Pressured by Trump, ATF Revisits ‘Bump Stock’ Ban
Posted March 13, 2018 7:28 p.m. EDT
Updated March 13, 2018 7:30 p.m. EDT
WASHINGTON — Days after 17 people were gunned down at a Florida high school last month, President Donald Trump vowed to overhaul some of the nation’s gun laws, promising to “do more to protect our children.”
The president announced a string of changes, including a ban of bump stock devices, which can make semi-automatic rifles fire like machine guns and were found on firearms used in October’s mass shooting in Las Vegas. The Justice Department, Trump said, was reviewing the issue and would soon move to take the devices off shelves.
But at the time, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Justice Department agency leading the legal review of bump stocks, had reached no such conclusion. Officials in the bureau’s press office appeared surprised when first asked about the president’s comments and said the agency was still determining whether it could ban the devices — which it had previously said it could not do.
Trump’s remarks had the desired effect. The Justice Department and the ATF aligned themselves with the president, backing away from the bureau’s earlier conclusion and announcing Saturday that the agency can ban bump stocks under current law, as the president had promised. On Monday, Attorney General Jeff Sessions reiterated that he had sent a draft proposal to effectively ban bump stocks to the Office of Management and Budget, which approves federal rule changes.
The reversal was the culmination of weeks of political posturing from Trump, whose public demands have repeatedly short-circuited his administration’s regulatory process and, at times, contradicted his own Justice Department. The dissonance laid bare his lack of experience in managing governing processes like regulation. And by publicly pressuring the ATF to ban the devices, legal experts say, Trump undercut the process and all but guaranteed that gun owners and gun rights groups like the National Rifle Association have grounds to sue.
“There will be lawsuits because it looks like the agency has bowed to political pressure,” said Adam Winkler, a constitutional law professor at the University of California, Los Angeles.
The ATF and Justice Department declined to comment. A senior administration official defended the process and said that the White House had consistently coordinated with the Justice Department. In the weeks leading up to Trump’s first calls to ban bump stocks, the official said, the White House knew the bureau was open to revisiting a ban.
Yet in tweets, public remarks and statements, Trump upended the time-consuming, often-overlooked federal rule-making process, which requires coordination among multiple agencies. The president dismissed it as “long and complicated,” vowing that bump stocks would be banned and that the legal review was almost finished.
“I expect that these critical regulations will be finalized, Jeff, very soon,” Trump said in the days after the Florida shooting, directly addressing Sessions while the agency was continuing its review.
As recently as last week, the public positions of the president and the bureau were out of sync. Trump announced that the “legal papers” to ban bump stocks were nearly completed and said the devices would soon be “gone.” That same day, bureau officials said that the agency was still reviewing the issue and that no final determination had been made.
Traditionally, the bureau would study existing statutes, decide that the law permits it to regulate bump stocks and then submit a proposed rule to the Justice Department. The deputy attorney general’s office would make modifications before the budget office reviewed and approved the rule change, and it would then be published in the Federal Register.
The regulation of bump stocks has strayed from that pattern. The bureau determined in 2010 that it could not regulate the devices because they could not be defined as machine guns, which are regulated under the National Firearms Act, the law that regulates firearms in the United States. To prohibit bump stocks, the agency had to contradict that earlier position, essentially saying the statute had not changed but could be read differently to include such a ban.
After the Las Vegas shooting, in which 58 concertgoers were killed by a gunman using firearms outfitted with bump stocks, public pressure grew to ban them. Justice Department and ATF officials privately stuck by their earlier conclusion that they could not outlaw bump stocks, but with little appetite to tackle gun policy in Congress, Sessions asked the ATF to review its determination.
Agencies periodically scrutinize earlier rulings and change interpretations. What set apart the bump stock evaluation, according to former bureau officials, was Trump’s overt political pressure.
“No disrespect intended, but I’m sure President Trump has no idea what exactly the authority is for ATF or the DOJ to ban these things,” said Bradley A. Buckles, who was the head of the bureau from 1999 to 2004. “In all honesty, he doesn’t know what his authority is in that regard.” And in altering its 2010 interpretation made under former President Barack Obama, the bureau could be subject to lawsuits that tie up a bump stock ban in the courts.
“The Justice Department and the ATF are going to get sued, and Trump is going to get flak,” said Josh Blackman, a professor at South Texas College of Law in Houston. “Obama was correct in his interpretation of the statute. If you want to ban bump stocks, it has to be done through Congress.”
The apparent reversal on bump stocks appears to be more political than legal, said Rick Vasquez, a former ATF official who supervised the bureau’s prior determination on bump stocks.
“They’re basically playing games with the regulations and the law right now just to make a political statement,” he said.
Other presidents have also influenced Justice Department rule making to help policies come into fruition, then watched as those rules became fodder for lawsuits. Under Obama, the Justice Department created the legal underpinnings to protect immigrants who came to the United States as children. That program, Deferred Action for Childhood Arrivals, was the subject of multiple lawsuits.