Acting AG Signs New Bump Stock Ban
Devices Must Be Destroyed Within 90 Days of Rule Being Published
After months of speculation on whether such a measure could be taken under an ostensibly pro-RKBA administration, Acting Attorney General Matthew Whitaker signed a new rule today that classifies “bump stocks” as machine guns and bans their possession. The rule, set to take effect 90 days after it is published in the Federal Register – which is expected to happen this Friday – would require current owners of the devices to destroy them.
The BATFE had previously concluded that such devices were unable to be federally regulated as such because they are simply an accessory part. Following the Mandalay Bay attack in October 2017 in which the attacker allegedly used weapons equipped with such devices, President Trump prompted the DOJ to revisit the matter. AG Jeff Sessions introduced the proposed legislation in March 2018.
The new rule inaccurately concludes that these devices allow a “shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger,” making it a machine gun. Generally, under current regulations, possession or transfer of a machine gun manufactured prior to May 19, 1986 – the date on which the Firearms Owners Protection Act (and the Hughes Amendment thereof) went into effect.
The complete Final Rule can be read here. The summary of the rule reads as follows (emphasis added):
The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices […] are “machineguns” as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger. Specifically, these devices convert an otherwise semiautomatic firearm into a machinegun by functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter. Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger. With limited exceptions, the Gun Control Act, as amended, makes it unlawful for any person to transfer or possess a machinegun unless it was lawfully possessed prior to the effective date of the statute. The bumpstock-type devices covered by this final rule were not in existence prior to the effective date of the statute, and therefore will be prohibited when this rule becomes effective. Consequently, under the final rule, current possessors of these devices will be required to destroy the devices or abandon them at an ATF office prior to the effective date of the rule.
The BATFE sought public comment on the proposal, receiving upward of 100,000 comments, although passage of such a rule seems to have been a foregone conclusion with direction straight from the White House. Given the Second and Fifth Amendment concerns surrounding the issue and the time frame for it to go into effect, we expect to see a number of legal challenges to the rule.
Department of Justice Announces Bump-Stock-Type Devices Final Rule
Today, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.
Acting Attorney General Whitaker made the following statement:
“President Donald Trump is a law and order president, who has signed into law millions of dollars in funding for law enforcement officers in our schools, and under his strong leadership, the Department of Justice has prosecuted more gun criminals than ever before as we target violent criminals. We are faithfully following President Trump’s leadership by making clear that bump stocks, which turn semiautomatics into machine guns, are illegal, and we will continue to take illegal guns off of our streets.”
On February 20, 2018, President Trump issued a memorandum instructing the Attorney General “to dedicate all available resources to… propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” In response to that direction the Department reviewed more than 186,000 public comments and made the decision to make clear that the term “machinegun” as used in the National Firearms Act (NFA), as amended, and Gun Control Act (GCA), as amended, includes all bump-stock-type devices that harness recoil energy to facilitate the continuous operation of a semiautomatic firearm after a single pull of the trigger. Continue reading
Judge Brett Kavanaugh Has Earned NRA Members’ Support
NRA members can feel confident throwing their enthusiastic support behind President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Throughout his time on the bench, Judge Kavanaugh has demonstrated deep respect for the Second Amendment as construed in Justice Antonin Scalia’s landmark decision in District of Columbia v. Heller. Moreover, his record on the Second Amendment is well established. As Second Amendment scholar and University of Denver Law Professor Dave Kopel wrote earlier this week, “No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh.”
The bulk of Judge Kavanaugh’s record on the Second Amendment comes from his 2011 dissent in Heller v. District of Columbia, or Heller II. The case concerned a challenge to Washington, D.C.’s ban on commonly-owned semi-automatic rifles and the city’s onerous firearms registration regime.
Under much constitutional precedence, courts are tasked with interpreting a law’s impact on a given right by using a system of tiered balancing tests, where they weigh the government’s interest against the right at stake. Fundamental rights are tested under a strict scrutiny standard, whereby the government has the burden of showing that a given restriction serves a compelling government interest and is the least restrictive means to further that interest. Lesser infringements are tested using intermediate scrutiny, which requires a restriction to serve an important government interest and that the means of doing so are substantially related to the interest. All laws are subject to the rational basis test, whereby a given restriction must be at least rationally related to a legitimate government purpose. Continue reading
SAF Applauds Trump Nomination of Kavanaugh to Supreme Court
The Second Amendment Foundation this evening applauded president Donald Trump’s nomination of Judge Brett Kavanaugh to fill the vacancy on the United States Supreme Court created by the looming retirement of Associate Justice Anthony Kennedy.
“We’re encouraged by this nomination,” said SAF founder and Executive Vice President Alan M. Gottlieb, “because by adding Judge Kavanaugh, we might see the high court become more willing to accept and rule on important Second Amendment issues, such as right-to-carry.
“While the Supreme Court has twice affirmed in the last ten years that the Second Amendment protects a fundamental, individual right to keep a firearm for home defense,” he continued, “but the court has yet to even begin defining the right to bear arms outside of the home or business, in public.
“We know that the Court will face enormous challenges on other rights issues,” Gottlieb observed, “but the right to keep and bear arms is a cornerstone of the Bill of Rights that has set this nation apart as a beacon of freedom and liberty. It is time for the court to examine the constitutionality of various state laws that restrict the right to carry, for example, and make arbitrary decisions about who can exercise that right.
“Our courts should be the place that we can trust to safeguard our rights and promote freedom,” he added.
“We’re hoping that the nomination of Judge Kavanaugh to the court will be quickly affirmed by the Senate,” Gottlieb concluded.
Gun Owners of America Statement on Trump Nomination of Kavanaugh to SCOTUS
Erich Pratt, Executive Director of Gun Owners of America (GOA), issued the following statement on Pres. Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court:
“Gun Owners of America is optimistic that Judge Brett Kavanaugh will be a huge improvement over the retiring Justice Anthony Kennedy on many constitutional issues, including the Second Amendment.
“Initial reports suggest that Judge Kavanaugh deeply respects the Second Amendment, even though he was not the strongest of the finalists.
“Nevertheless, Judge Kavanaugh filed a pro-gun dissent in Heller II, arguing that Washington, DC’s ban on semi-automatic firearms was arbitrary and unlawful.
“In fact, his dissent was so well argued that GOA’s subsequent legal briefs have repeatedly held up his dissent as the model to follow.
“In another case, Kavanaugh correctly interpreted the Firearm Owners Protection Act to find that a defendant could not be sentenced to 30 years in prison for use of a fully-automatic firearm if he was unaware that the gun fired automatically.
“Kavanaugh also supported the prevailing opinion in the Citizens United case, which affirmed GOA’s voice in the political arena.
“GOA hopes that the Senate will confirm Kavanaugh — and that the Supreme Court will take up more Second Amendment cases, thus repealing the onerous and unconstitutional restrictions on the right to keep and bear arms that exist throughout the country.”
NRA Applauds Brett Kavanaugh’s Nomination to the U.S. Supreme Court
The National Rifle Association (NRA) applauds the nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court.
“President Trump has made another outstanding choice in nominating Brett Kavanaugh for the U.S. Supreme Court. He has an impressive record that demonstrates his strong support for the Second Amendment,” said Chris W. Cox, Executive Director, NRA-ILA. “We urge the Senate to swiftly confirm Judge Kavanaugh to the U.S. Supreme Court, just as it confirmed him to the U.S. Court of Appeals for the District of Columbia Circuit.”
During his tenure on the U.S. Court of Appeals, Kavanaugh wrote a strong dissenting opinion in opposition to Washington, D.C.’s ban on commonly owned semi-automatic firearms and registration requirement by applying an historical test consistent with Justice Scalia’s opinion in Heller.
“Judge Kavanaugh has demonstrated his clear belief that the Constitution should be applied as the Framers intended. To that end, he has supported the fundamental, individual right to self-defense embraced by Justice Scalia in the historic Heller decision. ”
“On behalf of our six million members, the NRA strongly supports Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court. We will be activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh. He will protect our right to keep and bear arms and is an outstanding choice to fill Justice Kennedy’s seat,” concluded Cox.
