The Department of Justice’s proposed rule to ban bump stocks by declaring them to be machine guns opened up its public comment period back in March. The deadline to submit comments is 11:59PM on June 27. Comments can be submitted at https://www.regulations.gov/document?D=ATF-2018-0002-0001. In order to be considered, comments must reference docket number ATF 2017R-22. DOJ is specifically looking for the following:
ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the scope of this proposed rule and the definition of “machinegun.” ATF also requests comments on the costs and benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits. Further, ATF requests public comment on the reasonableness of the assumption that retailers of bump-stock-type devices are likely to be businesses with an online presence. In addition, ATF specifically requests comments regarding how ATF should address bump-stock-type devices that private parties currently possess, and the appropriate means of implementing a final rule.
All comments must reference the docket number ATF 2017R-22, be legible, and include the commenter’s complete first and last name and full mailing address. ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.
ATF will carefully consider all comments, as appropriate, received on or before the closing date, and will give comments received after that date the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date. ATF will not acknowledge receipt of comments.
If you’re outraged that the government would unilaterally ban legally owned products that do nothing wrong, further infringing the God-given right to bear arms recognized by the 2nd Amendment, then it’s worth your time commenting on the upcoming ban, even if you don’t own a bump stock. You could make comments such as these, suggested by the Virginia Citizens Defense League.
“I fully oppose this ruling. The shooter’s trigger finger is what activates the trigger, whether firing with a bump stock or with one’s bare hands. No part of the bump stock touches the trigger, only the shooter’s trigger finger. ATF’s insistence otherwise is merely playing politics and hurts their credibility.”
And:
“I fully oppose this ruling. If the bump stock made a semi-automatic rifle fully automatic, then holding the gun with only the trigger-finger hand while squeezing and holding the trigger should cause the gun to repeatedly fire shots. It doesn’t do that and therefore the bump stock has clearly NOT converted a semi-automatic rifle into a machine gun.”
Or you could submit something longer like the comment below. But when it’s so easy to comment on such a clear infringement of rights, there’s no excuse not to make at least some sort of comment. So go to Regulations.gov and get your comment in before the deadline.
NB: The limit for online comments is 5,000 characters. If your comment is longer than that, you’ll need to save your comment as a Word document of PDF file and upload it.
I write in opposition to the Department of Justice’s (DOJ) determination that bump stocks are machine guns as defined in the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA), and as expressed in ATF 2017R-22. DOJ’s determination is both logically and factually flawed. DOJ’s own document states that the agency was given a conclusion to come up with and is now working to provide justification for that conclusion:
“The President then directed the Department of Justice, working within established legal protocols, ‘to dedicate all available resources to complete the review of the comments received [in response to the ANPRM], and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.’ Id. [83 FR 7949] Publication of this NPRM is the next step in the process of promulgating such a rule.” (Section III)
Thus DOJ is not examining the case of bump fire stocks on its merits but rather working backwards to justify a decision that it at odds with the US Constitution, the letter of the law as currently written in the US Code, and basic reason.
DOJ’s argument that bump stocks are machine guns hinges in large part on the “single function of the trigger” phrase from the definition of a machine gun at 26 U.S.C. 5845(b): “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.”
DOJ goes on to state that:
“ATF has now determined, based on its interpretation of the relevant statutory language, that these bump-stock-type devices, which harness recoil energy in conjunction with the shooter’s maintenance of pressure, turn legal semiautomatic firearms into machineguns. Specifically, ATF has 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. 26 U.S.C. 5845(b). ATF’s classifications of bump-stock-devices between 2008 and 2017 did not include extensive legal analysis of these terms in concluding that the bump-stock-type devices at issue were not ‘machineguns.’ The statutory definition of machinegun includes bump-stock-type devices—irrespective of whether the devices harness recoil energy using a mechanism like an internal spring or in conjunction with the shooter’s maintenance of pressure—because these devices enable a semiautomatic firearm to fire ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ Id. This proposed rule is the appropriate mechanism for ATF to set forth its analysis for its changed assessment.” (Section III)
DOJ also mentions previous criticism of its position:
“Numerous persons commented that bump-stock-type devices do not fall under the statutory definition of ‘machinegun because, when attached, they do not change the mechanical functioning of a semiautomatic firearm, and still require a separate trigger pull for each fired round.’ They noted that bump firing is a technique, and pointed to many other ways in which a shooter can increase a firearm’s rate of fire without using a bump-stock-type device.
The Department disagrees.” (Section IV)
Finally, DOJ states that:
“Specifically, the Department proposes to amend 27 CFR 479.11 by defining the term ‘single function of the trigger’ to mean ‘single pull of the trigger.’ The Department further proposes to amend these regulations by defining the term ‘automatically’ to mean ‘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.’ Finally, the Department proposes to clarify that the definition of a ‘machinegun’ includes a device that allows semiautomatic firearms 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 (commonly known as bump-stock-type devices).” (Section V)
The Department may disagree with its critics, but it is wrong, as demonstrated by picking apart its faulty arguments and reasoning from the following passages.
1. DOJ Asserts: “The relevant statutory question is whether a particular device causes a firearm to ‘shoot * * * automatically more than one shot, without manual reloading, by a single function of the trigger.’ 26 U.S.C. 5845(b). Bump firing and other techniques for increasing the rate of fire do not satisfy this definition because they do not produce an automatic firing sequence with a single pull of the trigger. Instead, bump firing without an assistive device requires the shooter to exert pressure with the trigger finger to re-engage the trigger for each round fired.” (Section IV)
Response: Bump firing is a technique which a bump stock only assists a shooter in performing. In the case of a firearm that does not have a bump stock installed, bump firing may be initiated either by pulling the trigger with a finger or by putting forward pressure on the firearm with the support hand so that the trigger is pulled into a rigid finger or the finger pulled onto the trigger, depending on your perspective. DOJ appears to believe that there is such a thing as “bump firing without an assistive device,” but this debatable.
The support hand, for one thing, is assistive. The butt of a firearm may also be placed against a shoulder, hip, wall, recoil pad, or other “assistive device” to help harness the recoil energy of the firearm and move it forward so that the trigger contacts the trigger finger again to fire the next round. A bump fire stock merely aids this process by providing a firmer surface against which the firearm can rebound, a more even path for the firearm to move, and an extension ledge which helps move the finger off the trigger to allow the trigger to reset, but does not fundamentally alter the technique and process of bump firing. In general, any firearm that can be fired semiautomatically can also be bump fired, either with or without a bump stock attached.
Comparing the technique and process of bump firing between a firearm that has a bump stock installed and a firearm that does not have a bump stock installed, there is no difference at all either in the internal operation of the firearm or in the external actions of the shooter. In both cases the process can be initiated with a single pull of the trigger, and in both cases the firearm is allowed to move backward, moving the trigger away from the trigger finger, before the firearm is allowed to rebound forward so as to allow the trigger finger to make contact with the trigger again to fire the next round.
Since a bump stock merely assists the shooter in performing a technique that DOJ recognizes “do[es] not satisfy this definition” of a “machinegun,” then a bump stock cannot in any reasonable way be classified as a machine gun.
If DOJ asserts that a bump stock turns a semiautomatic firearm into a machine gun, then it can only be because a bump stock assists in the technique of bump firing. Therefore it must be because of the technique of bump firing itself that bump stocks are now to be classified as machine guns. Were bump stocks not to assist in the technique of bump firing then they would not be classified as machine guns.
But because the mechanical function of a semiautomatic firearm with a bump stock attached and the mechanical function of a semiautomatic firearm without a bump stock attached are identical, it then follows that a semiautomatic firearm without a bump stock attached must therefore also be classified as a machine gun.
Since DOJ clearly does not believe, based on the above cited passage, that a semiautomatic firearm without a bump stock attached is a machine gun, then DOJ’s assertion that bump stocks are machine guns already suffers from an internal inconsistency related to DOJ’s apparent lack of understanding of the physical and mechanical processes that take place during the act of bump firing.
2. DOJ Asserts: “The bump-stock-type devices described above, however, satisfy the definition. ATF’s classification decisions between 2008 and 2017 did not reflect the best interpretation of the term ‘automatically’ as used in the definition of ‘machinegun,’ because those decisions focused on the lack of mechanical parts like internal springs in the bump-stock-type devices at issue. The bump-stock-type devices at issue in those rulings, however, utilized the recoil of the firearm itself to maintain an automatic firing sequence initiated by a single pull of the trigger. As with the Akins Accelerator, the bump-stock-type devices at issue cause the trigger to ‘bump’ into the finger, so that the shooter need not pull the trigger repeatedly to expel ammunition. As stated above, ATF previously focused on the trigger itself to interpret ‘single function of the trigger,’ but adopted a better legal and practical interpretation of ‘function’ to encompass the shooter’s activation of the trigger by, as in the case of the Akins Accelerator and other bump-stock-type devices, a single pull that causes the weapon to shoot until the ammunition is exhausted or the pressure on the trigger is removed. Because these bump-stock-type devices allow multiple rounds to be fired when the shooter maintains pressure on the extension ledge of the device, ATF has determined that bump-stock-type devices are machinegun conversion devices, and therefore qualify as machineguns under the GCA and the NFA.” (Section IV)
Response: DOJ is attempting to have its cake and eat it too, asserting that an initial pull of the trigger is a “single pull of the trigger” and that subsequent pulls of the trigger are not a “pull of the trigger” but rather a “bump.” DOJ’s comments furthermore do not address the fundamental difference between semiautomatic and fully automatic (machine gun) operation.
In a machine gun, there is a sear or similar mechanical device internal to the firearm that keeps the hammer from being captured by a trigger or disconnector hook as long as the trigger is kept pulled back. In a semiautomatic firearm there is no such sear, therefore even if the trigger is pulled back the hammer will be caught after a single round is fired and the trigger must be released to reset and then be pulled again in order to release the hammer to fire the next round. Installing a bump stock on a semiautomatic firearm does not alter that fundamental mechanical operation of a semiautomatic firearm.
DOJ is attempting to classify the initial pull of a trigger as the “single pull of the trigger” but subsequent “bumps” of the trigger not to be pulls. That is a false dichotomy and one that is without merit.
If DOJ asserts that a “bump” is not a “pull” then the firing sequence of a semiautomatic firearm equipped with a bump stock (or a semiautomatic firearm not equipped with a bump stock) need not be initiated by a “pull” of the trigger but rather by a “bump” due to forward pressure on the forearm of the firearm, meaning that a bump stock can cause, according to DOJ’s interpretation of “pull,” more than one shot to fire automatically with zero “pulls” of the trigger.
DOJ would then object that because a bump stock “can” have its firing sequence initiated by a single pull of the trigger that it would qualify as a machine gun. The response would be that that is no different than the standard bump firing technique, so either all semiautomatic firearms are actually machine guns or none are. (See response in Section 1 above.)
Finally, a firearm to which a bump stock has been affixed may still be fired in the conventional manner of bump firing without any pressure being placed on the extension ledge. A firearm to which a bump fire stock has been affixed and to which pressure is applied only to the extension ledge will not fire, contrary to DOJ’s assertion above. In order to fire, pressure must be applied to the trigger, either with or without the finger contacting the extension ledge. The sole purpose of the extension ledge is to push the finger off the trigger so that the trigger can reset and be pulled again to release the hammer to fire the next round.
Again, there is no mechanical difference in function between a semiautomatic firearm bump fired with a bump stock or without a bump stock. In both cases the trigger must be manipulated a single time for each round that is fired. If the trigger is not manipulated then the firearm will not fire a round.
3. DOJ Asserts: “The interpretation of the phrase ‘single function of the trigger’ to mean ‘single pull of the trigger’ reflects ATF’s position since 2006, and it is the best interpretation of the statute. The Supreme Court in Staples v. United States, 511 U.S. 600 (1994), indicated that a machinegun under the NFA ‘fires repeatedly with a single pull of the trigger.’ Id. at 602 n.1. This interpretation is also consistent with how the phrase ‘single function of the trigger’ was understood at the time of the NFA’s enactment in 1934. For instance, in a congressional hearing leading up to the NFA’s enactment, the National Rifle Association’s then-president testified that a gun ‘which is capable of firing more than one shot by a single pull of the trigger, a single function of the trigger, is properly regarded, in my opinion, as a machine gun.’ National Firearms Act: Hearings Before the Committee on Ways and Means, H.R. 9066, 73rd Cong., 2nd Sess., at 40 (1934). Furthermore, and as noted above, the Eleventh Circuit concluded that ATF’s interpretation of ‘single function of the trigger’ to mean ‘single pull of the trigger’ ‘is consonant with the statute and its legislative history.’ Akins v. United States, 312 F. App’x 197, 200 (11th Cir. 2009). No other court has held otherwise.” (Section V)
Response: If DOJ wants to interpret “single function of the trigger” to mean “single pull of the trigger,” then that needs further clarification. A “pull” is defined as an “act of pulling something.” (Oxford Dictionaries) The verb “pull” means to “[e]xert force on (someone or something) so as to cause movement towards oneself.” Thus a “pull of the trigger” means to exert force on the trigger so as move the trigger towards the shooter. And a trigger that is moving towards the shooter is being pulled.
As explained in the response in Section 2 above, DOJ appears to be claiming a distinction between the initial pull of the trigger and subsequent pulls, claiming that the subsequent exertions of force on the trigger so as to cause movement towards oneself are not actually pulls but “bumps.” A bump is a “light blow or a jolting collision.”
A pull, as something that exerts force so as to cause movement towards oneself, implies intent to do so, otherwise it would be characterized as an accidental or unintentional pull. Thus a “pull of the trigger” means that the shooter intends to move the trigger towards himself.
A bump, by contrast, implies accidental, incidental, or other non-intentional physical contact. As the intent of the shooter using a bump fire stock is to continue exerting force on the trigger after the first round is fired (otherwise the firearm would not fire further rounds), it cannot be said that those subsequent exertions of force are accidental or unintentional, thus they are more accurately described as pulls, not bumps. Therefore DOJ’s attempt to create a dichotomy between pulls and bumps fails both on physical grounds as explained in the response in Section 2 above as well as on definitional grounds.
4. DOJ Asserts: “Finally, it is reasonable to conclude, based on these interpretations, that the term ‘machinegun’ 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. When a shooter who has affixed a bump-stock-type device to a semiautomatic firearm pulls the trigger, that movement initiates a firing sequence that produces more than one shot. And that firing sequence is ‘automatic’ because the device harnesses the firearm’s recoil energy in a continuous back-and-forth cycle that allows the shooter to attain continuous firing after a single pull of the trigger, so long as the trigger finger remains stationary on the device’s ledge (as designed). Accordingly, these devices are included under the definition of machinegun and, therefore, come within the purview of the NFA.” (Section V)
Response: If the firearm were to continue “firing without additional physical manipulation of the trigger by the shooter” then DOJ would indeed be reasonable in concluding that a device that allowed a 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” is indeed a machine gun. But as explained in the response in Section 2 above, it is not possible with a semiautomatic firearm, whether a bump fire stock is affixed or not, to continue firing without additional manipulation of the trigger. In bump firing, whether with or without a bump stock attached, each round fired requires a separate instance of physical manipulation of the trigger. If the trigger finger “remains stationary on the device’s ledge” of a firearm equipped with a bumpstock, the firearm still will not fire again after the first pull unless the trigger is pulled again.
The fact that DOJ is attempting to amend the definition of “machinegun” so that it “includes bump-stock-type 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 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” is mind-boggling. DOJ’s definition of bump stocks that it intends to include in 27 CFR 447.11, 27 CFR 478.11, and 27 CFR 479.11 describes a type of bump stock that does not exist. It is almost as though DOJ is inviting a legal challenge so that the courts will determine that DOJ’s characterization of bump stocks is flawed.
Essentially the entirety of DOJ’s argument can be summarized as follows:
1. Bump firing does not make a semiautomatic firearm a machine gun because each round fired requires physical manipulation of the trigger by the shooter.
2. Attaching a bump stock and operating it means that a semiautomatic firearm only requires the first round fired be through physical manipulation of the trigger by the shooter and subsequent rounds do not require physical manipulation of the trigger.
3. Therefore bump stocks enable a firearm to “shoot, automatically more than one shot, without manual reloading, by a single function of the trigger” and are “machineguns” manufactured post-1986 and thus not able to be purchased by, owned by, or transferred to private individuals.
Although the argument is logically consistent, the factual error in point 2 leads to an erroneous conclusion, as demonstrated in the responses to DOJ’s assertions above. While I realize that legality and legal definitions are often opposed to truth and reality, and while I do not expect that logic and reason will prevail against those who are operating as instruments of the President’s will in order to justify a foreordained conclusion, I cannot allow such a clear and obvious error to go without comment. It is my hope that DOJ will reevaluate its position in light of both my comments and those of others who have undoubtedly pointed out the same errors, and decide not to pursue the issuance of a rule banning bump stocks.