President Donald Trump issued a memorandum Feb. 20 that pinned blame on his predecessor for determining bump stocks were legal, writing, “Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess, I sought further clarification of the law.”
Likewise Kellyanne Conway, a counselor to the president, told CNN in October, “It was President Obama’s ATF, the Bureau of Alcohol, Tobacco and Firearms, in 2010 that decided not to regulate this device. That should be part of the conversation and part of the facts that you put before your viewers.”
But documents obtained by BuzzFeed News show the Trump administration made the very same determination in April 2017 as the Obama administration had before, finding bump stocks, which can help guns fire more frequently, could not be banned under existing federal law.
Trump sought to ban the devices only after political pressure grew last October, when a man in Las Vegas used a bump stock to enhance his semiautomatic rifle, killing 58 and injuring 851 people in about 10 minutes, putting the devices under national scrutiny.
“The Administration’s attempts to place blame for Las Vegas on the Obama ATF don’t pass the smell test, since the Trump ATF has done exactly the same thing — as did ATF under Bush before them both,” Adam Skaggs, the chief counsel of Giffords Law Center, a gun control group, told BuzzFeed News.
"Instead of owning up to his dangerous record on guns, President Trump has once again ignored reality in an attempt to pin the blame on President Obama,” he said.
Giffords and Democracy Forward, a progressive organization, obtained the letter and other documents from the Justice Department by filing a request under the Freedom of Information Act. Federal officials initially failed to produce the records, but the groups sued and shared the documents with BuzzFeed News.
Bump-fire stocks and similar instruments allow semiautomatic rifles to fire more rapidly by using pressure from the shooter’s body to push back against the gun’s recoil, quickly triggering another shot.
Officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives — a division of the Justice Department known as ATF — have found the devices do not make the guns fully automatic. Pressure must be applied to the gun from behind in addition to pulling the trigger, therefore evading a ban on machine guns under the National Firearms Act and Gun Control Act, ATF officials have said over the years.
In a letter dated April 6, 2017 — posted in full here — Michael Curtis, chief of the Firearms Technology Industry Services Branch of the ATF, sent a letter to a bump stock manufacturer, saying its product was not prohibited.
“Since your device does not initiate an automatic firing cycle by a single function of the trigger, FTIB finds it is NOT a machinegun under the NFA, 26 U.S.C. § 5845(b) or the amended GCA, 18 U.S.C. § 921(a)(23),” Curtis wrote.
Another set of ATF documents lists several instances, going back to 2003, in which officials determined bump stocks and similar devices were found to comply with federal law, including the determination on April 6, 2017.
The Justice Department and White House did not respond to requests from BuzzFeed News to comment on the April 2017 letter, respond to Giffords’ or Democracy Forward’s criticisms, or explain why Trump administration officials had failed to mention they once held the same position as the Obama administration, or how their legal determination has changed since last year.
Since the Las Vegas massacre, the Trump administration has taken two key steps toward regulating bump stocks. In December, the ATF began accepting comment on a rulemaking proposal, saying in a notice in the Federal Register that “ATF has issued a total of 10 private letters” since 2008 concluding that bump stocks could not be regulated as machine guns. That notice did not indicate ATF issued at least one of those letters under Trump.
Most recently, on March 10, the Justice Department announced it notified the Office of Management and Budget of a proposed regulation that would define bump stock–type devices as illegal machine guns.
The proposed regulation has not been released, but it is expected to contain the administration's explanation for how the devices can be banned now — and how that thinking can run counter to previous positions.
That explanation is eagerly awaited by Sen. Chuck Grassley, Republican of Iowa and chair of the Judiciary Committee, who raised the question in a Dec. 6 hearing.
“[D]uring the Obama Administration the ATF determined that bump stocks are legal,” Grassley said at the time. “A number of members of Congress, led by Senator Heller of Nevada, recently wrote the ATF to ask it to revisit its decision ... I think the Committee deserves to know why the ATF decided that its classification of bump stocks during the Obama administration was incorrect.”
Grassley did not respond to a question from BuzzFeed News about whether he knew the Trump administration reached a concurring view last April.
The National Rifle Association has also tried to place focus on the previous administration for maintaining the devices’ legality, issuing a statement that reads, “Despite the fact that the Obama administration approved the sale of bump fire stocks on at least two occasions, the National Rifle Association is calling on the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to immediately review whether these devices comply with federal law.”
Corey Ciorciari, the policy and strategy director of Democracy Forward, told BuzzFeed News, “President Trump has shown he's more interested in keeping the gun lobby happy than keeping our kids and communities safe,” he said.
It is unclear at what point federal officials first made made an alternative analysis on bump stocks.
In another document, the ATF sent Attorney General Jeff Sessions’ office a memo Oct. 5, 2017, titled “Legality of ‘Bump-Fire’ Rifle Stocks.” The memo is mostly redacted in records, but several emails related to the memo Oct. 4–5, 2017, are not redacted. The email conversations do not indicate there is new information, or fresh legal analysis, suggesting that bump stocks could be prohibited.
The ATF’s long-standing assertion that bump stocks cannot be banned under existing law will make any regulation reversing that stance susceptible to being nullified in court, according to David Chipman, who served 25 years as an agent in the ATF and is now a senior policy adviser at Giffords.
“Clearly they could be ordered to make a different ruling, but that doesn’t mean that ruling would stand up in court,” Chipman told BuzzFeed News. ATF agents who wrote the previous letter could be brought in to testify on why bump stocks are allowed by current law, even if the ATF agents personally believe they should be banned, he said. “It's all in writing already.”