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Banned Bump Stocks Bring Lawsuit

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Earlier today, numerous media outlets reported that ATF had finalized a regulation that would alter the definition of the term “machine gun” and ban the possession of bump stocks. The rule is set to take effect 90 days after publication in the Federal Register. During the rulemaking phase, a number of people had questions about the effect of a final rule. What would happen to binary triggers? Would bump stocks be grandfathered in? Would ATF consider an amnesty and open the registry? Perhaps most importantly, who is going to sue them?

Slide Fire

Binary Triggers
While a number of people believed that binary triggers would be affected by this final rule, it appears that may not be the case…at least until a court decides otherwise. From the final rule:

The Department disagrees that other firearms or devices, such as rifles, shotguns, and binary triggers, will be reclassified as machineguns under this rule….While semiautomatic firearms may shoot one round when the trigger is pulled, the shooter must release the trigger before another round is fired. Even if this release results in a second shot being fired, it is as the result of a separate function of the trigger. This is also the reason that binary triggers cannot be classified as “machineguns” under the rule–one function of the trigger results in the firing of only one round.

Grandfathering of Bump Stocks/Opening the Registry
Various commenters during the comment period argued that ATF would be able to simply grant amnesty or grandfather in current bump stocks. Some went as far to claim ATF could simply reopen the registry in a general amnesty period. Unsurprisingly, ATF disagrees:

While in 1968 Congress left open the possibility of future amnesty registration of firearms subject to the NFA, ATF has long held that it eliminated any possible amnesty for machineguns in 1986…18 U.S.C. § 922(0) would preclude the registration ofmachineguns during an amnesty period. Section 922(0) prohibits possession of machineguns which were not lawfully possessed prior to its effective date of May 19, 1986 …. Since 922(o) [was enacted after the amnesty provision of the NFA], its provisions would prevail over any earlier enactment in conflict. This means that any future amnesty period could not permit the lawful possession and registration of machineguns prohibited by section 922(o).

It would seem that amnesty or a grandfathering provision is not only off the table for bump stocks but any form of amnesty is no longer an option, at least from the government's position.


Final Rule
The final rule alters the definition of the term “machine gun” in the regulations dealing with the Importation of Arms, Ammunition and Implements of War (regulations for the Arms Export Control Act), Commerce in Firearms and Ammunition (regulations pertaining to the Gun Control Act), and those controlling Machine Guns, Destructive Devices, and Certain Other Firearms (the regulations for the National Firearms Act). For the purposes of this article, since this is the part that will affect the majority of the readers, the focus will be on the GCA and NFA regulations.

The following language is added to the end of the current definition of a machine gun.

* * * For purposes of this definition, the term “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and “single function of the trigger” means a single pull of the trigger and analogous motions. The term “machine gun” includes a bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

As a result of this change in the definition, the Government is now clearly contending that bump-stock-type devices are machine guns for the purposes of both the GCA and the NFA. They went further to interpret or “define” the terms “automatically” and “single function of the trigger”.

Shortly after the announcement of the final rule, Damien Guedes backed by institutional plaintiffs Firearms Policy Coalition, Inc., Firearms Policy Foundation, and the Madison Society Foundation, Inc. filed suit against the ATF, Acting Director of ATF, the purported Acting Attorney General, and the United States of America, seeking a preliminary injunction from the enactment of the final rule.

The suit challenges the purported Acting Attorney General's authority to finalize a rule, documents various violations of the Administrative Procedures Act, reviews violations of ATF's rulemaking authority, along with several other issues.

If you're interested in donating to the lawsuit, you may do so here.

Check out this video from The Gun Collective on the topic of bump stocks:


Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world and The Gun Collective Podcast. He was also the general manager of a gun store in the suburbs of Philadelphia.

Instagram: @theadamkraut
Twitter: @theadamkraut

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