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.