Law & the Courts

Congress, Not the Justice Department, Should Regulate Bump Stocks

President Trump has issued a memo directing the Justice Department “to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” He is referring primarily to “bump stocks,” contraptions that make ordinary semiautomatic rifles fire nearly as quickly as the fully automatic weapons the military uses.

We are sympathetic to the president’s ends, but we strongly object to his means. Current law does not allow the executive branch to address bump stocks. This is a job for Congress.

Congress put strong limits on fully automatic weapons in 1934, including requiring their registration, and in 1986 it banned the introduction of new automatic weapons to the civilian market entirely. Prices for pre-1986 guns have been driven into the five figures, and criminals, including mass shooters who meticulously plan their attacks, virtually never use them. (It is worth noting that this was the case long before the 1986 amendment.) Further, the Supreme Court ruled in its Heller decision that limits on “M-16 rifles and the like” do not run afoul of the Second Amendment, which historically has protected weapons in common use and not those that are “dangerous or unusual.”

It makes sense to ban the introduction of new bump stocks as well, especially after their use in the horrifyingly deadly Las Vegas attack last year. However, current law defines a “machinegun” as a “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.”

Bump stocks exploit this verbiage rather than violate it. They help the user pull the trigger repeatedly and rapidly with little effort, as opposed to making the gun fire multiple rounds when the trigger is held down. This is why even the Obama administration approved these devices for sale.

It will take action from Congress, not a new interpretation of the law from the Trump administration, to regulate bump stocks. If the Justice Department proceeds with this rule, it will be overstepping its authority and running a risk that the policy will die in court.

It is worth noting, too, that mass shootings rarely involve bump stocks — and that therefore this measure can only rarely affect their occurrence or body counts. Given the red flags waved by numerous recent shooters before their attacks and the failures of numerous government bodies to recognize them, Congress should explore other options as well, including improving the background-check system through better record-keeping, holding agencies accountable for their missteps, and possibly “gun violence restraining orders,” through which family members may bring troubled individuals to the government’s attention and temporarily prevent them from acquiring or possessing guns.

There is immense pressure right now for lawmakers to address the recent rash of mass shootings. We share the desire to stop the next Parkland or Las Vegas — in a way that is consistent with the Constitution and likely to be effective.