December 19, 2018
The Bureau of Alcohol, Tobacco and Firearms has illegally expanded the statutory definition of a "machinegun" to include firearms that are not machineguns.
The BATF on December 18, 2018, issued a rule change that resulted from emotion and political posturing - rather than fact. It ignored the definition in the National Firearms Act that Congress made and has tried it best to make a "square peg fit a round hole" by twisting and contorting words despite the laws of physics and mechanical design. But, its a federal agency that should not even exist under the Constitution so what do you expect?
This nation is founded on the doctrine of separation of powers. Under that concept, the legislative branch makes policy and writes laws, including legal definitions, and the administrative or executive branch carries out those laws. The judicial branch, as originally established, determined whether Congressional action violated the constitution and other relatively important but public policy wise insignificant matters.
In 1934, Congress enacted as part of the tax code (keep that in mind) the National Firearms Act. The National Firearms Act, as originally written, did not "ban" anything - it merely imposed taxes on the transfers of items. So, under the National Firearms Act Congress imposed a transfer tax, a very expensive transfer tax, on firearms and other items that it wanted to regulate so that it could prosecute "gangsters" for tax evasion. Again, the act did not, because of the 2nd Amendment, ban ownership.
Under the National Firearms Act Congress defined each item that was subject to the tax. One of those items was a machinegun. This is how Congress defined a machinegun in 26 USC § 5845(b) :(b) Machinegun. The term 'machinegun' means 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. The key characteristic in the statutory definition is that a machinegun is a firearm which "shoots ... automatically more than one shot, without
manual reloading, by a single function of the trigger."
Semi-automatic weapons are not defined in the National Firearms Act even though they existed at the time.
When one of the early manufacturers of a bumpstock wanted to make sure that the device was legal, the manufacturer submitted a working sample of the device to the ATF's "Firearms Technology Branch" for an official ruling on whether it was a machinegun or otherwise regulated by federal law.
The ATF responded in writing on June 7, 2010, that a bumpstock did not meet the federal definition of a machinegun:
This is in reference to your submission and accompanying letter to the Firearms Technology
Branch (FTB), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), asking for an
evaluation of a replacement shoulder stock for an AR-15 type rifle. Your letter advises that the
stock (referenced in this reply as a " bump-stock") is intended to assist persons whose hands have
limited mobility to "bump-fire" an AR-15 type rifle. Your submission includes the following: a
block to replace the pistol grip while providing retention for the selector stop spring; a hollow
shoulder stock intended to be installed over the rear of an AR-15 fitting with a sliding-stock type
buffer-tube assembly; and a set of assembly instructions.
The FTB evaluation confirmed that the submitted stock (see enclosed photos) does attach to the
rear of an AR-15 type rifle which has been fitted with a sliding shoulder-stock type buffer-tube
assembly. 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. Accordingly, we find that the " bump-stock" is a firearm part
and is not regulated as a firearm under Gun Control Act or the National Firearms Act.
On December 18, 2018, ATF issued a press release in which it now claims that it is changing the regulations that it writes (not Congress) to expand the definition of a machinegun. In doing so, the ATF has attempted to rewrite the Congressional statutory definition to expand it beyond what Congress established as the law - that is that the weapon be capable of repeat fire by only a single "function" of the trigger. ATF states as following in its press release:
This final rule amends the regulatory definition of “machinegun” in Title 27, Code of Federal Regulations (CFR), sections 447.11, 478.11, and 479.11. The final rule amends the regulatory text by adding the following language: “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Furthermore, the final rule defines “automatically” and “single function of the trigger” as those terms are used in the statutory definition of machinegun. Specifically,
“automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as a result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through the single function of the trigger;
“single function of the trigger” means single pull of the trigger and analogous motions.
Despite the efforts of ATF, the physical fact is that the firearm remains a semi-automatic, the fact remains that the firing mechanism of a semi-automatic physically resets with each shot, and the fact remains that the trigger has to be "functioned" after each mechanical reset in order to fire the next round. All the bumpstock does is, as noted in 2010, allow that process to be more rapid than the average shooter might do without such a device.
Certainly, some may say that bumpstock are not that effective as a firearm addon. Some might say that no one needs a bumpstock. Some might say that this is not an issue on which to fight.
But others might realize that this is a serious constitutional violation of the separation of powers doctrine. This is a serious "precedent" for how a government agency - rather than an elected Congress - can write "regulations" to ban firearms, ammunition, accessories even perhaps how you hold a firearm or how fast you shoot it in order to make your exercise of rights that are declared protected by the 2nd Amendment subject to arbitrary, emotional and capricious federal agencies in the name of "safety" or "reasonable need".
At least one national organization, Gun Owners of America, has already filed suit. Others may as well and TFA is looking into whether it, as a state entity, should do so or whether it should lend financial and other support to GOA in this matter.
If you want to do what you can to protect the rights that are declared inviolate by the 2nd Amendment, it is important to be involved and let your state and federal elected officials know where you stand. It is also important that you join and help TFA as we fight the battles that are within our scope and mission because shenanigans like this will arise with state and local government agencies as well.
John Harris
Executive Director
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