On June 14, 2024, the Supreme Court of the United States (SCOTUS), in a 6-3 decision on Garland v. Cargill, ruled so-called bump stocks (fixtures typically used on semi-automatic rifles to allow for greater volume of fire) were not machineguns as defined under Title 26, §5845(b) of the National Firearms Act of 1934 – NFA (as amended), and that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacked the authority to classify them as such. Associate Justice Samuel Alito, in a concurring opinion with the majority, wrote “There is a simple remedy for the disparate treatment of bump stocks and machine guns.” noting “Congress can amend the law.” This is just the latest shot fired by ATF to be slapped down in the federal courts, no doubt to the delight of the firearms enthusiasts everywhere. (Pun intended)
On June 18, 2024, and in response to the SCOTUS ruling, New Mexico Democratic Senator Martin Heinrich offered up a Senate ban of bump stocks, which failed on a procedural vote when Republican Senator Pete Ricketts objected to Sen. Heinrich’s unanimous consent effort.
During my nearly 30 years as an ATF special agent, I regularly taught what ATF sometimes calls “firearms technology” to new agents undergoing training and still occasionally do as a contractor. I was a federal court-certified firearms expert in numerous federal judicial districts and I enjoyed the ever-changing field of firearms and ammunition, including how to explain things to new agents who might know little about the subject but were expected to learn quickly and thoroughly. Because of the complexity of modern firearms, and constant efforts by firearms manufacturers and enthusiasts to push the bounds of existing firearms technology, law, and regulation, ATF relies upon a tiered cadre of specially trained agents and examiners who have far more training than the average field agent.
What Are Bump Stocks?
Simply put, bump stocks (sometimes also referred to as slide fire devices) are fixtures typically used on semi-automatic rifles, which allow for a greater volume of sustained fire than simply rapidly and continually pressing the trigger. They require no internal modification to the firearm on which they are attached. The devices harness the recoil energy of a semiautomatic firearm in such a way that the trigger is “reset” each time, and as the weapon slides back in forth in the fixture, the trigger is again pressed as the weapon “bumps into” the shooter’s finger. In this scenario, the weapon continues firing until the user intervenes, or the weapon runs out of ammunition. Typical devices require a user to exert counter pressure on the forend area of the rifle, and take some practice to use fluidly, at least in the experience of the author. Since the SCOTUS ruling, videos depicting how bump fire fixtures work have been omnipresent on television, to include in news reports covering the SCOTUS ruling.
How Did We Get Here?
ATF, by virtue of its regulatory and rulemaking authority, often has to weigh in on matters of firearms and ammunition technology, as the field is quite dynamic. Recent examples of this include “stabilizing brace” pistols, forced reset triggers, privately manufactured firearms (sometimes called “80% receivers” or “ghost guns”) and so on. An element of ATF named the Firearms and Ammunition Technology Division (FATD), based out of Martinsburg, WV has experts referred to as Firearms Enforcement Officers (FEOs) who make these classification decisions, in concert with specialist ATF attorneys. The time-consuming process called a “notice of proposed rulemaking” (NPRM) allows for public commentary on contemplated ATF actions. Based upon ATF’s research, conclusions, and public comment, final rules are then issued in the Federal Register.
In December 2018, such a process culminated in ATF making a final ruling on bump stocks, when it ruled such devices were now to be considered machineguns and subject to all the same NFA controls as other machineguns. This ruling took effect with the force of law in March 2019, and was a sea change which ran contradictory to many previous classification opinions by FATD (at the time a much smaller organization called Firearms Technology Branch). In fairness to ATF however, some earlier examinations of bump stocks that used an internal spring were classified as machineguns because the internal workings of the firearm were modified. In ruling against ATF, SCOTUS noted that because the weapon is using recoil to move into position against the shooter’s trigger finger, and the trigger is resetting each time, it does not meet the element of the NFA, which states a machinegun includes “[A]ny 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.” Emphasis added by author.
For much of ATF’s history, final rules went largely unchallenged in the court system, or when they were, ATF generally prevailed. In 1989, then President George H.W. Bush implemented an importation ban on numerous foreign made semiautomatic assault-style firearms. In 1994, under ATF Ruling 94-2, ATF reclassified certain shotguns as destructive devices as defined under the NFA, ruling they were not suitable for sporting purposes. In late 1998, ATF changed what sorts of firearms were importable at a time when AK-47, FN-FAL, HK 91, HK 93, Uzi and SIG SG550 style firearms were coming into the country in large numbers. Because of a perception by past administrations some of these rulings needed more teeth, in a number of cases Congress passed laws to create a permanent change, although the so-called semiautomatic assault weapon ban expired 10 years after it was passed in 1994.
Executive or Congressional Actions?
People of a certain age may remember the television series School House Rock about how bills are created and work their way through Congress. When a single party controlled both houses of Congress and the White House, or both parties were willing to compromise, laws dealing with firearms were successfully passed, a process that happened under presidents of both parties. Over at least the last decade though (some would say far longer) divided government has resulted in the Executive Branch (represented by the President of the United States – POTUS – as the Chief Executive) taking their own form of executive action.
On June 14, 2024, the Supreme Court of the United States (SCOTUS), in a 6-3 decision on Garland v. Cargill, ruled so-called bump stocks (fixtures typically used on semi-automatic rifles to allow for greater volume of fire) were not machineguns as defined under Title 26, §5845(b) of the National Firearms Act of 1934 – NFA (as amended), and that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacked the authority to classify them as such. Associate Justice Samuel Alito, in a concurring opinion with the majority, wrote “There is a simple remedy for the disparate treatment of bump stocks and machine guns.” noting “Congress can amend the law.” This is just the latest shot fired by ATF to be slapped down in the federal courts, no doubt to the delight of the firearms enthusiasts everywhere. (Pun intended)
On June 18, 2024, and in response to the SCOTUS ruling, New Mexico Democratic Senator Martin Heinrich offered up a Senate ban of bump stocks, which failed on a procedural vote when Republican Senator Pete Ricketts objected to Sen. Heinrich’s unanimous consent effort.
During my nearly 30 years as an ATF special agent, I regularly taught what ATF sometimes calls “firearms technology” to new agents undergoing training and still occasionally do as a contractor. I was a federal court-certified firearms expert in numerous federal judicial districts and I enjoyed the ever-changing field of firearms and ammunition, including how to explain things to new agents who might know little about the subject but were expected to learn quickly and thoroughly. Because of the complexity of modern firearms, and constant efforts by firearms manufacturers and enthusiasts to push the bounds of existing firearms technology, law, and regulation, ATF relies upon a tiered cadre of specially trained agents and examiners who have far more training than the average field agent.
What Are Bump Stocks?
Simply put, bump stocks (sometimes also referred to as slide fire devices) are fixtures typically used on semi-automatic rifles, which allow for a greater volume of sustained fire than simply rapidly and continually pressing the trigger. They require no internal modification to the firearm on which they are attached. The devices harness the recoil energy of a semiautomatic firearm in such a way that the trigger is “reset” each time, and as the weapon slides back in forth in the fixture, the trigger is again pressed as the weapon “bumps into” the shooter’s finger. In this scenario, the weapon continues firing until the user intervenes, or the weapon runs out of ammunition. Typical devices require a user to exert counter pressure on the forend area of the rifle, and take some practice to use fluidly, at least in the experience of the author. Since the SCOTUS ruling, videos depicting how bump fire fixtures work have been omnipresent on television, to include in news reports covering the SCOTUS ruling.
How Did We Get Here?
ATF, by virtue of its regulatory and rulemaking authority, often has to weigh in on matters of firearms and ammunition technology, as the field is quite dynamic. Recent examples of this include “stabilizing brace” pistols, forced reset triggers, privately manufactured firearms (sometimes called “80% receivers” or “ghost guns”) and so on. An element of ATF named the Firearms and Ammunition Technology Division (FATD), based out of Martinsburg, WV has experts referred to as Firearms Enforcement Officers (FEOs) who make these classification decisions, in concert with specialist ATF attorneys. The time-consuming process called a “notice of proposed rulemaking” (NPRM) allows for public commentary on contemplated ATF actions. Based upon ATF’s research, conclusions, and public comment, final rules are then issued in the Federal Register.
In December 2018, such a process culminated in ATF making a final ruling on bump stocks, when it ruled such devices were now to be considered machineguns and subject to all the same NFA controls as other machineguns. This ruling took effect with the force of law in March 2019, and was a sea change which ran contradictory to many previous classification opinions by FATD (at the time a much smaller organization called Firearms Technology Branch). In fairness to ATF however, some earlier examinations of bump stocks that used an internal spring were classified as machineguns because the internal workings of the firearm were modified. In ruling against ATF, SCOTUS noted that because the weapon is using recoil to move into position against the shooter’s trigger finger, and the trigger is resetting each time, it does not meet the element of the NFA, which states a machinegun includes “[A]ny 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.” Emphasis added by author.
For much of ATF’s history, final rules went largely unchallenged in the court system, or when they were, ATF generally prevailed. In 1989, then President George H.W. Bush implemented an importation ban on numerous foreign made semiautomatic assault-style firearms. In 1994, under ATF Ruling 94-2, ATF reclassified certain shotguns as destructive devices as defined under the NFA, ruling they were not suitable for sporting purposes. In late 1998, ATF changed what sorts of firearms were importable at a time when AK-47, FN-FAL, HK 91, HK 93, Uzi and SIG SG550 style firearms were coming into the country in large numbers. Because of a perception by past administrations some of these rulings needed more teeth, in a number of cases Congress passed laws to create a permanent change, although the so-called semiautomatic assault weapon ban expired 10 years after it was passed in 1994.
Executive or Congressional Actions?
People of a certain age may remember the television series School House Rock about how bills are created and work their way through Congress. When a single party controlled both houses of Congress and the White House, or both parties were willing to compromise, laws dealing with firearms were successfully passed, a process that happened under presidents of both parties. Over at least the last decade though (some would say far longer) divided government has resulted in the Executive Branch (represented by the President of the United States – POTUS – as the Chief Executive) taking their own form of executive action.
On October 2, 2017, a heavily armed lunatic utilized his hotel room in the Mandalay Bay Resort to rain fire down on concert goers in Las Vegas, utilizing multiple bump stock equipped semiautomatic rifles to do so. By the time the shooting was over, 60 people were dead, with hundreds of others injured. The crime shocked the nation, and on February 20, 2018 then President Donald Trump called for bump stocks to be banned, stating they turned legal weapons into machineguns. Mr. Trump also directed then Attorney General (AG) Jeff Sessions, in an executive order, to start the process of rulemaking to potentially ban bump stocks.
AG Sessions, in turn, delegated this action to ATF. Later, in 2018, then Acting Attorney General Matthew Whitaker announced the ATF final ruling. Former President Trump could have asked Congress to pass a law, since the 115th Congress was Republican controlled, but he chose not to try. Ironically, the Obama administration, when faced with the issue of bump stocks, stated it was up to Congress to pass a law regulating the devices. In the absence of federal legislation, 16 states and the District of Columbia created laws banning bump stocks or similar devices, accord to the Giffords Law Center to Prevent Gun Violence.
Trapped Between a Rock and a Hard Place
In conversations I have recently had with other retired ATF federal court-certified firearms experts, there is general concern ATF has stepped out of the role of being an impartial arbiter of firearms technology and has been unduly influenced by politics in making a number of recent decisions, particularly NPRMs on arm brace stocks (“Factoring Criteria for Firearms with Attached ‘Stabilizing Braces”), and the aforementioned ruling on bump stocks. Are these concerns universal? No. That said, the general agreement amongst retirees this is a problem – or at least has the appearance of impropriety – should give the current leadership of ATF pause. Absent a manifestly unlawful or unconstitutional order from POTUS or the Department of Justice (ATF’s superiors), there is necessarily tension between the duly appointed and trained experts with rulemaking authority (ATF), and an Executive (collectively POTUS and DOJ for purposes of argument) which is elected or appointed, and it would be foolish to believe politics has no impact.
An ATF director (or acting director in the case of the stabilizing brace and bump stock decisions) would find themselves being advised internally that changing positions would be highly problematic and likely reversible by the courts, while facing an Executive directive to make the change, likely based on political expediency. This tension represents a feature of our system of government, even if said expediency was driven by tragedy and well-intentioned. Ultimately, an ATF director (or actor) would have to decide to hold their ground for moral or ethical reasons or risk being fired for failing to execute an Executive directive. None have done so.
Conclusion
We are deep into an era of divided government, and incivility between the parties has reached levels many thought impossible. Against this backdrop and with a conservative SCOTUS, agencies like ATF, charged with attacking violent crime committed with firearms, fire, and explosives, finds itself yet again in the crosshairs of a public dually concerned with heinous firearm crime, yet determined to protect the Second Amendment. Given allegations of being willing to bend to the political whims of the Executive, as opposed to staying scrupulously neutral at all costs, ATF is in the unenviable position of being criticized by all sides, with little hope it can convince anyone of its neutrality again, a stance it may well have brought upon itself. Will ATF be successful? Only time can tell but the odds are overwhelming this will not be the last major rule the agency will see overturned in the months and years to come.
—
Disclaimer: SOFREP utilizes AI for image generation and article research. Occasionally, it’s like handing a chimpanzee the keys to your liquor cabinet. It’s not always perfect and if a mistake is made, we own up to it full stop. In a world where information comes at us in tidal waves, it is an important tool that helps us sift through the brass for live rounds.
COMMENTS
There are
You must become a subscriber or login to view or post comments on this article.