The Constitutionality of the Proposed Ban on Bump-Fire Stocks

Jacob Waechter*

            On October 1, 2017, the United States experienced the deadliest mass shooting in its history when a single gunman in Las Vegas managed to kill fifty-eight people and wound hundreds more.  Tina Bellon, Las Vegas Shooting Victims File Lawsuit Against Bump Stock Makers, Reuters (Oct. 10, 2017, 1:58 PM),  The use of at least twelve bump-fire stocks allowed the shooter, Stephen Paddock, to fire hundreds of rounds into a crowd of people at a country music concert in a matter of only ten minutes.  Tory Newmyer & Christian Davenport, NRA Stops Short of Supporting a Legal Ban on ‘Bump Stocks, Wash. Post (Oct. 8, 2017), term=.aa522450c671.

Bump-fire stocks are firearm attachments that “allow semiautomatic rifles to operate as if they were fully automatic machine guns.”  Bellon, supra.  Clearly, bump-fire stocks are extremely controversial since Congress amended the Firearms Owners’ Protection Act to ban the possession or transfer of automatic machine guns in 1986.  18 U.S.C. § 922(o)(1) (2012).  Congress is currently debating a proposed bill that aims “to prohibit the manufacture, possession, or transfer of any part or combination of parts that is designed and functions to increase the rate of fire of a semiautomatic rifle.”  H.R. 3999, 115th Cong. (2017).  This article explores whether such a ban would be constitutional under existing law.

I. Governing Law

In Heller, the United States Supreme Court held that the Second Amendment protected the possession of firearms in common use for the lawful purpose of self-defense.  District of Columbia v. Heller, 554 U.S. 570, 627 (2008).  The Court also clearly indicated that it supports the prohibition of certain classes of weapons that are dangerous and unusual.  See id. (“[L]imitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”).  Under a Heller analysis, courts first have to determine whether the firearms affected by legislation are in common use and “typically possessed by law-abiding citizens for lawful purposes.”  Id. at 624–25.

The United States Court of Appeals for the Second Circuit has indicated that semiautomatic rifles are subject to Second Amendment protections.  N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 255–56 (2d Cir. 2015) (reasoning that millions of semiautomatic rifles are owned by Americans).  The Second Circuit reasoned that although “assault weapons and large-capacity magazines are not as commonly owned as the handguns . . . . nothing in Heller limited its holding to handguns.”  Id. at 255.  In fact, the court in Cuomo held that there is a presumption in the Heller case “that the Second Amendment extends to all bearable arms” and that the State has the burden to prove otherwise.  Id. at 269.  Moreover, in Heller II, the D.C. Circuit held that semiautomatic rifles fitted with large-capacity magazines were weapons in common use.  See Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011).

Whenever a challenged law affects the protected right to own a firearm in common use, that provision is subject to heightened scrutiny.  See Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (reasoning that the court must select between strict scrutiny and intermediate scrutiny).  If the firearms are not protected under the Second Amendment, then the law is clearly valid.  Id.  The court would likely elect to apply intermediate scrutiny, which “requires the government to show that the challenged law ‘is reasonably adapted to a substantial governmental interest’” rather than strict scrutiny, the “most demanding test.”  Id. (citations omitted).  Many courts have applied intermediate scrutiny to similar Second Amendment issues and have held that public safety is a substantial governmental interest that allows for certain restrictions on protected rights.  See, e.g., id. at 121; Cuomo, 804 F.3d at 260.

II. Analysis

In order to ultimately determine the outcome of a constitutional challenge on the proposed bump-fire stock ban, we must refer to cases like Cuomo and Kolbe, where courts ruled on similar legislation.  Cuomo, 804 F.3d at 247 (considering laws from New York and Connecticut that prohibited possession of certain semiautomatic weapons and large-capacity magazines); Kolbe, 849 F.3d at 120 (considering Maryland’s Firearm Safety Act of 2013, which banned the AR-15 and other similarly styled rifles and shotguns).  Under the Heller analysis, both pro-gun advocates and gun control advocates have strong arguments regarding the proposed bill and its constitutionality.  See Cuomo, 804 F.3d at 253 (explaining the two-pronged Heller analysis).  Pro-gun advocates will rely heavily on the statistics used in Cuomo and Heller II, where courts reasoned that millions of semiautomatic rifles are owned in the United States, thereby making them weapons in common use.  Id. at 255; see also Heller, 670 F.3d at 1261 (noting that millions of AR-15s have been manufactured).  Pro-gun advocates will also attack the scope of the proposed bill and argue that its terms are overly broad.  See Sean Davis, New Bipartisan Bump Stock Bill Would Actually Ban All Semi-Automatic Rifles, Federalist (Oct. 13, 2017),

On the other hand, gun control advocates will likely employ a two-pronged argument for the proposed ban.  First, they will likely distinguish semiautomatic rifles with parts that are designed to increase the rifle’s rate of fire from semiautomatic rifles generally, which were held to be weapons in common use.  See Cuomo, 804 F.3d at 255 (determining that although semiautomatic rifles are not as commonly owned as handguns, the Heller decision is not limited to only handguns); see also H.R. 3999, 115th Cong. (2017) (prohibiting parts designed to increase a semiautomatic rifle’s rate of fire).  By distinguishing this bill’s scope from the challenged law in Cuomo, gun control advocates can make the argument that the firearms affected by the proposed bill are “dangerous and unusual” and not subject to Second Amendment protections.  See Kolbe, 849 F.3d at 131.  They will also rely on the holdings in Heller II, Cuomo, and Kolbe, where the courts collectively upheld legislation that limited access to certain types of semiautomatic rifles and large-capacity magazines.  See, e.g., Kolbe, 849 F.3d at 121; Cuomo, 804 F.3d at 269; Heller, 670 F.3d at 1264.

Although the first prong of the Heller analysis is important, the D.C. Circuit has ruled that certain legislation restricting access to weapons in common use passes intermediate scrutiny.  See Heller, 670 F.3d at 1261–64.  This holding clearly suggests that the second prong of the Heller analysis is far more important when determining the constitutionality of legislation. See id.  Although pro-gun advocates may prove that semiautomatic rifles with bump-fire stocks are weapons in common use by relying on Heller II, the proposed bill may still be constitutional.  See id.  Ultimately, the ability of the proposed legislation to withstand a constitutional challenge will pivot on the language of the bill as well as the government’s success in fulfilling its burden to prove that there is a substantial relationship and reasonable fit between the legislation and goal of preventing future deadly mass shootings.  See id. at 1262–63.

III. Conclusion

The proposed bill aims to ban any part that increases fire rate and may be too broad to pass heightened scrutiny.  H.R. 3999, 115th Cong. (2017); see also Bauer v. Becerra, 858 F.3d 1216, 1223 (9th Cir. 2017) (stating that there must be a reasonable fit between the legislation and government’s objective).  If the proposed bill’s scope is not narrowed to reflect bump-fire stocks more specifically, it is possible that the courts will find that the legislation violates the Second Amendment.  See Bauer, 858 F.3d at 1223.  However, if the proposed bill is properly redrafted, the courts will likely find that the legislature made a reasonable judgment based on substantial evidence that access to bump-fire stocks creates a public safety risk.  See id. (stating that intermediate scrutiny does not require the least restrictive means to accomplish substantial governmental interest).  Ultimately, there is a chance that this bill’s controversial language will prevent it from ever making it to Congress for a vote.  However, if the proposed bill does make it to the floor and is signed into law, the courts will have the opportunity to rule on its constitutionality.



*Jacob Waechter is a second-year law student at the University of Baltimore School of Law, where he currently serves as a staff editor for the Law Review.  He is also a member of the Royal Graham Shannonhouse III Honor Society and is recognized as a Royal Graham Shannonhouse III Honor Society Distinguished Scholar.  During the summer of 2017, Jacob worked as a legal intern for the Honorable Mickey J. Norman on the Circuit Court for Baltimore County.  Currently, Jacob is a law clerk at the Felony Review Unit in the Baltimore County State’s Attorney’s Office.


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