President Trump’s Proposed Bump Stock Ban Faces Legal Hurdles

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 24, 2018

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Bump StockAs America processes the aftermath of another mass shooting, President Donald Trump has issued a public memo to the Department of Justice directing the agency to devote considerable resources towards drafting a ban on “bump stock” devices.  Although the President may have public support for revisiting the legality of bump stock modifiers, a review of existing law regulating semi-automatic and automatic weapons suggests that any gun policy the administration attempts to unilaterally enact would fail to survive constitutional challenge.

President Trump Escalates Efforts to Ban Bump Stocks

Following the deadly mass shooting in Las Vegas last November, President Donald Trump directed the DOJ to review and consider revising Obama-era policy which allowed for the legal sale and purchase of bump stocks.  Little known outside the gun community until its use in the Las Vegas shooting, a bump stock device modifies semi-automatic weapons to allow for users to rapidly pull the trigger repeatedly with little effort.  The effect of a bump stock is semi-automatic weapons can fire with speed approximating fully automatic weapons, which, as deployed in Las Vegas, enhances the power of the gun.

President Trump’s efforts to ban bump stocks escalated this week in the wake of a tragic shooting which claimed 17 lives at Marjory Stoneman Douglas High School in Parkland, FL.  Although the shooter in Parkland did not utilize a bump stock device, the President issued the directive to show movement towards gun regulation which limits access to weapons, or devices attached to weapons, which enable shooters to fire bullets rapidly with ease.  The President’s memo to the DOJ, directs the agency to “dedicate all available resources … [and] as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.”

Trump’s Legal Argument Against Bump Stocks

In his memo to the DOJ, President Trump specifically directed the department to start “the process of promulgating a Federal regulation interpreting the definition of “machinegun” under Federal law to clarify whether certain bump stock type devices should be illegal.”  This directive targets the current interpretation of federal law 26 USC §5845(b) which defines machineguns — illegal for public sale and purchase since 1986 — as follows:

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 any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

According to President Trump’s legal argument, bump stock devices should be considered illegal under this existing federal law because they enable a shooter to effectively make a semi-automatic weapon transform into an illegal machinegun under the above definition.  Although the Obama administration declined to interpret the explicit ban machinegun conversion devices to include bump stocks, Trump’s directive to the DOJ suggests that the President is more interested with the effect of the device rather than the operational mechanics of it.  Legal pundits and weapon experts are likely to disagree, however, and should the DOJ proceed as directed and issue a rule interpreting §5845(b) to include bump stocks, there will be a compelling legal challenge in federal court.

Legal Limitations on President Trump’s DOJ Directive

A common misinterpretation of the way which bump stocks work could easily result in the belief that a rule enacted by the DOJ to ban them as machinegun conversion devices would pass a constitutional challenge in court.  However, the mechanics of bump stocks do not sync up with the language of §5845(b), which specifically defines an illegal machinegun as any weapon with the ability to fire more than one shot automatically “by a single function of the trigger.”  Fully automatic weapons, and devices which enable fully automatic conversion, allow for rapid firing with one pull of the trigger, but bump stocks do not.

Bump stocks do allow users to increase the speed at which their weapons fire; however, they do so by enabling repeated and rapid engagement of the trigger rather than by allowing rapid fire with one engagement of the trigger.  The distinction may seem functionally nit-picky since weapons with bump stocks convert to rapid fire approaching the level of fully automatic weapons, but there is a legally significant difference between existing definitions of machineguns and conversion devices such as bump stocks.  This difference discouraged the Obama administration from banning bump stocks in 2013, and will likely make any regulation passed by the Trump DOJ difficult to defend in court.

Although it is yet unclear what such a regulation will look like, the administration will likely argue that the functional effect of bump stocks should bring them into the fold of banned machinegun conversion devices.  Whether or not such an argument carries weight remains to be seen, but the difficulties President Trump faces in his public quest to enact unilateral gun regulation suggests that Congress will need to be involved if there are to be any meaningful and constitutional measures limiting access to rapid-fire weaponry.

Photo Credit: By WASR (Own work) [CC BY-SA 3.0], via Wikimedia Commons

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