Over the past few weeks, the term “bump stock” has unfortunately become ubiquitous with the intersection of firearms legislation and the tragedy in Las Vegas. With regulation currently on the minds of both sides of the political aisle, I believe it’s worth taking the time to look back at how past administrations handled devices similar to bump stocks. Before we get started, we need to define a couple terms.
Bump Stocks – Federal Law
First, federal law defines a “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” See 26 USC § 5845(b).
Next, Section 921(a)(23) of the Gun Control Act of 1968 (GCA) defines “machinegun” thusly: “The term “machinegun” has the meaning given such term in Section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).”
We can ascertain from both of these definitions that a machinegun, according to federal law, is not defined by its cyclic rate of fire, but by the mechanical function of the trigger (i.e. how many bullets fire per trigger pull).
In comparing the function of bump stocks with the textual definitions of “machinegun,” it becomes apparent that they do not fit either, and are thus not subject to regulation under the National Firearms Act (NFA), including registration, taxation, and transfer requirements. See 26 USC §§ 5821, 5852(b), 5853(b), 5852(c), 5811(a), and 5841. Specifically, bump stocks do not have the capability of allowing a weapon to fire multiple rounds with each trigger pull. Instead, they assist the user in pulling the trigger of a firearm rapidly. Again, bump stocks do not mechanically modify the trigger on a firearm.
While Congress has provided two definitions for “machinegun,” it is worth noting that “trigger” is not defined in the NFA or GCA. While it can be argued that the lack of a definition of “trigger” can lead to unusual results with esoteric and new firearms, by and large, rational and reasonable people would understand what a firearms trigger is. Nevertheless, the broader statement, “single function of the trigger” has been debated, especially in the last fifteen years.
Bump Stocks – Past Regulation
While groups around the country, including the National Rifle Association (NRA), are calling for the Bureau of Alcohol, Tobacco, and Firearms (BATF) to examine whether bump stocks comply with federal law, it can be argued that the BATF has already exceeded its statutory authority by way of applying an expanded definition of “single function of the trigger” to regulate similar devices.
From 2003 to 2006, the BATF approved, but later rescinded and reclassified a device known as the “Akins Accelerator” as a “machinegun” subject to the regulation of the NFA and the GCA. Without exploring design and patent specifics, the Accelerator was a stock device, similar to the current generation of bump stocks, that assisted a shooter in firing a semiautomatic rifle at a faster pace.
The last BATF determination letter in 2006 stated that the Accelerator was a machinegun not because it mechanically allowed for a user to fire multiple rounds from a single trigger pull, but due to the fact that the device’s “theory of operation” was that of a machinegun. (See the BATF’s letter dated 22 November 2006 to Mr. Thomas Bowers, President of Akins Group, Inc.) Nowhere in the text of 26 USC § 5845(b) does the statute reference “theory of operation,” and the BATF gave no explanation as to how the agency determined the Accelerator did not meet the “theory of operation” of a machinegun, or even define the phrase “theory of operation” on the determination letters approving the Accelerator dated 17 November 2003 and 29 January 2004.
To solidify their position on the Akins Accelerator, the BATF issued a policy statement, ATF Ruling 2006-2, which stated that “conversion parts that, when installed in a semiautomatic rifle, result in a weapon that shoots more than one shot, without manual reloading, by a single pull of the trigger, are a machinegun as defined in the National Firearms Act and the Gun Control Act.” The BATF then went on to classify the Akins Accelerator when properly used as an accessory for its intended purposes, as a machinegun.
William Akins, inventor of the Akins Accelerator, challenged the BATF after the negative outcome in 2006. Specifically, he alleged that the BATF violated the Administrative Procedures Act (APA) by using “arbitrary and capricious” means to determine that the Accelerator was a machinegun.
While tracing the entire judicial history of this case is outside the scope of this article, the 11th Circuit affirmed the BATF’s determination. See Akins v. United States, 11th Cir., DC Docket No. 08-00988-CV-T-26-TGW, 4 February 2009.
Ironically, in 2010, the BATF issued a letter ruling that the current generation of bump stocks were not subject to regulation under the NFA or GCA after inquiry from Slide Fire Solutions, a Texas manufacturer of bump stocks. The BATF ruled that the bump stocks were not subject to regulation because, “the stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed. In order to use the installed device, the shooter must apply constant forward pressure with the non-shooting hand and constant rearward pressure with the shooting hand.” See BATF’s letter dated 7 June 2010 to Slide Fire Solutions.
Using this logic, the difference between the Akins Accelerator and the current generation of bump stocks is the Accelerator’s use of a coil spring that drives the firearm forward into contact with the shooter’s finger. As a result, if the shooter keeps constant pressure on the trigger, the Accelerator will keep firing. This follows for a liberal line of reasoning that a “single function of the trigger” is synonymous with a “single pull of the trigger” as discussed in the NFA’s legislative history. See, e.g., National Firearms Act: Hearings Before the Comm. On Ways and Means, House of Representatives, Second Session on H.R. 9066, 73rd Cong., at 40-41 (1934).
Putting it another way, the BATF’s line of reasoning appears to be, “if it has a spring, it’s illegal.” In all practicality, drawing an artificial line in the sand between bump stocks with and without coil springs further illustrates the problem with allowing executive agencies to interpret and make rules based on archaic statutes from the Depression-era. Not to mention the Congressmen charged with drafting these terms freely admitted they were lawyers and not firearms manufacturers. See, e.g., National Firearms Act: Hearings Before the Comm. On Ways and Means, at 40-41.
The problem with bump stocks is clear. The NFA’s interpretation of “single function of the trigger,” or lack thereof, leads to disparate results. Can’t the BATF’s “theory of operation as a machinegun” argument be applied to the current generation of bump stocks as they did with the Accelerator? It’s not that difficult of a choice; the BATF and courts need to strictly adhere to the letter of the law with the NFA and throw out the liberal “theory of operation” argument, or admit that Congress needs to revise the NFA.
Realistically, I cannot entirely fault the BATF for yielding mixed results on the bump stock issue. Adapting a law meant to regulate folks like John Dillinger from being able to walk into a gun shop and buy a Thompson isn’t an easy endeavor, considering the significant changes in firearms technology since the 1930s.
With the current political climate, it makes sense for the NRA and Republicans in Congress to call for the BATF to examine bump stocks yet again. Even if the BATF decides to rule that the current generation of bump stocks are now subject to regulation under the NFA and GCA, the likelihood of another firearms accessory manufacturer designing another derivative of the bump stock remains.
This is not even considering the fact that the BATF will be forced to grandfather in all current owners of bump stocks, similar to how machineguns manufactured prior to 1986 were grandfathered in the Firearm Owner’s Protection Act of 1986. I say “forced” because the likelihood of the current administration sitting idly by while an executive agency barges into every gun range and gun owner’s home to seize their legally purchased bump stocks is almost nonexistent. This is, after all, precisely what the Second Amendment was written to prevent.
However, the gold standard to settle this issue once and for all would be Congress passing legislation to further clarify the NFA. Unfortunately, that seems unlikely.
So, the cat and mouse game of the BATF redefining “single function of the trigger” with the vague “theory of operation” argument for the purpose of qualifying any new technology released as a “machinegun” continues. And, the confusion law-abiding gun owners face on a daily basis regarding the BATF’s positions on contemporary firearms and their accessories will continue as well.
The only solution to halting the damning of firearms and accessories on a case-by-case basis is to update the NFA in a meaningful way.
Here’s a thought: maybe Congress should actually clarify the NFA instead of relying on the BATF to legislate morality in the wake of tragedy. If, that is what Congress (and the people) truly wants to do, of course. Often, what is politically expedient in the short term leads to decades of confusion and needless litigation in the long run.
Look no further than the fear of organized crime prevalent in the NFA’s legislative history. And while we are at it, let’s move toward clarity in legislative drafting, as “a law is unreadable if it is needlessly hard to read, understand, or use.” See Dorsey, Legislative Drafter’s Deskbook: A Practical Guide, p. 180 (2006).
Here’s a legislative solution: draft a term for new technology in the NFA, i.e. “trigger-assist mechanism,” and then exempt or regulate it. That would at least prevent further confusing and contradictory defining and redefining of “machinegun.”
In the alternative, the BATF will attempt to regulate the current generation of bump stocks and open up litigation. Granted, the likelihood of a bump stock owner filing a suit against the BATF for violating the APA is very high, if the BATF decides to reclassify the current generation of bump stocks under the same legal theory that they approved it in 2010. While William Akins didn’t prevail against the BATF in his suit, the “arbitrary and capricious standard” is more applicable in today’s climate, especially considering the detailed BATF determination letters approving the current generation of bump stocks in 2010.
Truly, it would easy to argue that reclassifying the current generation of bump stocks as machineguns is arbitrary and capricious when you take into account the exact same line of reasoning that was used to approve it is now used to damn it, especially when politics and current tragedy are significant factors in the decision to reclassify. Again, this will result in years of litigation and uncertainty for firearms owners. For more information on the APA and the “arbitrary and capricious” standard, see 5 USC Sec. 706.
“All you need is a legislature and a ballot box…Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing their demands on society.”Antonin Scalia, Justice of the Supreme Court of the United States, 2011
For almost ten years, our country has existed in legislative gridlock while courts are forced to “legislate from the bench” and administrative agencies continue to create policies that have the force of law. All the while, Congress passes the buck while the judicial and regulatory process takes the heat for our appointed representatives’ inaction in the face of bad publicity.
The Speaker of the House and Senators “requesting” the BATF do something about bump stocks has absolutely no bearing on the legislative process. It is merely responsive to the socio-political climate of our times in context with a law that is frankly hard to apply today. If Republicans want to revise the NFA to reclassify bump stocks for more regulation, they need to do their research, draft a law, pass that law, and be willing to accept the political repercussions from the gun lobby and gun owners around the country. And, if Republicans don’t think bump stocks need further regulation, they at least need to pass a law clarifying bump stocks and similar new firearms technology are exempt from regulation as “machineguns.”
Former SCOTUS Justice Antonin Scalia once said in a 2011 interview, “All you need is a legislature and a ballot box…Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing their demands on society.”
If the people that elected the Republicans feel that voting to regulate bump stocks is the proverbial “straw that broke the camel’s back” and they cannot in good conscience vote for their state representatives and senators, then vote them out. That’s how the democratic process should work. And, if people are tired of Congress in perpetual deadlock, it’s time to vote them out and stop giving our representatives a free pass and a sizable salary for inaction.
Regardless of where you are on this particular issue, the bump stock debate illustrates we have problems to deal with in this country that require the legislative branch to have the courage of their convictions and act in the face of well-defined fears of political reprisal.