On March 29, 2018, the U.S. Department of Justice published a Notice of Proposed Rulemaking (NPRM) seeking to expand the definition of the term “machinegun” to include all bump-stock-type devices. The bump-stock-type devices covered by this proposed rule would fall within the prohibition on machineguns if this NPRM is implemented. Since virtually all bump stocks were manufactured after May 19, 1986, this will cause bump stocks to be classified as post-1986 machineguns, which are illegal for most civilians to have in their possession. Bump stocks will not be “grandfathered” to make some of them legal. Their value is not going to increase like pre-1986 fully automatic firearms. Do not waste your money on purchasing bump stocks as an investment. Their value will be zero when the new rule is implemented.

Some may ask how this can happen without an act of Congress. The answer is that the statutes are not changing – only the rules are changing. Machineguns are subject to stringent statutory regulation under the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The Firearm Owners’ Protection Act of 1986 (FOPA) included a provision that effectively froze the number of legally transferable machineguns to those that were registered before May 19, 1986. These three Acts are not changing. Instead, the rules contained in the Code of Federal Regulations (CFR’s) are what will be changing. The procedure for changing CFR’s is for a federal agency to propose and publish a NPRM.

In the NPRM, the ATF adds two new sentences to the definition of a machinegun in the CFR’s as follows:

For purposes of this definition, the term “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and “single function of the trigger” means a single pull of the trigger. The term “machinegun” includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

The ATF explains that while it did classify certain bump-stock-type devices as machineguns in 2006, it came to a different conclusion on separate occasions between 2008 and 2017. In those later decisions, the ATF determined that the devices did not make a firearm fire automatically and therefore did not meet the definition of a machinegun under federal law.  However, after further review of those decisions, the ATF has conducted more extensive legal analysis and has changed its position on this issue.

If the bump-stock-type devices are reclassified as machineguns, there will be no way to register them retroactively. The proposed rule would replace prior classifications of bump-stock-type devices, including devices that ATF previously determined were not machineguns. Consequently, current possessors of these devices would be required to surrender them, destroy them, or otherwise render them permanently inoperable upon the effective date of the final rule.