Should Bump Stocks Be Illegal?

Authored by Laurence Vance via The Future Of Freedom Foundation,

In October of 2017, a gunman in a hotel room on the Las Vegas Strip fired multiple guns from his hotel window on a crowd of 22,000 gathered for an outdoor country music festival. After shooting over 1,000 rounds in about 10 minutes, 60 people lay dead, and more than 860 people were injured before the gunman took his own life. The incident was the deadliest mass shooting committed by an individual in the United States.

Naturally, even while the dead bodies were still warm, gun-control advocates began clamoring for more and stricter gun-control laws—especially when it was discovered that the shooter had used a bump stock.

Slide Fire Solutions SSAK-47-XRS-RH Bump Fire Stock mounted on a GP WASR-10/36 AK-47. Licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

A bump stock is a device that when attached to a semiautomatic rifle allows it to more rapidly fire bullets by harnessing the rifle’s recoil, but it does not turn a semiautomatic weapon into an automatic one. Between 2010 and 2018, Americans spent more than $100 million purchasing an estimated 520,000 bump stocks.

Until the Las Vegas shooting, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) classified bump stocks as a “firearm part” not subject to federal regulation. Only two states had banned bump stocks prior to the shooting, but since then, about 15 more states and the District of Columbia have banned them.

But it’s not just Democrats and progressives who were advocating more gun-control laws after the Las Vegas shooting. After the shooting at Parkland High School the following year, and at the instigation of then-President Donald Trump, the ATF announced that it would reclassify bump stocks as machine guns subject to the National Firearms Act of 1934 and the Gun Control Act of 1968. Tweeted Trump: “As I promised, today the Department of Justice will issue the rule banning BUMP STOCKS with a mandated comment period. We will BAN all devices that turn legal weapons into illegal machine guns.”  The final rule issued by the ATF to ban bump stocks was published in the Federal Register on December 26, 2018. It banned new sales and required current owners to destroy or surrender their bump stocks to the government.

The ban, however, was just overturned by the U.S. Supreme Court in the case of Garland v. Cargill.

Michael Cargill, a Texas firearms store owner, sued the ATF in 2019 in the U.S. District Court for the Western District of Texas. He maintained that the ATF lacked authority to issue the final rule because its interpretation of what is a machine gun conflicted with the statutory definition. The suit was dismissed in 2020, and in 2021, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit upheld the ban. That opinion, however, was vacated in 2022, and the case was reheard en banc, then reversed in 2023. Upon appeal to the U.S. Supreme Court, the 2018 final rule was vacated in a 6–3 decision.

Wrote Justice Clarence Thomas in his majority opinion:

A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does. Even with a bump stock, a semiautomatic rifle will fire only one shot for every “function of the trigger.” So, a bump stock cannot qualify as a machinegun.

We conclude that a semiautomatic rifle equipped with a bump stock is not a “machinegun” because it does not fire more than one shot “by a single function of the trigger.”

A bump stock is not a “machinegun” for another reason: Even if a semiautomatic rifle with a bump stock could fire more than one shot “by a single function of the trigger,” it would not do so “automatically.”

Predictably, Justice Thomas was joined by conservative justices John Roberts, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, and Neil Gorsuch. And just as predictably, liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. “Today’s decision to reject that ordinary understanding will have deadly consequences,” said Justice Sotomayor.

The Supreme Court certainly made the right decision. As Justice Thomas also wrote in his opinion:

For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) took the position that semiautomatic rifles equipped with bump stocks were not machineguns under the statute. On more than 10 separate occasions over several administrations, ATF consistently concluded that rifles equipped with bump stocks cannot “automatically” fire more than one shot “by a single function of the trigger.”

And as Justice Alito wrote in his concurring opinion:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b). But an event that highlights the need to amend a law does not itself change the law’s meaning.

The Supreme Court’s decision struck a blow to the bureaucratic administrative state that makes its own laws independent of Congress, although Congress rarely does anything about it.

Democrats in Congress are already trying to pass legislation to institute a federal ban on bump stocks. Republicans in Congress, many of whom supported a bump stock ban when Trump was president, are now opposing legislation to reinstate the ban. As usual, Republicans are wetting a finger and holding it up to see which way the political winds are blowing.

The issue before us, then, is whether bump stocks should be illegal.

There is no question that Congress could pass legislation to ban bump stocks, just like Congress has passed legislation to ban all sorts of things and all manner of activities. Although such a ban would clearly be unconstitutional, in reality, the Constitution has nothing to do with it. Congress has been passing unconstitutional legislation for over a hundred years; otherwise we wouldn’t have Social Security, Medicare, Medicaid, the Fair Labor Standards Act, the Elementary and Secondary Education Act, federal job training programs, the war on drugs, and a thousand other federal programs and agencies.

There is also no question that the states could institute a bump stock ban, as at least 15 of them have already done. This is because, as James Madison explained in The Federalist, No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” Of course, it’s conceivable that such state bans might not survive a challenge under the Fourteenth Amendment.

So, should bump stocks be illegal?

Of course not.

If the guns that bump stocks are attached to are not illegal, even though they can be used to kill large numbers of people in a short time, with or without the help of a bump stock, then neither should bump stocks be illegal.

But more importantly, bump stocks shouldn’t be illegal for the same reason that no inanimate objects should be illegal.  An object—whether it be a gun, a knife, a hammer, a saw, a needle, or a pen—can be used for good or ill. Should pillows be banned because they can be used to smother someone?

The right to own a bump stock is essential to a free society. It is what you do with the bump stock that is the issue. If someone uses it to help him shoot more people, then the fault lies with him, not the bump stock.

The outrage of some family members who lost loved ones in the Las Vegas shooting over the Supreme Court’s decision is misplaced. The gunman who shot himself after killing all those people at the music festival is the culprit — not the gun, not the gun dealer that sold the gun, not the gun manufacturer, not the ammunition, not the ammunition manufacturer, not the store that sold the ammunition, and not the bump stock.