A reader who wishes to remain anonymous writes:
This week a gunman opened fire on a music festival using one or more firearms equipped with a bump fire stock, killing over fifty people and injuring hundreds more. In response, Senate Democrats introduced a bill to ban bump fire stocks.
The instinctive reaction from gun rights advocates is to reject any gun control proposals. They cite the Second Amendment’s prohibition against any government infringement of the right to keep and bear arms. They warn that banning bump fire stocks is a slippery slope to greater gun control.
And yet there’s a compelling case to be made for a bump fire stock ban. First, a little history . . .
In 1929, seven Chicago mobsters murdered seven rivals with machine guns. In 1934, Congress responded to the “massacre” and other mob crimes involving “Tommy guns,” explosives and other “dangerous” weapons (e.g. sawed-off shotguns) by enacting the original National Firearms Act.
The NFA was designed to limit the ability of a single civilian to inflict mass casualties — machine guns and bombs being the most dangerous weapons available at the time. An attempt to minimize the damage any one person could cause.
On its face, the law was unconstitutional. In U.S. v. Miller, the Supreme Court ruled in favor of the government. A legal precedent was set: the Second Amendment was not absolute and could be restricted.
Almost 70 years later another Supreme Court case affirmed that the Second Amendment was not absolute. While D.C. v. Heller was huge win for 2A supporters — striking down D.C.’s handgun ban — it left the door open for future regulation.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose
It’s pretty clear that the Supreme Court was referencing the National Firearms Act when they wrote that decision. Handguns are clearly a protected firearm. But the Court didn’t want to open the door to civilian ownership of machine guns, short barreled shotguns, machine guns and other “dangerous” weapons.
With two Supreme Court rulings supporting the idea that firearms ownership can be restricted, the question becomes whether a bump fire stock ban would be legally acceptable.
For that we turn to the Strict Scrutiny test. Under Strict Scrutiny, a law must (A) have a compelling government interest, (B) be narrowly tailored and (C) be the least intrusive method of meeting the government’s interest.
The compelling government interest in this case: the preservation of life and the prevention of further mass murders. The same reason which prompted the Supreme Court-approved National Firearms Act.
Under some theories of government, its purpose is to provide for the security of its citizens — whether from external or internal threats. The same reason governments raise armies, employ a police force and regulates dangerous drugs.
In this case, a government bump fire ban would be an attempt to provide protection for its citizens, outlawing a device it deems unreasonably dangerous. It’s the same concept underpinning the ban on post-1986 machine guns.
Under strict scrutiny, the restrictions must be narrowly tailored. On this test the Dianne Feinstein’s bill falls short. Her proposal bans external devices which increase the rate of fire of a firearm, but it goes further.
As TTAG reported, the bill would ban all modifications which would increase a rifle’s rate of fire — which could include replacement triggers. If Congress amended the bill to simply ban bump fire stocks, the argument could be made that it simply is closing a loophole in an existing set of laws (the NFA) in as narrow a manner as possible.
The final question is one of intrusiveness.
Banning semi-auto rifles would fail this test spectacularly — semi-auto rifles have a clear functional purpose for sporting and self defense use. But a bump fire stock? Every expert (including Robert Farago) has declared that there’s no legitimate purpose for a bumpfire stock — aside from being a “range toy.”
For the same reason that the government is permitted to restrict ownership and use of fireworks– products with no practical purpose — the government would be within its rights to ban bump fire stocks. The potential for harm to the general public is evident, and the potential impact to the everyday life of American citizens if these items were no longer available would be small.
So, the government seems to be legally in the clear to pass a law banning bump fire stocks. But is a bumpfire ban a good idea?
Since the passage of the National Firearms Act there’ve been sparingly few murders committed with machine guns. Fully automatic firearms have been so expensive and their owners so thoroughly investigated that it was nearly guaranteed that only the most upstanding citizens (or at least those with the most to lose from a murderous rampage) would own them.
The development of the bump fire stock has changed things.
While machine guns are still all but illegal, bump fire stocks create firearms with similar capabilities without falling under NFA restrictions. Some see the black swan nature of the Las Vegas mass shooting as evidence that the National Firearms Act protections work. Bump fire stocks tear down that barrier and open the door to future attacks. A ban of these specific items would restore that protection.
Even gun rights advocates might want to allow bumpfire stocks to be banned.
Every time there’s a mass shooting, Democrats gnash their teeth and wail that nothing ever happens to “curb gun violence.” That the evil NRA has a stranglehold on the Republican party. Banning bump fire stocks would be a concession, but a relatively minor price to pay to kill that narrative, make the NRA seem reasonable, and remove the ability for Democrats to use congressional inaction to fuel their base in the coming midterm elections.
A bumpfire ban would be a small sacrifice that helps keep Republicans in power and reduce the possibility of stricter and more onerous gun laws down the road.
The counter argument: “Banning bumpfire stocks won’t solve the problem, criminals will still be able to make them at home.” True. Criminals intent on breaking the law would have no issue breaking one more by building or buying a newly illegal illegal bump fire stock. The argument was illustrated by the San Bernardino attack, where the attackers bought California-legal firearms and swapped out parts to make them into California-illegal “assault weapons.”
But just as the NFA has limited the criminal use of machine guns, a ban on bumpfire stocks would certainly diminish the possibility of their manufacture and use — both of which would incur significant federal penalties.
Let’s face it: bumpfire stocks are a clear circumvention of the National Firearms Act, allowing functionally identical firearms to heavily regulated machine guns with none of the associated protections. Banning bumpfire stocks would simply be an extension of existing policy, closing a loophole to a nearly century old gun law that worked as intended.