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Why the Justice Department’s move to ban bump stocks is unlikely to work

The Justice Department announced over the weekend that it had begun taking steps to effectively halt the sale of bump stocks, stopping short of calling the move an all-out ban. However, the decision is unlikely to go very far without congressional intervention.

“Today the Department of Justice submitted to the Office of Management and Budget a notice of a proposed regulation to clarify that the definition of ‘machinegun’ in the National Firearms Act and Gun Control Act includes bump stock type devices, and that federal law accordingly prohibits the possession, sale, or manufacture of such devices,” Justice Department officials wrote in a statement on Saturday.

In that same statement, Attorney General Jeff Sessions claimed the administration was simply following through on President Trump’s previous promises.

“President Trump is absolutely committed to ensuring the safety and security of every American […],” Sessions said.

The announcement came two weeks after Sessions told reporters his department would be making an announcement on the matter, in the wake of a school shooting in Parkland, Florida that left 17 dead. President Trump had claimed earlier that week that he would use executive power to ban bump stocks — modification devices which allow a semi-automatic firearm to mimic the firepower of a fully automatic weapon — if lawmakers failed to act on the matter.

“I’m writing that out myself,” Trump said at a meeting with the nation’s governors. “I don’t care if Congress does it or not. I am writing it out myself.”

Despite their popularity, attempts to ban bump stocks have so far been fraught with complications. In the wake of a mass shooting in Las Vegas last October which left 58 people dead, legislators on both sides of the aisle came together calling for the modifications — which had been used by the Las Vegas gunman — to be outlawed. However rifts quickly appeared, with Republicans and the National Rifle Association (NRA) insisting that the responsibility fell to the Justice Department and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Democrats pushing for legislative measures.

“We think the regulatory fix is the smartest quickest fix and I’d frankly like to know how it happened in the first place,” House Speaker Paul Ryan (R-WI) said at the time.

Sen. Dianne Feinstein (D-CA) immediately criticized that notion, tweeting, “The ATF does NOT have the authority to address bump-fire stocks — and has made this point clear to Congress MULTIPLE times.” In a related op-ed, she quoted a letter from ATF officials themselves, explaining that bump stocks were “legally not considered machine gun conversion devices and ‘are not subject to the provisions of federal firearms statutes.’”

Under the provisions Feinstein cited, the Justice Department would essentially need Congress to reclassify bump stocks as machine guns before it could successfully regulate them.

Citing the National Firearm Act of 1934, ATF defines a machine gun as “any weapon which shoots, is designed to shoot, or can be readily restored to [automatically] shoot” more than one shot with a single trigger pull. By that standard, rifles modified with a bump stock are not considered machine guns — or automatic firearms — because the trigger must be engaged every time the user wants to fire a round.

That’s not for lack of trying on ATF’s part, of course. “We could not find a way to classify [a bump stock-modified firearm] as a machine gun,” ATF senior technical expert Rick Vasquez told The Trace in October, after “months of testing the devices and studying the law.”

According to Vasquez, ATF officials “tested the product; consulted applicable laws, including the Gun Control Act of 1968 and the National Firearms Act; and wrote an evaluation” before coming to their conclusion. “It was a monumental job,” he told the outlet.

Pointing to criticism from NRA chief Wayne LaPierre and White House counselor Kellyanne Conway, who blamed ATF for not banning bump-stocks in the wake of the Las Vegas shooting, Vasquez added, “We did the right thing by the letter of the statutes. There’s a tragedy that happened and nothing can change that. But to try to put the blame on us, it really irritates me.”

Several Democratic lawmakers have attempted to address this issue in recent years. In 2013, Sen. Feinstein introduced a bill that would have halted the sale of military-style “assault” weapons that could accept a detachable stock; it also would have banned all bump or “slide-fire” stocks. As Vox notes, the proposal stalled following fierce push-back among Republicans and some Democrats and was never brought to a vote.

In October last year, Feinstein — whose daughter nearly attended the concert where the Las Vegas shooting took place — once again introduced legislation to ban bump stocks, but the measure stalled after Congress failed to address it.

“This isn’t going to stop, members, it’s going to continue,” she said on February 15, one day after the Parkland shooting. “And we become culpable when we do nothing to stop it.”

For their part, the NRA and many Republicans have chosen instead to fix their criticism on Democrats, including President Obama, who they blame for approving bump stocks in 2010. However, even that argument is mostly flawed: as ThinkProgress reported last year, the company that initially sought approval to manufacture and sell bump stocks — Slide Fire — originally misled the ATF on the device’s purpose, claiming that the modifications would “assist persons whose hands have limited mobility to ‘bump-fire’ an AR-15 rifle.” As one former ATF agent put it, the request was “a total scam.

It’s unclear how the Justice Department plans to actually regulate the sale of bump stocks or prevent them from getting into the wrong hands under this new OPM directive, or whether Attorney General Sessions’ directive is even legal under current law. For now, the president appears confident that the move will work, despite its obvious flaws.

“…Bump Stocks will soon be out,” Trump tweeted on Monday.

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