So the DOJ wants to ban bump stocks. Easier said than done

NBC News is reporting that a new rule will be published in the Federal Register next week banning the sale of bump stocks. With the support of both the President and the Attorney General, there will be a ninety-day period for public comments, after which the rule will go into effect. Not only will sales of the devices be banned, but there is no grandfather clause included, so current owners of the devices will be ordered to “surrender them, destroy them, or otherwise render them permanently inoperable.”

The Bureau of Alcohol, Tobacco, and Firearms determined earlier that bump stocks should not be classified as machine guns, because the weapons they were attached to still required a separate trigger pull for each round fired.

But in proposing the new rule Friday, the Justice Department said the earlier ruling “does not reflect the best interpretation of the term ‘machine gun.’”

Weapons classified as machine guns are grandfathered and may be kept if they were legally possessed before the Gun Control Act of 1968 was passed. But because no bump stocks existed before the law was passed, the proposed rule said, gun owners who have the devices now “would be required to surrender them, destroy them, or otherwise render them permanently inoperable.”

Passing the rule is the easy part since this doesn’t require any congressional action and there’s nothing forcing the White House to actually read or take heed of any of the comments offered. Making it stick, however, is another question. It’s a near certainty that the rule will be immediately challenged in court and a judge may issue an injunction barring enforcement of the rule until the case is complete. Would the challenger prevail? As the Washington Post reminded everyone yesterday, we’ve already had this argument once and the bump stock owners came out on top.

In 2010, ATF decided it could not regulate bump stocks because officials said the devices did not meet the definition of a machine gun. A 1986 law bans the sale of machine guns manufactured after 1986 and restricts the sale of such guns before that year.

ATF officials concluded that bump stocks did not fall under the law because they did not permanently alter a gun’s trigger mechanism.

I’ve long felt that Second Amendment questions don’t really come into play when we’re discussing accessories to firearms which aren’t part of the inherent structure of a weapon making it functional. For this reason, I don’t see a #2A argument against bans on suppressors, for instance. Without a suppressor, the weapon is still functional and it didn’t come with one originally. (I still think such a ban is fruitless and a bad idea because suppressors are quite useful and deal with health issues, but that doesn’t make it a Second Amendment argument.)

That doesn’t mean that we shouldn’t ban bump stocks, assuming we can actually do it legally. These items are just bad news. I don’t know if such a ban is legal (and neither does the ATF apparently, as noted above) but it’s a good idea if the rule can pass constitutional scrutiny. Bump stocks are devices which serve no purpose beyond converting a perfectly legal firearm to something which functions like a banned weapon. The real question is whether or not we can ban people from owning one or only using one.

Just to play devil’s advocate here for a moment, keep in mind that the bump stock is an inert item. By itself, it’s incapable of causing any harm (or doing much of anything for that matter) aside from having somebody hit you in the face with it. Regardless of what it’s inventor intended it to be used for, until it’s attached to a suitable rifle it may as well be used as a doorstop.

Taking that argument one step further, does a rifle become illegal once the bump stock is attached? The definition of semiautomatic as opposed to fully automatic is that the firearm must have the trigger pulled for each shot fired to be semiautomatic. That’s technically still the case even after you attach the bump stock. You’re just pulling the trigger really, really fast.

That leaves us with the question of whether an otherwise harmless object can be outlawed because its obvious purpose is to do something illegal. There don’t seem to be that many parallels in the American legal system. One which jumps to mind is the history of so-called “wine bricks” which were sold during prohibition. Adding water to them only produced grape juice, which was perfectly legal. But they also came with a “warning” telling you not to add a few other things and leave it in a cool, dark place for 21 days or an illegal beverage might result. Those were never banned to my knowledge, but I also don’t see any evidence that the government ever tried to ban them.

We may find out the answer to all these questions in the next couple of years. Once the rule goes into effect and is challenged, the courts will have to sort it out for us. I’ll confess to feeling a bit of trepidation no matter which way it goes. While I find the concept of bump stocks disconcerting, letting the government ban them could open the door to all sorts of additional Big Brother mischief.