In the wake of the carnage following the Las Vegas the scores of bodies had only barely begun to cool when massive partisan finger pointing began. To be fair, Hillary Clinton was out of the box early tweeting how much worse it could have been had the shooter had a silencer. Her statement did not occur in a vacuum, Republicans were pushing a bill in Congress that very week seeking to legalize silencers. Republicans tabled the legislation, at least for now, after the Las Vegas incident. Still, Hillary Clinton was strongly criticized for “exploiting” the tragedy for political purposes.
Everyone could hear, from the numerous videos of the shooting, what sounded like full automatic fire, essentially machine gun fire.
Fully automatic weapons have been banned for a long time. When you pull the trigger on such weapons they keep firing automatically, usually at a rate of many hundreds of rounds per minute. More common are semi-automatic weapons which fire every time you pull the trigger. Usually they allow a rate of fire of only a few score of bullets per minute.
The shooter in Vegas made his weapons function like fully automatic machine guns with a completely legal adaptation called a “bump stock.” The bump stock uses the recoil of the weapon to automatically reload and fire the rifle effectively converting it (for all practical purposes) to a fully automatic weapon. Once purchased it replaces the stock on the existing rifle converting it as described. The Las Vegas shooter had an incredible 12 rifles modified in this manner.
In a legal paradox the bump stock is legal. After all, since the law has determined fully automatic weapons are too dangerous for the general public to have access to (as this incident well attests to), why is this work around conversion legal?
In the quick counter-finger pointing conservatives blamed the Obama Administration for legalizing it. CNS News said the Obama Administration gave the device a “green light,” describing the Obama Administration action as “giving the go-ahead” for bump stocks. The ever dishonest Breitbart.com asked “If ‘Bump Stock’ Was the Problem in Las Vegas, Why Did Barack Obama Approve It?” Kelly Anne Conway declared Obama’s ATF “decided not to regulate this device.”
So are they right? Did the Obama Administration, which these same conservatives claim had no respect for the 2d Amendment, really decide to not regulate the bump stock? The short answer is . . . not really.
Rather than deciding to not regulate the bump stock (which suggests discretion to do so if it wanted) the ATF determined it did not have the authority to regulate the device. It is quite obviously one thing to say “we can’t do this” vs. “we choose to not do this.” The ATF decided the former.
At issue was the authority granted the ATF to regulate firearms under the National Firearms Act. The NFA allows the ATF to regulate some firearms, in some ways. However, the NFA does not generally (with a few exceptions) allow the ATF to regulate firearm parts. So when presented the question by a bump stock manufacturer Obama’s ATF had a threshold question:
Is the bump stock a firearm (possibly subject to regulation) or a firearm part (not subject to regulation)?
Quite understandably, Obama’s ATF determined a bump stock is not, itself, a firearm but rather a part to a firearm. Thus, Obama’s ATF determined it was without authority to regulate this part to a firearm. In the words of the ATF:
“we find the ‘bump stock is a firearm part and is is not regulated as a firearm under the Gun Control Act or National Firearms Act.”
In short, because the Act does not allow us to regulate it, we cannot regulate it. Duh. This is simply a case of the Obama Administration respecting the rule of law. The problem was not with the Obama Administration, it was with a law that handcuffed the Administration. Before blaming the Obama Administration you might want to consider which party generally opposes legislation expanding the authority of the ATF to regulate in this area.
However, there is a bright side to Republicans blaming Obama for allowing bump stocks. It provides cover for Republicans to support banning these devices. Even the NRA says it supports “additional regulations” on bump stocks. Lord knows, Trump wants to undo everything Obama has done and by blaming Obama for approving bump stocks Trump (and Republicans in general) can now be fully self-righteous in un-approving them.
Though they will have to do so by changing the law, which will actually prove the Obama Administration’s conclusion it couldn’t regulate bump stocks without a change in the law, was right. If the current Republican criticism is fair then Trump could ban bump stocks by Executive Order. He can’t do that, and he won’t, because the Obama Administration was right.