Legally Armed: ATF Issues Final Rule on Bump Stocks

By JOHANNA REEVES, ESQ.

On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a final rule amending its regulations to classify bump-fire-type stocks and bump stocks as “machine guns.” Because the rule defined the terms “automatically” and “single function of the trigger,” both of which were undefined in the National Firearms Act (NFA) and the Gun Control Act of 1968 (GCA), ATF reasoned the new rule clarified that bumps stocks are machine guns “because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” Because of the GCA’s general prohibition on the possession of machine guns manufactured after 1986 under 18 U.S.C. §922(o), with few exceptions, anyone in possession of a bump stock after March 26, 2019, the date the new rule took effect, can be charged with a felony.

This is one of the most significant agency actions related to firearms since President Trump took office, and so it deserves a critical examination of the history, the regulations, the current status of pending court cases surrounding this issue and how this will impact industry.

AUTHOR’S NOTES: Except when quoting sources, this article uses the term “bump stocks” to include bump-fire-type devices. Also, except when cited by ATF, “machine gun” is referenced in this article as two words.

I. Background

The outcry against bump stocks arose out of the horrific mass shooting at the Route 91 Harvest music festival in Las Vegas on October 1, 2017. It was widely reported that the perpetrator utilized bump stocks to commit the shooting. In the aftermath of this heinous crime, U.S. gun laws again became a focus, specifically those laws related to bump stocks.

Shortly after the shooting, President Trump asked for a review of how ATF was regulating bump stocks. In response to this request, ATF published an advance notice of proposed rulemaking and request for comment (82 Fed. Reg. 60,929 (Dec. 26, 2017) (the ANPRM) in which ATF articulated its intention to “interpret the statutory definition of ‘machinegun’ in the NFA and GCA to clarify whether certain devices, commonly known as ‘bump fire’ stocks, fall within that definition.” In the ANPRM, ATF defined bump stocks as “devices used with a semiautomatic firearm to increase the firearm’s cyclic firing rate to mimic nearly continuous automatic fire.” The stated purpose of the ANPRM was to gather relevant information regarding the scope and nature of the market for bump stocks.

On February 20, 2018, President Trump issued a memorandum ordering the Department of Justice to “dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” 83 Fed. Reg. 7,949. On the heels of this memorandum, ATF published a notice of proposed rulemaking (the NPRM) outlining its intention to classify bump stocks as machine guns subject to all prohibitions of the NFA and GCA. 83 Fed. Reg. 13,422 (Mar. 29, 2018).

In the NPRM, ATF also addressed its past classification of bump stocks. In 2002, the Akins Group submitted to ATF for classification its newest product, the Akins Accelerator, a rifle stock designed to be used with a semi-automatic rifle that allowed the continuous firing with a single pull of the trigger. When the shooter pulled the trigger, springs in the Akins Accelerator caused the firearm to cycle back and forth with each shot so that the trigger finger remains in a constant pull, allowing continuous firing without further action by

the shooter until the shooter takes his or her finger off the trigger or the magazine is emptied. ATF initially classified the Akins Accelerator as not a machine gun because the agency interpreted “single function of the trigger” to mean a single movement of the trigger itself as opposed to a single pull by the shooter.
In 2006, ATF reviewed the Akins Accelerator again, but this time determined the device to be a machine gun because “the best interpretation of the phrase ‘single function of the trigger’ was a ‘single pull of the trigger.’” Subsequently, ATF issued Rul. 2006-2, “Classification of Devices Exclusively Designed to Increase the Rate of Fire of a Semiautomatic Firearm.” In it, ATF determined the definition of “machine gun” “includes a part or parts designed and intended for use in converting a weapon into a machinegun and includes a device that, when activated by a single pull of the trigger, initiates an automatic firing cycle that continues until the finger is released or the ammunition supply is exhausted.”

However, between 2008 and 2017, ATF issued 10 private letter rulings that classified bump stocks as NOT machine guns. Why? According to ATF, these bump stocks were distinguished from the Akins Accelerator, either because they did not initiate automatic firing that continued until the finger is released, or because they lacked automatically functioning mechanical parts or springs and performed no mechanical function when installed. In all cases, according to ATF, the agency applied a different understanding of the term “automatically.”

As part of the preparation of the NPRM, ATF explains it had “reviewed its classification determinations for bump stocks from 2008 to 2017 in light of its interpretation of the relevant statutory language, namely the definition of ‘machinegun.’” As a result, ATF determined that these devices initiate an ‘‘automatic firing cycle sequence by a single function of the trigger because the device is the primary impetus for a firing sequence that fires more than one shot with a single pull of the trigger” and therefore was captured by the definition of “machine gun.”

II. The Final Rule

In the final rule, 83 Fed. Reg. 66,514 (Dec. 26, 2018), ATF adopted the following definitions:

• ‘‘Single function of the trigger’’ means ‘‘a single pull of the trigger,’’ considered the best interpretation of the statute and also reflected ATF’s position since 2006.
• ‘‘Automatically’’ means ‘‘as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.’’ ATF stated this interpretation reflects the ordinary meaning of that term at the time of the NFA’s enactment in 1934.
• ‘‘Machine gun’’ includes a device that allows a semiautomatic 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.

With these interpretations, ATF addressed its prior rulings on bump stocks and officially determined the devices “are ‘machineguns’ as defined in the NFA because they convert an otherwise semiautomatic firearm into a machinegun by functioning as a self-act-ing or self-regulating mechanism that, after a single pull of the trigger, harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter. Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger.”

Many have asked if ATF was going to make this determination, why couldn’t it have also issued an amnesty period or grandfathered the current ownership of bump stocks. As noted above, because ATF defined bump stocks as machine guns, the restrictions of §922(o) of the GCA apply. According to ATF, it cannot issue a grandfathering or amnesty period because “18 U.S.C. §922(o) would preclude the registration of machineguns during an amnesty period. Section 922(o) 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 §922(o).”

Without an amnesty period or grandfather-ing for current owners of bump stocks, once the rule became effective on March 26, 2019, persons in possession of bump stocks were required to either destroy the bump stocks or abandon them to the nearest ATF office. ATF made it clear in the final rule that individuals would be subject to criminal liability for possessing bump stocks after the effective date of the regulation, not for possession before. In conjunction with the publication of the final rule, ATF created a webpage with various resources for impacted industry, including possible methods of destruction.

advocates quickly filed suits in federal district court in the District of Columbia, Michigan and Utah. In their respective complaints, the plaintiffs raised several statutory and constitutional challenges, including the following arguments (stated generally to summarize for purposes of this article):

• ATF violated the Administrative Procedure Act when it promulgated the bump stock rule.
• The rule violates the Takings Clause of the Fifth Amendment to the U.S. Constitution.
• Then-Acting Attorney General Matthew Whitaker lacked authority to promulgate the rule.
• The Guedes plaintiffs also argued that the ATF rule redefined the statutory term “machine gun” to cover bump stocks and thus exceeded its rulemaking authority.

The plaintiffs also filed motions for preliminary injunctions to halt ATF from implementing and enforcing the rule while the underlying cases were pending. Courts generally view a preliminary injunction as an extraordinary remedy that should be granted only if the claimant clearly demonstrates: (1) a likelihood of success on the merits of the underlying case, (2) irreparable harm if the injunction is denied, (3) the threatened harm outweighs the harm that a preliminary injunction would cause the opposing party, and (4) the injunction would serve the public interest.

The district courts all denied the respective motions preliminary injunctions. See generally, Gun Owners of America v. Barr, No. 1:18-cv-1429 (D.M.I. Mar. 21, 2019); Aposhian v. Barr, No. 2:19-cv-37 (D. UT Mar. 15, 2019); and Guedes v. ATF, 356 F. Supp. 3d 109 (D.D.C. Feb. 25, 2019).

The plaintiffs each appealed their decisions to the Sixth, Tenth and D.C. Circuits, respectively, but as of the date of this writing, only the Guedes preliminary injunction motion has v. ATF, the Court of Appeals for the District of Columbia Circuit decided against the plaintiffs and affirmed the lower court’s denial of a preliminary injunction for failing to establish a likelihood of success on the merits. 920 F.3d 1, at 35 (Apr. 1, 2019). Because this decision is the highest to date on the bump stock rule, we will focus on the issues addressed, namely the objections to the substantive validity of the bump stock rule.

A. Should ATF’s Conclusion that Bump Stocks are Machine Guns Receive Judicial Deference? The Chevron Doctrine

In addressing the plaintiffs’ claim that ATF lacked the authority to change the definition of “machine gun” to include bump stocks, the appellate court first determined whether deference should be accorded to ATF under the “Chevron Doctrine.” This is a two-part test dating back to the landmark Supreme Court decision in Chevron U.S.A. Inc. v. Natural Res. Def. Council (1984), on which courts have relied when determining whether a federal agency should be accorded deference in statutory interpretations. Under Chevron, the first question is whether the statute is ambiguous as to whether bump stocks can be considered machine guns. If so, then the court would sustain the Rule’s conclusion that bump stocks are machine guns as long as it is reasonable. However, if Chevron is not applicable, then the court may only accept the agency’s interpretation if it is the best reading of the statute.

According to the Guedes Court, whether Chevron is applicable depends on whether the bump stock rule is a legislative rule or an interpretive rule, a distinction arising out of the Administrative Procedure Act. If a legislative rule (imposes legally binding obligations or prohibitions on regulated parties and have the force and effect of law), then Chevron deference applies. If an interpretive rule (advises the public of the agency’s interpretation or construction of a statute or regulation, but does not impose new obligations, prohibitions or requirements on regulated parties), then Chevron deference is not warranted. Guedes at 17.

Interestingly, none of the parties in Guedes, not even ATF, advocated for Chevron deference on the primary grounds that the rule is interpretive, and that deference should not be applied to agency interpretation of criminal statutes like the NFA and the GCA. According to ATF, the bump stock rule is interpretive and conveys the government’s understanding that “any bump stock made after 1986 as always been a machinegun” regardless of the previous contrary opinions ATF issued. Guedes at 19-20. However, the court disagreed with ATF’s position, that bump stock owners have always been felons, as incompatible with the rule itself, which established an effective date after which possession is prohibited. Guedes at 20 (citing to 83 Fed. Reg. at 66,523).

The court also concluded that the plaintiffs failed to demonstrate a likelihood of success in establishing a general rule against applying Chevron to agency interpretations of statutes with criminal law implications.

Applying the two-step Chevron analysis to the bump stock rule, the Guedes court determined the statutory definition of “machine gun” contains two ambiguities: the terms “single function of the trigger” and “automatically,” and ATF reasonably interpreted both terms.

B. The Guedes Dissent In Guedes, Judge Henderson concurred

in part and dissented in part. First, she disagreed with the plurality opinion that Chevron can be applied to criminal statutes, asserting “Chevron does not apply to a regulation enforced both civilly and criminally unless the regulation gives fair warning sufficient to avoid posing a rule of lenity problem. The ATF’s interpretation of ‘machinegun’ gives anything but fair warning—instead, it does a volte-face of its almost 11 years’ treatment of a non-mechanical bump stock as not constituting a ‘machinegun.’”

Second, Judge Henderson found ATF’s interpretation of “automatically” to unlawfully expand the statutory definition of “machine gun.” “The Rule’s fatal flaw comes from its ‘adding to’ the statutory definition in a way that is…plainly ultra vires.” Guedes at 43.

According to Judge Henderson, the term “automatically” cannot be read in isolation because it is modified (or limited) by the clause “by a single function of the trigger.” Referencing the language of the statute at 26 U.S.C. §5845(b), Judge Henderson states:

“Automatically … by a single function of the trigger” is the sum total of the action necessary to constitute a firearm a “machinegun.” A “machinegun” then is a firearm that shoots more than one round by a single trigger pull without manual reloading. The statutory definition of “machinegun” does not include a firearm that shoots more than one round “automatically” by a single pull of the trigger AND THEN SOME (that is, by “constant forward pressure with the non-trigger hand”). By including more action than a single trigger pull, the Rule invalidly expands section 5845(b), as the ATF itself recognized in the rulemaking. Guedes at 44 (emphasis in original) (internal citations omitted).

IV. Closing Thoughts

It will be interesting to see how these cases proceed on the merits, especially on the question of whether ATF should be accorded deference under the Chevron doctrine. In addition, it is important to note that Congress may deem it appropriate to legislatively restrict access to bump stocks. It could codify ATF’s interpretation of the terms “automatically” and “single function of the trigger,” which may eliminate the challenges to the Rule. We will continue to watch this one closely.

The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

ABOUT THE AUTHOR

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.