and very well-done) bump stock litigation, titled “ATF Admits It Lacked Authority to Issue Legislative Rule, NCLA Condemns the Agency’s Attempt to Ban Bump Stocks Anyway.” I believe the source of this confusion is a mix of the confusing way most lawyers speak, and a general unwillingness to read past an article’s headline before re-posting it.

The press release made no claim that the ATF actually admitted a total lack of authority to issue the bump stock rule, but rather that ATF admitted it lacked authority to engage in “legislative rulemaking.” In the ATF’s own meandering, directionless, and painful-to-read 88-page filing, the ATF does indeed admit that the NFA does not “appear to provide the Attorney General the authority to engage in ‘gap-filling’ interpretations of what qualifies as a ‘machinegun.'”

So there you go, right? The ATF just admitted it can’t engage in legislative rulemaking! Well, minor detail: that admission comes after the ATF spent pages upon pages explaining why, in their view, the rulemaking was “interperative” and not “legislative.”

In fact, right after that “admission,” the ATF continues that “Congress has provided a detailed definition of the term ‘machinegun.'” Basically: the ATF’s [absurd] argument is that the statute’s “best interpretation” includes bump stocks, and thus is not ambiguous, and thus there is no “gap” to fill, and no need to engage in Chevron deference.

NCLA’s view, which I agree with, is the opposite. That this is a “legislative rulemaking,” and the ATF, in banning bump stocks, did something beyond the wording of the statute akin to creating a new law. So, yes, the ATF’s admission that it can’t wholesale write new law is helpful. The only issue is that the ATF’s entire argument is predicated on the rulemaking being anything but that. So it is in no way the ATF ceding a lack of authority.

In short: The ATF is saying “We can’t do X. What we did was Y,” while NCLA and many lawyers, including myself, are arguing that what they did was in fact X.

Gun Rights Policy Conference

Dan Z for TTAG

Annual Gun Rights Policy Conference Concludes in Phoenix 

I, along with hundreds of other activists, had the tremendous pleasure of getting to meet some of the greatest minds of our civil rights movement in Phoenix, Arizona this weekend for the 34th annual GRPC. There was a new, refreshing atmosphere of collaboration and coalition-building between various Second Amendment groups in the air, and excellent presentations.

There’s good cause to keep your eyes open and trained on FPC, SAF, CCRKBA, and other 2A-organizations in the coming year. I expect exciting collaboration and real efforts to expand not just the size of our community, but also our scope and reach. Oh, and of course: to win. Next year’s event will be held in Orlando, FL. I can’t recommend that particular city, or the event, enough.

 

Matthew Larosiere is Director of Legal Policy for the Firearms Policy Coalition.

comments

  1. avatar Ed Schrade says:

    Add theft charges to the suit.

    1. avatar GomeznSA says:

      More properly ‘illegal’ deprivation of private property under ‘bogus’ color of law.

  2. avatar Do as we say says:

    When will pro gun lawyers attack the ATF on grounds it lacks jurisdiction , since it was illegally created from the IRS Puerto Rico Trust # 62 ?
    It is has long been doing things it has no authority do do.

    1. avatar John says:

      Criticizing the ATF for the ban would be political suicide.

  3. avatar I Haz A Question says:

    Okay, good to have the clarification. Truth is always better than rumor. However, this still stands as a very important issue, and I hope the NCLA wins the lawsuit. If this avenue the ATF attempted can be blocked, it bodes well for other things the ATF may attempt in the future – or perhaps can be applied retroactively to other rulings it’s made in the past.

    As with most people, I couldn’t care less for bump stocks, but I do care about the overall principle of the matter.

    Keeping an eye on this one.

    1. avatar Gadsden Flag says:

      Haz, once again I agree with you. If I were given a bump stock it would go out with tommorw’s trash. However, the issue is important and should be pursued.

      1. avatar TheUnspoken says:

        Be sure to cut that “machine gun” up correctly before putting it in the garbage bin…

        I see a lot of “we should fight the bump stock ban, but personally I think bump stocks are stupid” from various writers and gun sites. I don’t think that is helpful to the argument.

        The bump stock, the pistol brace, the bullet button, featureless guns, thumbhole stocks, 10 round mags on full sized guns, 16″ barrels, the ppk/s, US 922 parts, etc, all these things are forced to be stupid, because they are the result of bad, flawed legislation. I would much rather have a full auto imported SMG with a stock for the typical LE price, but a variety of laws and rules say that is not allowed.

        I think the bump stock was a good thing, because it tried to legally give back a tiny bit of freedom that otherwise is either legally or financially restricted. While also showing the ridiculous nature of the NFA.

        It has been a good measuring stick for whether Republicans, NRA, people who say they are for the second amendment, to show their true colors. Would they vote for the NFA or Hughes Amendment today? I think most of them would.

        1. avatar 300BlackoutFan says:

          My point exactly, below. The ’86 and NFA laws are what is flawed, not the Bump Stock device.

    2. avatar MarkPA says:

      The bump-stock litigation might be pretty interesting.
      A lower court might rule against ATF; but then what? Would Trump really want to appeal? And, would Trump really want to appeal to SCOTUS?

      Kav is hostile to the doctrine of “Chevron deference”; and, if there is a real dispute here about the Executive branch usurping the power to legislate then SCOTUS might take an interest in this one. Then, again, as interesting as it might be, getting 5 justices to agree on the preferred outcome in this case has a low probability of occuring.

      So, if ATF loses in a lower court my prediction is that Trump will throw-in-the-towel and claim he tried to ban bump-stocks but just couldn’t.

      Now, suppose I’m wrong; or, that the plaintiffs win in SCOTUS. That will throw the ball to Congress. The outcome might be really ugly; Congress might write bump-stocks into the NFA`34. Yet, this might be an opportunity!

      Bear in mind that the Democrats will want to lard-up the NFA’34 with bans on everything they can get; such as binary triggers. The Republicans will then have something to fight back against. “We can’t just put everything – including an oil can – into the NFA’34!” they will cry. Someone might be brave enough to put in an amendment to repeal the Hughes Amendment. The sausage that comes out of this might be so unappealing that the bill just stalls in the Senate – no matter what the House might pass. Trump can threaten a veto if certain objectionable elements are included in the bill – while still maintaining that he really is sincere in wishing to ban bump stocks.

      The worst possible outcome is that the NFA’34 gets re-opened and the result is totally unacceptable to us. (E.g., they might ban “the shoulder thing that goes up”!) The PotG might then respond: ‘Congress can legislate; now let’s see them enforce it!’

      Just as Californian gun-smiths invented the bullet-button, a whole nation of creative gunsmiths will try to find loopholes in whatever bill Congress might adopt. It will be just impossible for Congress to re-write the definition of “machine gun” in such a way that they won’t open the field to novel litigation. A new NFA’34 might put this law into such disrepute that Congress will be forced to give up. That might become a defacto repeal of Hughes Amendment because only in so doing will Congress be able to regulate novel inventions such as binary triggers and bump stocks.

      1. avatar I Haz A Question says:

        Yes, yes, and yes. Well written, Mark. Let’s hope this starts the slippery slope of repeal. The Left (modern day Dems being de facto led by AOC, Tlaib, and others illiterate in civics) won’t be able to resist taking the bait and would muck up the works.

      2. avatar strych9 says:

        “…getting 5 justices to agree on the preferred outcome in this case has a low probability of occuring.”

        I’m curious as to why you think this to be the case?

        If they take the Constitution seriously they cannot allow the Executive to usurp the Legislative. OTOH, if they care about their own power they similarly cannot allow such a thing as they would effectively give up their ability to, in future, render decisions designed to enforce the separation of powers on the Executive.

        Given the lack of respect showed to the Court’s opinion in NLRB v. Noel Canning I find it odd to think that they would further undermine their own authority with decisions that effectively take them “out of the game”.

        I haven’t paid the utmost attention to the ins and outs of this particular case but I just don’t see how they don’t smack down the ATF on this. What are you seeing here that I’m not?

        1. avatar Red says:

          Of those on the Court today, only Clarence Thomas takes the Constitution seriously as it was written.

          Most of the rest make it up as they go along.

          Some even look at foreign laws for precedent. I am not making that up.

  4. avatar Rocketman says:

    Fact: The government will always do WHAT IT THINKS IT CAN GET AWAY WITH. Bump stocks are not a “go to the wall over this” issue for the majority of gun owners. But once government claims a “victory” it will always seek to expand that victory with other similar situations and if it succeeds there it will continue on until it reaches it ultimate goal. The complete disarmament of the American people. Then the tyranny of the Americans REALLY begins.

  5. avatar Green Mtn. Boy says:

    As the agency it’s self is un Constitutional,any product produced of it would be ………..

  6. avatar MIO says:

    LOL they didn’t just hand them back well no…..
    Y’all sure handed them over though wearing that spartan molon labe no steppy snake shirt.

    1. avatar Geoff "I'm getting too old for this shit" PR says:

      Free clue, jizz-stain – Bump-stocks are made of *plastic*.

      No metal detector can find them.

      LOL right back at ya, moron… 😉

  7. avatar 300BlackoutFan says:

    Isn’t the question then, to the ATF, “What changed such that at least on two prior occasions, you determined that the Slide Fire Bump Stock was, in fact, NOT a machine gun”. Either the ATF changed the LEGAL definition of what a machine gun was such that it incorporated bump stocks, or they didn’t.

    The other question would be that since the ATF, in their ruling, declared other forms of bump-firing to explicitly NOT be machine guns, the ATF have specifically indicated that bump firing does NOT make a machine gun.

    This means it’s the device, not the method, that is at issue. And thus the importance for question #1….

    To IHazAQuestion and GadsdenFlag… would you also toss an actual, registered machine gun in the trash for the same reason? The bump stock was simply a device to (originally legally,) as closely as possible replicate a machine gun without the $10-40k price tag. So since you care not for a bump stock, I presume you care not for MG either. In which case, you’re ok with the ’86 “ban” on MGs for civilians? Just curious….

    1. avatar I Haz A Question says:

      I would not toss a select-fire M4 into the trash, of course, so that’s a bit of an odd thing to ask. Just the bump stock, as Gadsden said.

      With a select-fire, there’s more control over the length of burst, and a better ability to aim at your target. The only thing that moves (ignoring the muzzle recoil that’s common to all guns) is your trigger. With a bump stock, the entire gun is shaking back and forth, hampering the operator’s ability to either aim or control the length of burst. Bump stocks are novelties, while select-fires are suitable for mission engagements.

      Another reason why the installation of a bump stock does NOT create a “machine gun”.

      1. avatar 300BlackoutFan says:

        Unless you have fired a bump stock, you are making an unfounded assertion that # rounds and accuracy are better with a select-fire firearm versus one equipped with bump stock.

        As someone who HAS fired both a bump stock and MG, the # rounds is PERHAPS well founded (although of little consequence – I doubt that too many could tell you how many rounds they fired out of a FA – not to be confused with 2 or three round burst modes), however #2 is absolute bunk. Also, I don’t believe that direct fire, precision engagements (aka mission engagements) occur more often with select fire (versus semi-auto). Covering fire, etc – absolutely…

        Just because you would rather have a Ferrari doesn’t mean you can afford one, and so you can settle for that Toyota, which, in rush hour traffic, moves at the same pace as that Ferrari. We all agree that the Government shouldn’t be able to tell you the Toyota is no longer street legal.

        1. avatar I Haz A Question says:

          It seems as though you’re in the mood to simply argue, regardless of the direction of the conversation, so I’m not going to go into a lengthy explanation of why I said what I did above. I think it’s already rather self-evident.

          You’re entitled to your opinion, so if you have a bump stock or MG, go for it. But I don’t want either one.

        2. avatar Hannibal says:

          I don’t need to drive a dump truck to know it’s different than a Corvette. There are basic physics at play here.

        3. avatar jwtaylor says:

          “however #2 is absolute bunk:
          No. A select fire M16 is far more controllable than a bump stock equipped AR-15. There’s really no comparison. Yes I’ve shot them both, a lot.
          As a matter of fact, anyone that went to the Texas firearm festivals could have shot them both back to back. And lots of people did. Everyone that shot the M16 wanted an M16. Everyone that I talked to who shot the bump stock equipped AR-15, came away glad they shot it, because they confirmed that that they do not want a bump stock equipped AR-15.

        4. avatar doesky2 says:

          I got my bumpstock clone for 90$.

          When I let relatives and friends use it the Smiles, Wows!, and YeeHaws! per dollar was pretty darn high.

          If I had a true MG I doubt I’d let many people run it.

      2. avatar The Grey Man says:

        Haz, it’s pretty accurate when I fired one. Can’t speak for round count since I’ve never fired a true select fire M4….

  8. avatar Mad Max says:

    I don’t think the SCOTUS is going to go for the ATF’s re-interpretation of “a single function of the trigger.”

  9. avatar Dunc says:

    Help the readers out, when writing an article, at least say what/who the acronym is so one doesn’t have to leave the article to figure out “who’s that?”.
    g00gleFu results NCLA=
    Vegan & Cruelty-Free Beauty | NCLA BEAUTY
    The North Carolina Leadership Academy
    NCLA – North Carolina Locksmiths Association
    National Card, Label & Affixing
    North Carolina Library Association
    North Carolina Lacrosse Academy

    1. avatar I Haz A Question says:

      Clicking on the link the author provided directs you to the page showing the press release by the New Civil Liberties Alliance.

      I didn’t have to figure it out…I simply used the link provided for that purpose.

    2. avatar Rusty - Die Ruthie Die - Chains says:

      Hope you are using google as a verb. Their spyware especially in their search is everywhere on the web, lots of major web sites report everything they can back to Google for the $$$.

      1. avatar strych9 says:

        Most websites overall, not just lot’s of big ones, run Google Analytics as part of what amounts to a quid pro quo for the site to get search result returns.

        For example: TTAG runs both Google Analytics and Facebook Connect, along with like 17 other trackers.

        1. avatar I Haz A Question says:

          I use Privacy Badger. Blocks stuff like that. For example, my icon is showing a total of 12 blocked trackers for this comment page alone as I write this, including Amazon and Twitter believe it or not. Interestingly enough, it also tells me that Google Analytics and Facebook Connect are present on the page, but not currently tracking. Might be because I always, always, always use Incognito mode when browsing.

          It’s really tough to be completely invisible nowadays, but that’s several fewer trackers following me.

  10. avatar Chiefton says:

    If my finger can pull a trigger as fast as a bump stock can the ATF ban me from owning firearms at all? How about the likes of some of these professional shooters who definitely are as fast with a semi auto firearm as a bump stock? What if they can do it with a revolver? RPM’s (rounds per minute) is not what determines or makes a firearm an automatic weapon.

    1. avatar Hannibal says:

      Your finger is not a device, so no.

  11. avatar Anonymous says:

    A better way to sum it up, is that either BATF can retract the rule (they haven’t), or the judge can strike the rule down.

    Based on what ATF said, the judge will probably have no choice but to strike the rule down. But until they do, it is still legally enforceable.

  12. avatar Timothy Toroian says:

    SCOTUS might do something about it but since it was not an actual law but a ruling Article 1, section 9, clause 3 regarding no ex post facto legislation may not apply. Especially if so clever person says it is a temporary ban.

  13. avatar Harmon says:

    Sort of a tangential question but wondering if anyone has a good legal answer (and not speculation). Bump stocks were a device that made it easier to bump fire a firearm. The bump firing trick required no device, just learning a technique. Is using that technique also illegal? Also, there are ways to create a bump stock like device on one’s own with the same effect (using what looks like $10 worth of stuff from Home Depot). Is any type of device or technique that mimics the action of a bump stock, i.e. supposedly a machine gun, now illegal? Of course like the matter of arm braces, it may be best to not discuss it or publically shoulder it lest it draw attention and the heat has blown over. The bump stock ban if a timely concocted contrivance of legality, politics and press power may be reversed, but I’m wondering for now how far reaching its inferences are.

  14. avatar George says:

    And Obamacare was not a tax until it was ! Bureaucrats do what bureaucrats do.
    Which is screw with everybody !

  15. avatar Sam Hill says:

    I am kinda hazy on this ATF thing. If in fact it is an ILLEGAL entity, then how did they get off the hook at Waco, Tx. and Ruby Ridge? I smell smoke in the form of a beer fart.

  16. avatar Steven Lynch says:

    If you turn them in, you’re idiots , thank you Donald Trump!! The ATF no longer have the power

  17. avatar Alan says:

    On Bump Stocks, a miracle happens. The nations highest court promptly rules in Plain English that the president’s decree and the follow on actions of the ATF/BATFE are in clear violation of existing federal law. Additionally, it again in Plain English rules that all surrendered Bump Stocks be returned to the parties that surrendered them, and that they be returned in good and proper condition.

    Aggrieved citizens, bearing official government receipts arrive at designated locations, where they are met by government agents who sadly inform that their items cannot be returned, the whereabouts thereof cannot be determined. The whereabouts of responsible individuals are also unknown. Obviously, the bureaucracy is thumbing it’s nose at both the aggrieved citizenry and more important perhaps, at the court. What happens now is, shall we say, To Be Determined. Looking at the past antics of the bureaucracy in general, the ATF/BATFE in particular, outlandish as the above described might seem, one wonders as to how unlikely such unfolding might actually be. For those who would say that I take an overly dark view, perhaps they are right. I do not so think, and I believe that history, unfortunately supports the dim view that I take.

  18. avatar George Washington says:

    Funny you mention the MUMBO JUMBO that is used by those crooks, the LIEYARS….I MEAN LAWYERS….
    TALK ABOUT A PROFESSION THAT SERIOUSLY NEEDS TO BE REGULATED….
    EDUCATED IDIOTS EVERYWHERE WANT TO BECOME LAWYERS, BUT IT HAS TO BE ONE OF THE MOST CONTEMPTUOUS AND DISGUSTING PROFESSIONS OF THEM ALL!!!!
    At least in it’s current incarnation….
    These people are the SCUM OF THE EARTH, TO BE SURE!!!!!!

    1. avatar Guesty McGuesterson says:

      I couldn’t hear you. Could you please add a few more exclamation points?

  19. avatar Kyle says:

    seems like the leftists had the right idea just the wrong target.

    Its not ICE nor the CBP that needs to be disbanded, but rather the ATF.

  20. avatar Gary Daniel says:

    Local Police continually ignore the Gun Control Act of ’68/’72. They confiscated my Black Powder weapons as Firearms. They are not firearms as per the GCA of ’68/’72 and they were not brandished. The stupid cops couldn’t even unload 1871 technology on the real firearm. Don’t trust your pice to k ow anything. Don’t fight them though. They will kill you because they think they can get away with it and they can.

  21. avatar Pierre77L says:

    They should now repeal the bumpstock ban after it cant be codified. So once that was legal is illegal. Later back to being legal. Sue the ATF and Trump for this debacle and democrats including Sen. Dianne Feinstein. Bring back the manufacturing jobs of bumpstocks and other accesories.

  22. avatar Chris T in KY says:

    The Bump Stock is the “poor man’s” MG. And many folks including many in the gun community don’t want the poor to have the same fire power as the rich. It’s just class warfare on gun ownership. Just like most gun owners with 6 or 7 gun safes will never buy a Hi Point. Or a Sccy or a Taurus. The guns of the working class.

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