Should Congress pass a bump stock ban?

A Congressional bump stock ban likely would not have bipartisan public support, would have uncertain effectiveness, and almost certainly would face Constitutional challenges that could invalidate the ban

On June 14, the Supreme Court invalidated a ban on firearm bump stocks that the Bureau of Alcohol, Tobacco and Firearms (ATF) had imposed in 2019. The Trump administration imposed the ban in the aftermath of the 2017 Las Vegas shooting, where a gunman used guns with bump stocks to kill 58 people and injure hundreds. Importantly, the Court did not hold that the ban was unconstitutional, but held that ATF exceeded its authority by classifying guns with bump stocks as machine guns, which are banned under federal law. Therefore, Congress could adopt a similar ban on bump stocks, which might survive legal challenges. Indeed, one of the six Justices who voted to invalidate the ban, Justice Alito, invited Congress to do exactly that in a concurring opinion: “The horrible shooting spree in Las Vegas in 2017 … demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machine gun, and it thus strengthened the case for amending [the current law].”

What are bump stocks?

It’s important to understand the distinctions among automatic weapons, semi-automatic weapons, and semi-automatic weapons equipped with bump stocks. With automatic weapons, when the trigger is pulled and held, the weapon continues to fire until either the trigger is released or the weapon runs out of ammunition. With semi-automatic weapons, the weapon automatically reloads after each trigger pull, but the trigger must be pulled each time to fire a round. A bump stock attaches to the frame of a semi-automatic rifle and uses the recoil from firing a round to bounce the rifle off the shooter’s shoulder and bump the trigger back into the trigger finger; so the weapon will continue to fire as long as the trigger finger is held in position and the weapon has ammunition, but the weapon is still technically firing only one round with each trigger pull.

How did ATF attempt to ban bump stocks?

After the 2017 Las Vegas shooting, the Trump Administration received intense public pressure to ban bump stocks. Indeed, this pressure was enough to prompt action from the Trump Administration despite the facts that President Trump generally strongly favored gun rights and that ATF had previously determined multiple times that bump stocks were not prohibited, stating in a 2010 letter to a bump stock manufacturer that bump stocks were not subject to federal firearm restrictions, because they were merely firearm parts. The pressure was not sufficient, however, to make it likely for Congress to ban bump stocks at that time, as some legislators and gun lobbyists opposed the idea of a ban.

In February 2018, President Trump instructed the Attorney General to adopt “a rule banning all devices that turn legal weapons into machineguns.” ATF proposed a rule to ban bump stocks in March 2018. After receiving public comments, ATF finalized the rule in December 2018 and it took effect in March 2019. The rule banned bump stocks by classifying them as “machineguns” under the National Firearms Act of 1934 because they “allow a semiautomatic weapon to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy . . . so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.”

Some gun rights groups sued to try to prevent the ban from taking effect in 2019. The Supreme Court refused to grant an immediate injunction, so the cases worked their way through the lower courts. Eventually, there was a split between the U.S. Courts of Appeal, with some upholding the ban and some rejecting it. As a result, the Supreme Court agreed to hear one of the cases, which led to the recent decision invalidating the ban as exceeding ATF’s authority under the National Firearms Act.

What does the public think about banning bump stocks?

Shortly after the 2017 shooting, surveys showed that more than 70 percent of Americans supported banning bump stocks. We are not aware of any more recent surveys about bump stocks, but it is likely that support for a ban would be lower now, because the Las Vegas shooting is less on people’s minds. However, as recently as October 2023, 56% of Americans supported stricter gun laws, so it is also likely that a majority of Americans would still favor a ban on bump stocks.

It is not likely, however, that this support for a bump stock ban would still be bipartisan. In the 2017 survey, 68 percent of Republicans supported a bump stock ban. However, in the October 2023 survey, only 26 percent of Republicans supported stricter gun laws. Therefore, even if more Republicans support continue to support a bump stock ban than support stricter gun laws generally, it is unlikely that a majority of Republicans would currently support a bump stock ban.

What do we know about the effectiveness of banning bump stocks?

Although bump stocks were banned for more than five years, it’s difficult to assess the effectiveness of a ban. The Las Vegas shooting was the first notable use of bump stocks in a mass shooting and there have been no similar instances since 2017. For that reason, a panel of experts surveyed by the New York Times in 2017 concluded that a bump stock ban would have a relatively small effect on mass shooting fatalities, as compared with other restrictions such as an assault weapon ban, a semi-automatic weapon ban, or a law requiring universal background checks.

Would a Congressional bump stock ban be Constitutional?

In its decision invalidating ATF’s bump stock ban, the Supreme Court did not even consider whether a Congressional ban would be permissible under the Second Amendment to the Constitution. Although seventeen states and the District of Columbia currently ban bump stocks, no federal court has considered whether these bans are consistent with the Second Amendment. One recent analysis concluded that this question would be “a relatively close call.” In particular, bump stocks may qualify for presumptive protection under the Second Amendment as firearm accessories that make it easier for some people to use semi-automatic weapons; a similar argument has been made in ongoing litigation about pistol stabilizing braces. If bump stocks are within the scope of the Second Amendment, the question would then be whether they are “dangerous and unusual” weapons or whether they are “in common use”; semi-automatic weapons are generally not considered to be dangerous and unusual, but fully automatic weapons are.

As noted above, Justice Alito, one of the Court’s most conservative Justices, invited Congress to adopt a bump stock ban in his concurring opinion. He also stated that “[t]here is a simple remedy for the disparate treatment of bump stocks and machine guns. Congress can amend the law ….” Although one shouldn’t read too much into Alito’s short concurrence, it does suggest that a Congressional bump stock ban may fare better at the Supreme Court than expected. After stating that bump stocks “can have the same lethal effect as a machinegun,” it may be difficult for Justice Alito to conclude that they are not “dangerous and unusual” weapons.

Conclusion

A Congressional bump stock ban would likely be supported by a majority of Americans, but not by a majority of Republicans. The effectiveness of a ban would be uncertain, because bump stocks have rarely been used in mass shootings. The Constitutionality of a ban would also be uncertain, but it seems more likely than not that the current Supreme Court would ultimately uphold such a ban.

Our grades for a Congressional bump stock ban:

Effectiveness: B-

Legal Feasibility: B

Social Acceptability: B-

Overall Grade: B-