By Cheryl Bolen
An order to ban devices that turn legal weapons into machine guns has left the ATF with an unpalatable choice: reverse its earlier interpretation of firearms law or tell President Donald Trump that it lacks the statutory authority to regulate.
Trump on Feb. 20 issued a memorandum to the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) instructing it to ban devices like bump stocks that can be attached to semi-automatic firearms to make them fire more rapidly.
“I expect that these critical regulations will be finalized ... very soon,” Trump said at the White House shortly after signing the memo.
President Barack Obama in 2012 directed agencies to explore possible avenues for regulating guns, gun ownership, and devices. But ATF said in a 2013 letter to Congress that such devices are not subject to the provisions of federal statutes and therefore did not have the authority to restrict their lawful possession, use, or transfer.
Sen. Dianne Feinstein (D-Calif.) introduced a bill (S.1916) last October that would ban the manufacture or sale of a bump-stock device or any accessory that could accelerate a semi-automatic rifle’s fire rate. The Senate Judiciary Committee last held hearings on the bill in December.
“The ATF currently lacks authority under the law to ban bump stocks,” Feinstein said in a Feb. 20 statement. “If ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years, and that would mean bump stocks would continue to be sold.”
“Legislation is the only answer,” she said.
In addition to the legal hurdle, a hiccup in the administrative process has left some 65,000 public comments missing from the rulemaking docket (RIN: 1140-AA52).
The Justice Department on Dec. 26 issued an advance notice of proposed rulemaking requesting public comment on whether it should interpret the statutory definition of “machine gun” to include devices commonly known as bump fire stocks.
The public comment period closed on Jan. 25, with more than 35,000 comments posted to the docket. But in the presidential memorandum, Trump said more than 100,000 comments had been received.
DOJ didn’t return a call seeking comment. However, the docket site said some agencies may choose to withhold certain submissions, such as those containing proprietary information, inappropriate language, or duplicate/near duplicate examples of a mass-mail campaign.
A cursory review of recently submitted comments in the docket show many contain the same wording.
“Bump stocks do not fall within the definition of machine gun under the NFA [National Firearms Act of 1934],” said one example of a mass-mail campaign.
The ATF’s statutory authority, contained at 6 U.S.C. 531, is very narrow, the comment said. Nowhere does federal law give ATF the general authority to regulate the safety of firearms, accessories, or parts, it said.
“Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes,” Trump said in his memo. “Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit,” he said.
Yet another obstacle to this regulation is an executive order signed by Trump in January 2017 requiring agencies to cut two existing regulations for each new rule they issue, and to offset the cost of the new rule.
If Trump is serious about preventing gun violence, he should exempt the bump stock limits he is directing the DOJ to put in place from his one-in, two-out executive order, said Amit Narang, regulatory policy advocate at Public Citizen.
“There is simply no reason to hold bump stock regulations hostage while DOJ searches for other rules to cut,” Narang said.
Michael Bloomberg, the ultimate owner of Bloomberg Government, serves on the advisory board of Everytown for Gun Safety, which advocates for universal background checks and other gun control measures.
To contact the reporter on this story: Cheryl Bolen in Washington at firstname.lastname@example.org
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