Should “Bump Stocks” Be Illegal?

 Should “Bump Stocks” Be Illegal?

Tom Addair – Addair Law

Gun law amendments and revisions have been a dividing issue in America for decades. While the argument has many facets, the classification of certain firearms—as well as the legality of different attachments—has always been one of its most contentious. In just the past year, there has been a lot of unease about what qualifies as a “machine gun”, also known as an automatic rifle.

Another pressing issue surrounds “bump stocks”. Bump stocks are firearm attachments that use the recoil of a semi-automatic firearm and allow it to be fired in more rapid succession. Through the Gun Control Act and National Firearms Act, machine guns have been declared illegal. Now, some argue that bump stocks allow semi-automatic weapons to operate like fully automatic weapons, and thus question their legality. 

While these stocks are not currently illegal, they have recently been banned by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which has, in turn, led to an appeal from The New Civil Liberties Alliance (NCLA). The NCLA, a nonpartisan group, argues that the ATF has no right to rewrite a law that has not been proposed by Congress.  

ATF Bans Bump Stocks

In 2019, the ATF included bump stocks in their list of banned weapons, alongside fully automatic weapons. Over 500,00 citizens in the United States owned bump stocks at the time of this rule alteration, essentially classifying these owners as criminals. The ATF then declared that citizens owning bump stocks must destroy or surrender their stocks—or face a ten-year prison sentence. 

The ATF defended their change in the legal status of bump stocks in America by explaining that the definition of a machine gun in the National Firearms Act, as well as the Gun Control Act, does include bump stocks, and other devices like it. However, many argue that bump stocks do not technically alter a firearm or allow more than one shot to be fired with a single trigger pull.

The ATF’s change created a stir across the country over the decision’s constitutional nature, with many outraged at essentially being labeled criminals overnight. Many argue the change is unlawful, stating that establishing criminal liability is solely a congressional job and that the ATF should not be able to circumvent their authority. Before the ATF’s sudden change, they had never classified bump stocks as machine guns.

The NCLA’s Initial Case

The New Civil Liberties Alliance is classified as a nonpartisan, nonprofit civil rights group that was founded by Philip Hamburger to protect the rights of the citizens of the United States from any administrative government agency or group. Recently, they have focused their efforts on the banning of bump stocks.

The NCLA’s recent appeal follows their first case that was filed in September 2021 September 2020, under NCLA’s Michael Cargill, which was the beginning of their fight against the ban of bump stocks. However, The U.S. District Court for the Western District of Texas disagreed with the NCLA’s case that the ATF’s relabeling of bump stocks was unconstitutional or unlawful.

The NCLA’s Appeal

Now, the NCLA is appealing their argument that Congress already drew lawful differences between firearms that shoot one round with each successive trigger pull versus machine guns, which can shoot multiple rounds of ammunition continuously with a single trigger pull. They argue that, under these distinctions, a bump stock should not be seen to alter a firearm into an automatic weapon, as they do not change a weapon’s rate of fire.

The central thesis of their argument— made in its opening statement in the U.S. Court of Appeals for the Fifth Circuit in Cargill v. Wilkinson, et al.—is that the ATF went over the heads of Congress to change statutory law and are, therefore, unconstitutional. As a result, they are asking the Fifth Circuit court to reverse the district court’s decision.

The NCLA has also stated that they believe the executive branch is present to execute laws, not implement them. With the United States government made up of three branches—the executive, legislative, and judicial branch—checks and balances have been present ever since the Nation was formed. It will be interesting to track the outcome of Michael Cargill v. Robert M. Wilkinson and what it means for congressional power.