The Justice Department, under the direction of the NRA’s boy, President Donald Trump, has moved to reclassify bump stocks as machine guns.
I should begin by saying that I do not own any bump stock, and I have never fired a weapon equipped with one. I think they are a silly toy, and I have never been interested in them. To quote Colonel Townsend Whelen, “Only accurate rifles are interesting.” I was surprised, saddened, and angered by the 2017 Las Vegas shooting, and I won’t shed any tears about a bump stock ban. I am, however, concerned about the broader implications to gun rights and the rule of law.
Federal law clearly defines “machine guns” (more properly known as fully-automatic firearms). Bump stocks clearly do not fit that definition. The ATF has already said so unequivocally. Bump stocks were, in fact, created specifically in response to the law.
The ATF is a regulatory agency, part of the Justice Department. They do not define the law. However, they do formulate and publish legal opinions which are used to guide their regulation of gun dealers and manufacturers. By themselves, these legal opinions do not have the force of law, but if a licensed dealer or manufacturer defies these opinions, it will mean trouble for them, a loss of their license at minimum.
Since the law has not changed, the legality of bump stocks has not really changed.
What has changed is anything within the authority of the ATF. Licensed dealers and manufacturers, mainly. The ATF does have the authority to charge individuals. However, the court is obligated to follow the law, not the ATF’s rules. If bump stocks do not fit the definition of a machine gun, then an individual cannot be successfully prosecuted for owning a bump stock (not registered as a machine gun). Such a case would certainly be undermined by the ATF’s own previously published opinions on the matter. It seems unlikely that the ATF would actually file an indictment they know they can’t win.
In practice, licensed gun dealers will have to stop selling bump stocks. If there are any licensed gun manufacturers who are making bump stocks, they will have to stop. The ATF and the Justice Department will undoubtedly threaten all of the bump stock manufacturers, and I expect most of them will cave in and shut down their businesses. It remains to be seen whether any will stand and fight (in court). It would be a gamble for the Justice Department to actually take a case to court, since the law is clearly on the side of the manufacturers. However, it would be a gamble for the manufacturers as well, as it would cost a great deal of money and risk a conviction. Even if the manufacturers won, their legal investment could be for nothing if the law is subsequently changed.
As for individual owners, a rule change really offers no opportunity for a grandfather clause or a meaningful grace period. The rule must take effect 90 days from publication. Since civilians cannot register fully-automatic firearms made after 1986, and bump stocks were invented after that, anyone in possession of one after that risks action from the ATF. An individual owner facing prosecution by the ATF may be protected by the law, but there are no guarantees in court. Just ask Brian Aitken.
UPDATE: There is already a lawsuit seeking an injunction.