Are Bump Stocks Legal?

In 11 minutes, a gunman fired 1,049 rounds of ammunition into a crowd of concertgoers from his hotel room window in Las Vegas, killing 58 and injuring more than 800. He carried out the 2017 massacre with the help of a device known as a "bump stock" (or "bump fire stock"). Thirteen of his 18 rifles had such equipment, according to law enforcement officials.

Many people called for increased gun control measures against the use of rapid-fire guns and other devices, including the bump stocks used in Las Vegas. Opponents of bump stocks claimed these devices permitted the rapid fire of semi-automatic rifles. They argued that bump stocks may provide an otherwise legal rifle with lethal efficiency approaching that of military-grade machine guns.

But are bump stocks legal? The law is not clear. The federal government officially banned bump stocks, through an administrative rule change, effective March 26, 2019. But, legal challenges in the 5th U.S. Circuit Court of Appeals and the 6th U.S. Circuit Court of Appeals have overturned the bump stock ban in states included in those districts. The federal government has appealed the circuit courts' decisions to the U.S. Supreme Court. Members of Congress have also proposed new legislation.

Below is a discussion of bump stocks and the federal ban against their sale or use.

Bump Stocks: Definition

Fully automatic weapons (illegal under federal law, with some limited exceptions) are capable of firing several hundred bullets per minute. They may overheat, run out of bullets, or jam up if fired for an extended period of time. The U.S. military-issued M4 and M16, for example, fire 700 to 950 rounds per minute. Bullets are fed into the chamber and fired in rapid succession for as long as the shooter squeezes the trigger, or until the magazine is empty.

Semi-automatic firearms load and fire rounds as quickly as the shooter pulls the trigger. Bump stocks make semi-automatic weapons, such as the popular civilian AR-15, perform as if they were fully automatic.

Gun manufacturers sold bump stocks to replace the standard stocks on semi-automatic rifles. They attach to the gun's receiver (or frame). They use the kinetic energy from the rifle's recoil to "bump" the trigger back against the shooter's finger. This happens at roughly 400 rounds per minute.

In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) decided that bump stocks were a firearm accessory. They concluded that they were not machine guns subject to regulation under federal law.

Backlash and Eventual Ban of Bump Fire Stocks

The Las Vegas mass shooting prompted the public, the president, and the National Rifle Association to support tighter regulation on bump stocks.

Proposals to ban the devices did not move forward in Congress. So, President Donald Trump directed the U.S. Department of Justice (DOJ) in March 2018 to define bump stocks as "machine guns." The Bureau of Alcohol, Tobacco and Firearms (ATF) then issued the rule change that banned bump stocks nationwide.

Sales of bump stocks reportedly skyrocketed after the ATF rule proposal came out in December 2018. The ban went into effect on March 26, 2019, and was retroactive. If you purchased a bump stock before the March 2019 date, the law requires you to destroy the device or surrender it to the nearest ATF office.

Possession of a bump stock device is a violation of federal law. Possessing a bump stock is the same as possessing an automatic machine gun under federal law. Possession of a bump stock is a federal felony crime and can result in up to 10 years in prison and a fine of up to $250,000.

Court Challenges to the Bump Stock Ban

The Biden administration continued efforts to maintain and defend the bump stock ban. Yet, two legal challenges went forward in the federal circuit courts.

In January 2023, the 5th Circuit, in Cargill v. Garland, held that the ATF bump stock ban was an overreach of the administrative agency's authority. Michael Cargill, a Texas gun shop owner, challenged the law on several theories that gained traction with the court.

The court found that bump stocks were not covered by the definition of a machine gun in the federal statutes. The court concluded that the bump stock does not change the mechanics of a semi-automatic rifle. The firing of each round still demands an intervening function of the trigger. A bump stock did not make the weapon automatically shoot multiple rounds by a single function of the trigger.

The court's decision also concluded that if there was confusion over the definition of a machine gun, the "rule of lenity" applies. This prevents construing an ambiguous statute against a criminal defendant.

Finally, the court found that the Chevron deference rule should not apply to statutes with criminal penalties. In Chevron v. Natural Resources Defense Council (1984), the U.S. Supreme Court reviewed a dispute over the text of an environmental law. The Supreme Court created a two-part test to determine when to give deference to an administrative agency's interpretation of a statute that falls under their authority.

Chevron provides that the courts will first review a statute to see if Congress' intent is clear. If so, that ends the inquiry. If not, and the statute is silent or ambiguous on the issue, courts will give deference to an administrative agency's reasonable interpretation.

In April 2023, the 6th Circuit issued a similar ruling, striking the bump stock ban in its states (Kentucky, Michigan, Ohio, and Tennessee). The 5th and 6th Circuit Court decisions conflict with decisions upholding the bump stock ban in other federal appeals courts, including the 10th U.S. Circuit Court of Appeals and the U.S. Court of Appeals for the District of Columbia.

The Biden administration has requested that the U.S. Supreme Court hear an appeal on these cases as there is a split in the circuit courts.

Members of Congress have renewed efforts to clarify the law and ban bump stocks. If they succeed on the legislative front, the bump stock ban could remain in place. Any new law may prevent a court ruling that would apply nationwide.

More Questions About Bump Stocks? Get Legal Help Today

Gun owners who failed to surrender or destroy a legally purchased bump stock device before March 26, 2019, could face felony charges. It may depend on whether you live in a jurisdiction where bump stocks remain banned. With the ongoing efforts to modify gun laws, you may have concerns about whether charges could be brought against you. Getting sound legal advice can help. If you have concerns, consider talking with an experienced criminal defense attorney near you.

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