How the Department of Justice Could Close the Bump Stock Loophole: The Power of the Purse

Jeanne L. Smith^*

Introduction

            “In the hands of a gunman bent on killing as many people as possible, [bump stocks] are a tool for indiscriminate murder . . . .”^[1] On October 1, 2017, the deadliest mass shooting in U.S. history occurred in Las Vegas, Nevada.^[2]Sixty-one people died as a result, and more than 850 more were injured.^[3] The entire attack spanned roughly ten minutes.^[4] To put this in perspective, the 1999 Columbine shooting lasted approximately forty-eight minutes and left fifteen dead (including the two gunmen) and twenty-three wounded.^[5] The 2022 Uvalde shooting lasted just over ninety minutes and left twenty-one people dead and another seventeen wounded.^[6] The 2018 Parkland shooting lasted less than seven minutes and left seventeen dead and another seventeen injured.^[7] The shooters in all three of these mass shooting events used semiautomatic weapons.^[8] The lone gunman attached bump stock devices to a dozen semiautomatic rifles, essentially allowing the semiautomatic rifles to simulate fully automatic fire.^[9] With this increased rate of fire, the gunman managed to inflict  an enormous number of casualties and injuries in such a short period of time.

Fully automatic weapons, which are capable of firing multiple rounds with a “single function of the trigger,”^[10]are illegal for civilians to own under the Gun Control Act (“GCA”).^[11] Semiautomatic weapons are capable of shooting only one round with each pull of the trigger.^[12] The “bump stock loophole” is the idea that it is illegal for a civilian to own fully automatic weapons, but it is legal for a civilian to own a bump stock, which allows a semiautomatic weapon to function essentially as a fully automatic weapon.^[13] This loophole creates an effective workaround to the automatic weapon ban established by the GCA because attaching bump stocks to semiautomatic weapons allows them to mimic automatic weapons by dramatically increasing their rate of fire.^[14]

Prior to the Las Vegas shooting, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) maintained that bump stocks were not regulatable as automatic weapons under the GCA and the National Firearms Act (“NFA”), ^[15]which defines the term “machinegun.”^[16] However, in 2019, ATF promulgated the bump stock ban, a regulation declaring that bump stocks and other similar devices were illegal to own under the GCA and NFA.^[17]

The bump stock ban was challenged in multiple lawsuits.^[18] Various federal circuit courts heard the issue and came to differing conclusions on the ability of ATF to regulate bump stocks under the existing statutes, creating a circuit split.^[19] On June 14, 2024, with its decision in Garland v. Cargill, the Supreme Court struck down the bump stock ban.^[20]

The Supreme Court got it right in Garland v. Cargill. While ATF has the authority to regulate bump-stock-type devices, it cannot do so under the current framework that it has chosen—by encompassing bump stocks in the definition of machinegun set forth in the GCA and NFA. However, this does not mean that these dangerous devices should be left unregulated. After a thorough analysis of the “bump stock loophole” issue, this Note will argue that the Department of Justice (“DOJ”) could use funding contingencies—the federal government’s practice of attaching conditions to the states’ receipt of federal grant funds^[21]—to encourage states to close the bump stock loophole. This Note will draw an analogy to other successful joint attempts by Congress and federal agencies to encourage states to adopt various laws through funding contingencies.

Part I of this Note gives an overview of the bump stock loophole. This includes a discussion of the mechanics of semiautomatic weapons, fully automatic weapons, and bump stocks. Part II of this Note will discuss the current law. This includes a discussion of the existing statutory scheme, ATF’s Final Rule (the bump stock ban), and statutory deficiencies. Part III of this Note discussed the current circuit split and other constitutional concerns. Part III has been edited out of this abbreviated version of the Note as the circuit split was resolved by the Supreme Court in June 2024. Part IV of this Note will advocate that states should regulate bump stocks and similar devices through their police power, but that state regulation should be encouraged through federal funding contingencies. Thus, even though the existing statutory scheme is insufficient to encompass bump-stock-type devices, bump stock ownership should still be regulated and limited by other means. 

I. The Bump Stock Loophole

A semiautomatic firearm is one that only shoots one round with each pull of the trigger.^[22] The trigger must be engaged multiple times to fire multiple shots, meaning that the trigger must be pulled and released to force a reset of the firing mechanism before firing again.^[23] A semiautomatic weapon has a firing rate of approximately three hundred rounds per minute.^[24] Automatic firearms, also known as machineguns, have the ability to fire multiple shots “automatically” and with a “single function of the trigger.”^[25] Machineguns will fire repeatedly and continuously until the magazine is spent, so long as the trigger is being depressed.^[26] Most machineguns are capable of firing at a rate of five hundred to one thousand rounds per minute.^[27]

A bump stock is a device that is fitted to a rifle in place of the standard rigid stock.^[28] A rifle stock is the piece of the firearm that the shooter shoulders.^[29] A standard rifle stock is stationary and provides support for the rifle’s receiver, absorbing most of the rifle’s recoil energy, allowing the shooter to control the rifle and enhance accuracy.^[30]

Attaching a bump stocks allows a semiautomatic firearm to simulate automatic fire by utilizing the firearm’s recoil energy, rather than the absorption of recoil energy that a standard stock provides.^[31] The shooter shoulders the bump stock and maintains constant rearward pressure on the trigger.^[32] Because the bump stock harnesses the recoil energy with the sliding stock, the device moves the firearm forward and backward.^[33] The forward and backward motion of the bump stock, combined with the shooter’s constant rearward pressure on the trigger, increases the rate of fire to that of an automatic firearm.^[34]  Attaching a bump stock to a semiautomatic weapon enables “rates of fire between 400 to 800 rounds per minute.”^[35] This is an issue because it allows civilians to legally own weapons that are, for all intents and purposes, the equivalent of machineguns. 

II. The Current Law

A. The Relevant Statutory Schemes

The NFA defines the term “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”^[36]The definition also includes “any part . . . or combination of parts designed and intended, for use in converting a weapon into a machinegun . . . .”^[37]  The NFA imposes taxes on the making and transfer of NFA firearms^[38] and requires mandatory registration of all NFA firearms with the Secretary of the Treasury.^[39]

The GCA, as originally passed in 1968, did not outlaw the ownership of machineguns.^[40] In 1986, the GCA was amended by the Firearm Owners’ Protection Act.^[41] The amended GCA states that “it shall be unlawful for any person to transfer or possess a machinegun.”^[42] It imposed both a regulatory licensing scheme and criminal penalties for the ownership or transfer of specified prohibited firearms.^[43] Congress delegated authority to the Attorney General to implement the GCA and NFA (together, the “Acts”), who then delegated the authority to ATF to implement the Acts.^[44] While neither of these Acts explicitly regulates bump stocks or similar devices, ATF has targeted bump stocks in federal regulations pursuant to its authority to implement the Acts.^[45]

B.   The Bump Stock Ban

The 2017 Las Vegas shooting prompted many bipartisan calls to action to address the legality of bump stock devices, including by then-President Donald Trump.^[46] The 2018 Parkland High School shooting renewed these calls to action the following year.^[47] ATF pronounced the “Bump Stock Ban” in 2019, a final rule^[48] (“Final Rule”) which clarified that bump stocks and other similar devices are machineguns as defined by the NFA and GCA.^[49] ATF reasoned that bump stocks fit within the statutory definition for machinegun because such devices “convert an otherwise semiautomatic firearm into a machinegun” capable of “produc[ing] automatic fire with a single pull of the trigger.”^[50]The Final Rule amended Parts 447.11, 478.11, and 479.11 of the Code of Federal Regulations, which contain definitions for the term “machinegun.”^[51] The amended statutory definitions specifically reference bump-stock-type devices that simulate automatic firing “as the result of a self-acting or self-regulating mechanism . . . through a single function of the trigger.”^[52]

In practice, bump stocks are rarely used by criminals or recreational shooters.^[53] Las Vegas remains the only major attack in which the shooter used a bump-stock-type device.^[54] However, there are many causes for concern other than just their usage in mass shootings.^[55]

C.   Statutory Deficiencies

            The existing statutory scheme attempts to fit square pegs into round holes. The definition of machinegun in the NFA is insufficient to encompass bump stocks. A technical examination of the mechanics of bump stocks supports this conclusion. A firearm can fit within the existing statutory definition of a machinegun under the NFA if it is capable of firing more than one shot automatically with a single function of the trigger.^[56] ATF has interpreted “single function of the trigger” in different ways at different times, including to mean “single movement of the trigger,” as well as “single pull of the trigger.”^[57]

Bump stocks do not allow semiautomatic firearms to repeatedly fire “automatically” with a “single function” of the trigger.^[58] The “bumping” motion of the stock, which happens very rapidly, utilizes the firearm’s recoil energy to allow the shooter’s stationary finger to depress and release the trigger repeatedly.^[59] Attaching a bump stock to a semiautomatic rifle changes only how the trigger pull is accomplished—the shooter’s finger remains stationary, but the firearm itself moves, essentially bouncing the weapon’s trigger into the shooter’s trigger finger.^[60] However, mechanically, this is multiple functions of the trigger, not singular.^[61] “The statute does not say ‘by a single function of the trigger finger’ nor does it say ‘by a single pull of the trigger in addition to external pressure from the shooter’s non-firing hand.’”^[62] Further, by the same reasoning, the process is not an “automatic” one. A semiautomatic weapon outfitted with a bump stock would not continue to fire without additional activity from the shooter. The shooter must maintain constant forward pressure on the firearm, through his shoulder, as well as constant rearward pressure on the trigger to continue firing at a rapid rate.^[63] Thus, under the plain meaning of the words “single,” “function,” and “automatically,” attaching a bump stock to a semiautomatic firearm does not allow the weapon to repeatedly fire automatically with a single function of the trigger.

A firearm can also fit within the existing statutory definition of a machinegun under the NFA if it is a device designed for the purpose of converting a firearm into a machinegun.^[64] Again, using standard statutory interpretation techniques,^[65] the term “convert” means “to change (something) into a different form or property.”^[66] Bump stocks do not result in any sort of mechanical or technical conversion within a semiautomatic firearm.^[67] Nothing in a semiautomatic weapon is being “changed” into a different “form or property” even when a bump stock is attached and the weapon is firing much more rapidly.^[68] Thus, under the plain meaning of the word “convert,” a bump stock does not convert a semiautomatic firearm into a machinegun.

There may be no meaningful difference between the terms “convert” and “simulate” when it comes to fitting bump stocks within the meaning of the NFA’s definition of a machinegun. Bump stocks allow semiautomatic weapons to fire at rates comparable to a machinegun or automatic weapon.^[69] Perhaps it should not matter when the result effectively allows civilians to own firearms with the same firing capacity as a machinegun. However, this is the avenue that ATF has chosen for regulating bump stocks. It is the language of the NFA^[70] that must be applied.

However, bump stocks remain extremely dangerous devices. That a bump stock fails to fit within the existing statutory framework does not mean that the devices should be readily accessible to civilians. As such, other avenues for outlawing bump stocks and keeping these devices off the streets should be considered.

III. The Circuit Split and Other Constitutional Concerns^[71]

IV. Analysis Arguing for Federally Encouraged State-Regulation

This Note advocates for the use of federal funding contingencies to encourage states to close the bump stock loophole. States have the authority to regulate bump stocks under their general police power. However, states should not be left without encouragement to regulate such devices. The federal government should provide incentives through federal funding contingencies to encourage states to regulate civilian ownership of bump stocks. 

Bump stocks should not be readily available to own by members of the public. Bump stocks “have no legitimate uses for hunting or sporting purposes, target shooting, or self-protection.”^[72] Bump stocks are most useful for shooting a profuse number of bullets in a short period of time.^[73] As such, there is no justifiable reason for these kinds of devices to be readily available for civilian purchase. 

A. Agencies Administering the Power of the Purse

            Congress holds the “power of the purse” through the Appropriations Clause^[74] and the Taxing and Spending Clause.^[75] Every year, Congress passes laws called “appropriations” that provide executive agencies with budget authority.^[76] When Congress passes an appropriations bill for a specific agency, federal funds become available for grants within the scope of the legislation.^[77] Grant programs must be established explicitly by legislation which details the terms and conditions of the program.^[78] Grants may be conditional or unconditional depending on whether they impose administrative requirements upon the state recipient.^[79]  Conditional grants impose administrative requirements upon state recipients, while unconditional grants do not.^[80] In this way, federal agencies are tasked with administering the power of the purse.

            The power of the purse is not unlimited. Congress may not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”^[81] However, this does not mean Congress is completely without power to encourage or financially incentivize a state to influence its policy choices to legislate or regulate in a certain way.^[82] It is widely recognized that the Spending Clause^[83] provides the federal government the legal authority to impose conditions on states’ receipt of federal grant funds.^[84]  The federal government may offer federal grant funds to states that are “contingent on the recipients engaging in, or refraining from, certain activities.”^[85]Agencies often award grants to states that include requirements or conditions for receipt of the grant money.^[86]

a. Department of Transportation

            The Department of Transportation (“DOT”) is one federal agency that has used this power of funding contingencies to persuade states to adopt federal initiatives.^[87] At issue in the landmark Supreme Court case, South Dakota v. Dole, was the 1984 National Minimum Drinking Age Act^[88]  (“NMDAA”).^[89] The NMDAA requires states to set the minimum age for purchase or public possession of alcohol to twenty-one as a condition for receiving federal funds for state highways through the DOT.^[90] The NMDAA conditions five percent of a state’s obtainable funds under specific highway grant programs.^[91] The Dole Court upheld this indirect encouragement of state action as a valid use of the spending power.^[92] This initiative was incredibly effective, as every state abides by this national minimum drinking age standard.^[93]

            The DOT has conditioned the receipt of federal funds for state highways upon other requirements as well. During his second presidential term, then-President Clinton championed a federal initiative to establish a uniform national impaired driving standard of 0.08 percent blood alcohol content (BAC).^[94] The Fiscal Year 2001 DOT Appropriations Bill made states’ receipt of a percentage of federal highway construction funds contingent on the state’s adoption of the 0.08 percent BAC impaired driving standard.^[95] This initiative was effective; all states have now adopted the standard of 0.08 percent BAC for the impaired driving limit.^[96] Some states even impose more stringent standards or zero-tolerance policies for impaired driving.^[97] Various federal courts have also upheld other federal agencies’ use of these funding contingencies when challenged under anti-commandeering principles.^[98] This power of Congress to delegate limited budget authority to agencies, and for agencies to then impose conditions upon states’ receipt of federal grant money, is widely recognized as valid.  

b. Department of Justice

            The DOJ has been known to utilize this power to encourage states to enact federal regulatory initiatives.^[99] In 2020, the Second Circuit upheld the DOJ’s imposition of three immigration-related conditions on states applying for certain grants known as “Byrne grants.”^[100] In 2009, the Western District of Louisiana upheld the DOJ conditioning states’ receipt of certain federal funds on compliance with the Sex Offender Registration and Notification Act (“SORNA”).^[101] In 2018, the Eastern District of Pennsylvania upheld a DOJ program that conditioned states’ receipt of funds on assurances that the state will “ensure that violent offenders serve a substantial portion of the sentences imposed.”^[102]

c. Limitations on the Use of Contingent Funds

            However, Congress’s power to encourage the states to act by incentivizing the receipt of public funds is not an unlimited one. The Supreme Court outlined the bounds of this power in its 1987 decision South Dakota v. Dole.^[103] In Dole, the Court established a five-part test for determining whether federal funding contingencies violated the Tenth Amendment: whether (1) the spending promotes the general welfare; (2) the condition is unambiguous and set forth prior to acceptance; (3) the condition has a connection to a federal interest in certain national projects or programs; (4) the condition violates a provision of the Constitution; and (5) the condition is not overly coercive.^[104] The Supreme Court further limited this power in its 1992 decision in New York v. United States by stressing that states must have a legitimate choice to participate in the federal program.^[105] To be sure, there have been instances in which federal courts have found that a federal funding contingency crossed the line between incentive or encouragement into unconstitutional coercion or compulsion.^[106]

B. Recommendations

            The DOJ is well suited to address the bump stock issue for multiple reasons. First, Congress has attempted to pass legislation restricting the ownership of bump-stock-type devices, but this legislation has failed.^[107] Secondly, Congress is gridlocked.^[108] Here, Congress would only need to appropriate funds to the DOJ for conditional block grants.^[109]This would require less consensus on Congress’s part than passing legislation to outlaw bump stocks outright because the appropriations bill would not entail a guaranteed bump stock ban in every state.^[110] Finally, the DOJ is well-suited to address the bump stock issue because it houses ATF.^[111]

a. Contingent Funds for Crime Prevention

            The DOJ offers many funding opportunities to states and localities through different grants, including a grant “to assist victims of crime; to provide training and technical assistance; to conduct research; and to implement programs that improve the criminal, civil, and juvenile justice systems.”^[112] The “Advancing Public Safety and Increasing Community Trust” grant is intended to invest in reducing gun crime and community violence,^[113] so it would be sensical to make its award contingent on states taking measures to reduce gun violence.

             The use of contingent funds to incentivize state policy decisions is largely well-received by the judicial branch and is effective at encouraging state action. Other federal agencies, including the DOJ, have had prior success in using funding contingencies to further national priorities. Thus, the DOJ could take this approach in regulating bump stocks by offering grant funds that are made contingent on a state’s regulation of bump stocks. The DOJ could undertake a federal initiative to minimize the permissibility and accessibility of bump-stock-type devices. 

b. The Strengths and Weaknesses of the Use of Contingent Funds

            This proposed use of funding contingencies would meet all five of Dole’s requirements.^[114] The spending, which would be the money given to states and localities through the grant, would promote the general welfare. The grant would, ideally, be aimed at reducing gun violence and increasing safety in communities. The condition of restricting bump stock ownership would be unambiguously set forth prior to a state’s acceptance of the grant funds and would have a legitimate connection to a federal interest in decreasing gun violence and increasing community safety. The condition would not violate any provision of the Constitution. As discussed earlier, it would likely not violate the Second Amendment under Heller^[115] and would satisfy the Tenth Amendment’s anti-commandeering requirements. Finally, the condition would not be overly coercive as the funds that are threatened to be withheld for noncompliance would not be substantial enough to be considered “economic dragooning” of the states under NFIB v. Sebelius.^[116]

            Under this proposed arrangement, states would have the ultimate authority as to whether to accept the federal grant funds in exchange for restricting citizen ownership of bump stocks. States have long regulated gun ownership under their general police power. Allowing the states to ultimately make the decision regarding the regulation of bump stocks would satisfy the Tenth Amendment requirement that powers not enumerated to the federal government be reserved to the states. 

            This solution is not comprehensive, as even banning bump stocks on a national level would not be a total solution to the rampant gun violence epidemic that this country faces. However, it would be a start. If the DOJ had any level of success in using funding contingencies to encourage states to regulate bump stocks, this power could potentially be used to encourage states to enact further gun control legislation. Additionally, as with any argument for more stringent gun control measures, loopholes will always exist.^[117] If a criminal wants to get their hands on a weapon or gun modifier, regardless of its legality, they will find a way to do so. But, again, the proposed approach would be a start. 

            It is possible that no states will take advantage of the funding contingency and will opt, rather, to leave the money on the table, so to speak. However, a handful of states and D.C. already restrict civilian ownership of bump stocks even without incentivizing funds available.^[118] Further, some conservative-majority states may opt to forego the incentivized funding opportunities. The vast majority of Republicans believe that gun laws do not need to be stricter, with some even going so far as to believe that the current gun laws are too strict.^[119] Assuming that some Republican-majority states may opt to forego this incentivized funding opportunity, though, a potential for loss of law enforcement funding for these states may be especially persuasive.^[120] Pushback from the more conservative states, based on Second Amendment rights, can probably be expected. More importantly, encouraging funding contingencies could be enough to push some conservative states, who would otherwise opt not to do so, to restrict bump stock ownership. 

Conclusion

The Supreme Court struck down the bump stock ban in June 2024. This Note advocated for an approach where the DOJ champions a federal initiative to outlaw bump-stock-type devices. The DOJ should encourage states to adopt this federal initiative by making the receipt of federal grant funds for law enforcement contingent on state compliance with the initiative. Other federal agencies, like the DOT, have had success with similar initiatives, such as for a national minimum drinking age and a national standard BAC for impaired driving. This would be an effective way of establishing a uniform regulation of these dangerous devices, while also satisfying Tenth Amendment requirements and anti-commandeering principles.

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^* J.D. Candidate, 2025, Indiana University Robert H. McKinney School of Law; B.S., 2021, Ball State University—Muncie, Indiana.

^[1] Brief of Giffords Law Center to Prevent Gun Violence et al. as Amici Curiae in Support of Petitioners at 5, Garland v. Cargill, 144 S. Ct. 374 (2023). 

^[2] ATF: Las Vegas Shooter Had 12 Guns Modified to Mimic Automatics, CBS (Oct. 6, 2017, 8:55 AM), https://www.cbsnews.com/news/victims-of-las-vegas-shooting-list-names-latest-update/ [https://perma.cc/75N9-9UTT%5D.

^[3] Fifty-eight people died the night of the shooting. Two victims succumbed to their wounds months after the attack. A sixty-first victim was named in the lawsuit against the shooter’s estate, but the estate’s attorney could not disclose the sixty-first victim’s identity or their cause of death. Las Vegas Shooting Victims’ Kin to Split Proceeds from Gunman’s Estate, CBS (Apr. 21, 2023, 2:51 PM), https://www.cbsnews.com/news/las-vegas-shooting-victims-kin-split-proceeds-stephen-paddock-estate/ [https://perma.cc/76RT-8YZH%5D. 

^[4] Jonathan Bernstein & Mark Gray, Five Years Since the Route 91 Massacre No One Knows a Damn Thing, Rolling Stone (Sept. 21, 2022, 9:31 AM), https://www.rollingstone.com/music/music-features/las-vegas-shooting-route-91-country-festival-1234593953/ [https://perma.cc/MF7A-WHZ9]. 

^[5] CNN Editorial Research, Columbine High School Shooting Fast Facts, CNN (Apr. 12, 2023, 3:07 PM), https://www.cnn.com/2013/09/18/us/columbine-high-school-shootings-fast-facts/index.html [https://perma.cc/5UEZ-D489].

^[6] Julia Jacobo & Nadine El-Bawab, Timeline: How the Shooting at a Texas Elementary School Unfolded, ABC News (December 12, 2022, 12:00 PM), https://abcnews.go.com/US/timeline-shooting-texas-elementary-school-unfolded/story?id=84966910 [https://perma.cc/9MBW-Z3PS].

^[7] Tony Pipitone, Florida’s Worst School Shooting by the Second, NBC Miami (Apr. 27, 2018, 6:05 PM), https://www.nbcmiami.com/news/local/marjory-stoneman-douglas-high-school-parkland-shooting-timeline/47522/ [https://perma.cc/A6M2-HGUZ].

^[8] CNN, supra note 5; Jacobo & El-Bawab, supra note 6; Pipitone, supra note 7.

^[9] CBS, supra note 2.

^[10] The Editors of Encyclopedia Britannica, Automatic Rifle, Encyc. Britannica (Aug. 11, 2023), https://www.britannica.com/technology/automatic-rifle [https://perma.cc/3YAW-JBTL].

^[11] 18 U.S.C. § 922(o)(1).

^[12] 18 U.S.C. § 921(a)(29).

^[13] Jillian Felton, Kildee Introduces Bipartisan Bill to Close ‘Bump Stock’ Loophole, ABC 12 News (Jan. 23, 2023), https://www.abc12.com/news/politics/kildee-introduces-bipartisan-bill-to-close-bump-stock-loophole/article_8ff97d8a-9b43-11ed-9db3-874e259c31c9.html [https://perma.cc/S4U5-6KCC]. 

^[14] CBS, supra note 2.

^[15] Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,514 (Dec. 26, 2018) (Final Rule).

^[16] 26 U.S.C. § 5845(b).

^[17] See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514; 27 C.F.R. §§ 447.11, 478.11, 479.11 (2019). 

^[18] See Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1 (D.C. Cir. 2019); Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020); Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023), aff’d 602 U.S. 406, 429 (2024); Hardin v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 65 F.4th 895 (6th Cir. 2023). 

^[19] Id.

^[20] Garland v. Cargill, 602 U.S. 406, 429 (2024). 

^[21] South Dakota v. Dole, 483 U.S. 203, 206 (1987).

^[22] 18 U.S.C. § 921(a)(29). 

^[23] Bump-Stock-Type Devices, 83 Fed. Reg. at 66,518.

^[24] Bevis v. City of Naperville, Illinois, 85 F.4th 1175, 1196 (7th Cir. 2023). However, this is qualified by how fast the shooter can squeeze the trigger and the capacity of the magazine. Id.; id. at 1216 (Brennan, J., dissenting).

^[25] The term “function” has been interpreted to mean both “movement” and “pull” by different authorities. Bump-Stock-Type Devices, 83 Fed. Reg. at 66,517; 26 U.S.C. § 5845(b). 

^[26] The Editors of Encyclopedia Britannica, supra note 10.

^[27] The Editors of Encyclopedia Britannica, Machine gun, Encyc. Britannica (Nov.3, 2023), https://www.britannica.com/technology/machine-gun [https://perma.cc/6JEL-BYZG].

^[28] Patrick J. Kiger, What is a Bump Fire Stock?, How Stuff Works (Nov. 29, 2018), https://science.howstuffworks.com/bump-fire-stock-rifle-automatic-weapon.htm [https://perma.cc/2ULU-7DA6]. 

^[29] “Its foremost purpose is to allow the shooter a repeatable point of contact in relation to the rifle’s aiming device.” Dave Campbell, Back to Basics: Rifle Stock Components & Designs, NRA American Rifleman (Feb. 15, 2017), https://www.americanrifleman.org/content/back-to-basics-rifle-stock-components-designs/ [https://perma.cc/6JN5-TXRL].

^[30] Id.

^[31] Id.; Bump-Stock-Type Devices, 83 Fed. Reg. at 66,518.

^[32] Bump-Stock-Type Devices, 83 Fed. Reg. at 66,518.

^[33] Think “bumping” or bouncing between the shooter’s shoulder and trigger finger. Larry Buchanan et al., What is a Bump Stock and How Does it Work?, New York Times (March 28, 2019), https://www.nytimes.com/interactive/2017/10/04/us/bump-stock-las-vegas-gun.html#:~:text=The%20stock%20“bumps”%20back%20and,the%20pistol%20grip%20while%20firing. [https://perma.cc/5WC7-XKP2]. 

^[34] Bump-Stock-Type Devices, 83 Fed. Reg. at 66,518.

^[35] Maryland Shall Issue v. Hogan, 353 F. Supp. 3d 400, 404 (D. Md. 2018). In the Las Vegas shooting, approximately ninety gunshots were recorded in ten seconds, which would average out to a rate of fire of more than 500 rounds per minute. Ninety shots per ten seconds multiplied by six (six increments of ten seconds per minute) equals 540 shots fired per minute. Buchanan et al., supra note 33.

^[36] 26 U.S.C. § 5845(b). 

^[37] Id.

^[38] NFA firearms include short-barreled rifles and shotguns, machineguns, destructive devices, and silencers. 26 U.S.C. § 5845.

^[39] 26 U.S.C. §§ 5811, 5821, 5841. 

^[40] The original act prohibited felons, fugitives, drug users or addicts, and mentally ill persons from owning guns, and prohibited the sale of guns through mail order, among other things. Pub. L. No. 90-618, 82 Stat. 1213 (1968).

^[41] Pub. L. No. 99-308, 100 Stat. 449 (1986).

^[42] 18 U.S.C. § 922(o)(1). The definition of “machinegun” in the NFA is incorporated by reference. Bump-Stock-Type Devices, 83 Fed. Reg. at 66,515; 18 U.S.C. § 921(a)(24).

^[43] 18 U.S.C. §§ 922, 923. The prohibited devices include destructive devices, machineguns, and short-barreled shotguns or rifles. 18 U.S.C. § 922(a)(4). 

^[44] Commerce in Firearms and Ammunition-Reporting Theft or Loss of Firearms in Transit (2007R-9P), 81 Fed. Reg. 1,307 (Jan. 12, 2016); 26 U.S.C. §§ 7801(a)(2)(A), 7805; 28 C.F.R. § 0.130(a). 

^[45] See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514.

^[46] Democrats’ Call to Action After Vegas Shooting Includes Plea for ‘Moral Courage’ on Gun Control Legislation, ABC News (Oct. 4, 2017, 10:55 AM), https://abcnews.go.com/Politics/democrats-call-action-vegas-shooting-includes-plea-moral/story?id=50265186 [https://perma.cc/X83M-S2VR]. 

^[47] Martin Kaste, The Politics of Bump Stocks, 1 Year After Las Vegas Shooting, NPR (Sept. 26, 2018, 5:14 AM), https://www.npr.org/2018/09/26/650454299/the-politics-of-bump-stocks-one-year-after-las-vegas-shooting [https://perma.cc/W7E7-XSKD]. 

^[48] The stated purpose of the Final Rule was “to clarify that [bump-stock-type] devices are machineguns under the NFA.” Bump-Stock-Type Devices, 83 Fed. Reg. at 66,521.

^[49] Id. at 66,514.

^[50] Id.

^[51] Id.

^[52] Id. at 66,553-4; 27 C.F.R. §§ 447.11, 478.11, 479.11. 

^[53] Kaste, supra note 47.

^[54] Devlin Barrett, Justice Department Will Ban Bump-Stock Devices That Turn Rifles Into Fully Automatic Weapons, Washington Post (Dec. 18, 2018, 4:36 PM), https://www.washingtonpost.com/world/national-security/justice-department-will-ban-bump-stock-devices-that-turn-rifles-into-fully-automatic-weapons/2018/12/18/6ee08434-02e2-11e9-b5df-5d3874f1ac36_story.html [https://perma.cc/T3PB-HYXS]. 

^[55] In the days following the Las Vegas attack, gun and ammunition retailers across the nation sold out of bump stock devices. Jamiles Lartey, Bump Stocks Sell Out Across U.S. as Ban Looms After Las Vegas Shooting, Guardian (Oct. 5, 2017, 12:32 PM), https://www.theguardian.com/us-news/2017/oct/05/bump-stocks-sell-out-across-us-as-ban-looms-after-las-vegas-shooting [https://perma.cc/D69P-8BSL]. Bump Fire Systems, one of three major U.S. bump stock manufacturers, shut their website down for more than two days following the attack, citing “high traffic volume.” Id. Furthermore, law enforcement officials have expressed concern that the unusual use of bump stocks in the Las Vegas shooting could inspire “copycat killers.” Barrett, supra note 54.

^[56] 26 U.S.C. § 5845(b).

^[57] Bump-Stock-Type Devices, 83 Fed. Reg. at 66,517.

^[58] This is accurate regardless of whether “function” is interpreted to mean “movement” or “pull”. See U.S. v. Alkazahg, 81 M.J. 764, 781 (N-M. Ct. Crim. App. 2021); Cargill v. Garland, 57 F.4th 447, 460 (5th Cir. 2023); Guedes v. ATF, 920 F.3d 1, 48 (D.C. Cir. 2019) (Henderson, J., concurring in part and dissenting in part); Aposhian v. Wilkinson, 989 F.3d 890, 895 (10th Cir. 2021) (Tymkovich, C.J., dissenting); Hardin v. ATF, 65 F.4th 895, 903 (6th Cir. 2023) (Bush, J., concurring).

^[59] Buchanan et al., supra note 33.

^[60] The motion cause by the bump stock relieves the shooter from having to manually depress and release the trigger repeatedly. See id.; Julie Vitkovskaya & Alex Horton, Trump Recommended Outlawing Bump Stocks, Here’s What They Are., Washington Post (Feb. 20, 2018, 5:12 PM), https://www.washingtonpost.com/news/checkpoint/wp/2017/10/05/what-are-bump-stocks/ [https://perma.cc/FBE5-BB54]; Guedes, 920 F.3d at 48 (Henderson, J., concurring in part and dissenting in part).

^[61] Alkazahg, 81 M.J. at 781. 

^[62] Id. at 780. 

^[63] Id. at 782.  

^[64] 26 U.S.C. § 5845(b).

^[65] Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992); Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207 (1997).

^[66] Convert, Dictionary.com, https://www.dictionary.com/browse/convert [https://perma.cc/N7T2-D7SG] (last visited Nov. 7, 2023). 

^[67] Buchanan et al., supra note 33.

^[68] A bump stock does not alter the way in which a semiautomatic firearm operates as the trigger must still be engaged multiple times to fire multiple shots. The only difference is that the bump motion created by the device propels the trigger into the shooter’s finger, rather than the shooter manually pulling the trigger. See Alkazahg, 81 M.J. at 781; Hardin v. ATF, 65 F.4th 895, 903 (6th Cir. 2023) (Bush, J., concurring); Vitkovskaya & Horton, supra note 60.

^[69] Buchanan et al., supra note 33.

^[70] A machinegun is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b).

^[71] The original draft of this Note discussed the circuit split that existed prior to the Supreme Court’s decision in Garland v. Cargill. Since the Court’s decision came down in June of 2024, this discussion is largely moot. This section also discussed other constitutional concerns, including Second and Tenth Amendment issues, as well as constitutional interpretation, that a Supreme Court decision would likely consider. As it so happens, the Garland decision was, as expected, extremely textualist (almost to the point of literalist) in striking down the bump stock ban. Though this section of my Note is now moot, I wanted to highlight that I did discuss these concerns in the original draft, written in the Spring of 2024 prior to the Garland decision.

^[72] The bumping motion caused by the bump stock will likely decrease shooter accuracy, making rifles equipped with bump stocks especially inappropriate for hunting, target shooting, and self-defense. Bump-Stock-Type Devices, 83 Fed. Reg. at 66,520.

^[73] “[Bump stocks] are only suited for spraying many bullets in a short time.” Brief of Giffords Law Center at 5, Garland v. Cargill, 144 S. Ct. 374 (2023). 

^[74] U.S. Const. art. I, § 9, cl. 7. 

^[75] U.S. Const. art. I, § 8, cl. 1. 

^[76] Glossary of Terms, U.S. House of Representatives, https://www.house.gov/the-house-explained/open-government/statement-of-disbursements/glossary-of-terms#:~:text=Appropriation%3A%20A%20law%20of%20Congress,as%20may%20be%20necessary%22). [https://perma.cc/G9V3-APCP] (last visited Oct. 17, 2023). 

^[77] Congressional Budget Office, Federal Grants to State and Local Governments, at 3 (March 2013).

^[78] (Name Redacted), Cong. Rsch. Serv., R44797, The Federal Government’s Authority to Impose Conditions on Grant Funds (2017).

^[79] Id.

^[80] Id.

^[81] Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981).

^[82] “This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State’s policy choices.” New York v. United States, 505 U.S. 144, 166 (1992). 

^[83] U.S. Const. art. I, § 8, cl. 1.

^[84] (Name Redacted), supra note 78.

^[85] Id.

^[86] Id.; 31 U.S.C. § 6304; Grant Policies, Grants.gov, https://www.grants.gov/web/grants/learn-grants/grant-policies.html [https://perma.cc/WR3W-SSH7] (last visited Oct. 18, 2023). 

^[87] See South Dakota v. Dole, 483 U.S. 203 (1987); Robert S. Kirk, Cong. Rsch. Serv., RL30508, Appropriations for FY2001: Department of Transportation and Related Agencies (2001).

^[88] 23 U.S.C. § 158. 

^[89] Dole, 483 U.S. at 203.

^[90] Alcohol Policy Information System, The 1984 National Minimum Drinking Age Act, NIH, https://alcoholpolicy.niaaa.nih.gov/the-1984-national-minimum-drinking-age-act#:~:text=The%201984%20National%20Minimum%20Drinking%20Age%20Act%2C%20%5B23%20U.S.C.,of%20receiving%20State%20highway%20funds. [https://perma.cc/37C5-ES2W] (last visited Oct. 17, 2023). 

^[91] Dole, 483 U.S. at 211.

^[92] Id. at 206–212.

^[93] National Institute on Alcohol Abuse and Alcoholism, Alcohol Policy, NIH, https://www.niaaa.nih.gov/alcohols-effects-health/alcohol-policy#:~:text=The%20Federal%20Uniform%20Drinking%20Age,State%20abides%20by%20that%20standard. [https://perma.cc/3C6R-TH4N] (last visited Oct. 18, 2023). 

^[94] President Clinton Helps Make Our Roads Safer for American Families, Clinton White House (Oct. 23, 2000), https://clintonwhitehouse4.archives.gov/textonly/WH/new/html/Mon_Oct_23_085542_2000.html [https://perma.cc/DF5E-9RDG]. 

^[95] FY2001 Department of Transportation (DOT) Appropriations Act, Pub. L. No. 106-346, 114 Stat. 1356.

^[96] Editorial Staff of Alcohol.org, BAC Legal Limits in Different States, Counties, & Cities, Alcohol.org (Oct. 25, 2022), https://alcohol.org/dui/bac-limits/ [https://perma.cc/6QJP-MJ63]. 

^[97] Utah lowered the standard for impaired driving from 0.08% to 0.05% BAC. 3 States That Have the Toughest DUI Laws in the U.S., DriversEd.com (Feb. 16, 2022), https://driversed.com/trending/toughest-dui-laws-us [https://perma.cc/7Z33-8ABG]. Maryland imposes “zero tolerance” laws for impaired driving for any underage driver. Id. 

  ^[98] The principle of anti-commandeering is the idea that the Tenth Amendment prohibits the federal government from forcing the states to enact specific legislation or carry out the federal government’s will. See e.g. Fullilove v. Klutznick, 448 U.S. 448, 454 (1980) (upholding the Department of Commerce’s Public Works Employment Act, which required ten percent of federal funds received by state or local grantees to be used for minority-owned business enterprises); Horn Farms, Inc. v. Johanns 397 F.3d 472, 477 (7th Cir. 2005) (upholding the U.S. Department of Agriculture’s “Swampbuster” legislation, which conditioned the receipt of federal agriculture subsidies on recipients’ preservation of wetlands); Jindal v. United States Dep’t of Educ., 2015 U.S. Dist. LEXIS 123257 (M.D. La. 2015) (upholding the Department of Education’s Race to the Top Program, which awarded “incentive grants” only to states who “improved State academic content standards and student achievement standards” and who “enhanced the quality of academic assessments”); West Virginia v. United States HHS, 132 F. Supp. 2d 437, 444 (S.D. W. Va. 2001) (upholding the Department of Health and Human Services’ conditioning of states’ receipt of federal Medicaid funds on the implementation of an estate recovery program). 

^[99] See generally New York v. United States DOJ, 951 F.3d 84 (2nd Cir. 2020); United States v. Wakefield, 2009 U.S. Dist. LEXIS 98462 (W.D La. 2009); McCoy v. Smith, 2018 U.S. Dist. LEXIS 111700 (E.D. Pa. 2018). 

^[100] Byrne grants are formula grants, which Congress allocates a fixed amount of funding for and determines how the funds will be allocated among recipients, as well as how recipients may demonstrate eligibility for the funding. New York v. DOJ, 951 F.3d at 92. Through Byrne grants, Congress annually distributes more than 250 million dollars for state and local law enforcement funding. Id. Recipient states have wide discretion in using the Byrne grant funds for any law-enforcement-related purpose. Id. at 93. However, no applicant state is statutorily entitled to receive Byrne grant funds—rather, applicants must satisfy several immigration-related statutory requirements. Id. at 93–4. States had to comply with three immigration-related conditions to be eligible to receive the Byrne grant funding. Id. at 94. First, the state had to certify its compliance with 8 U.S.C. § 1373, which provided that no government entity could prohibit a government entity from sending to or receiving information from the Immigration and Naturalization Service regarding citizenship or immigration status of any individual. Id. at 94–5. Second, the state was obligated to have a policy in place for “informing federal authorities, upon request, of the scheduled release date of an alien in the [state’s] custody.” Id. at 95. Third, the state was obligated to have a policy in place “allowing federal authorities to meet with incarcerated aliens in order to inquire about their rights to remain in the United States.” Id. The Court found that the conditions were able to withstand a Tenth Amendment anti-commandeering challenge because the threatened loss of a state’s Byrne award amounted to roughly a tenth of a percent (0.1%) of a state’s annual funding. Id. at 116. 

^[101] U.S. v. Wakefield, 2009 U.S. Dist. LEXIS 98462 at 19 (W.D La. 2009). SORNA mandates that states engage in interjurisdictional sharing of sex offender information when an offender is required to register in more than one jurisdiction. Id. at 14. SORNA also requires that states make it a felony offense for a sex offender to fail to register. Id. at 14–5. Any state that fails to comply with SORNA’s requirements will not receive ten percent of the funds that it would otherwise receive under the Omnibus Crime Control and Safe Streets Act. Id. at 17. The Court concluded that SORNA’s conditions on states do not violate the Tenth Amendment because states are not commandeered to comply with the statutory requirements. Id. Instead, the Court acknowledged, that SORNA merely provided a financial incentive to comply with SORNA’s sex offender registration requirements. Id.

^[102] McCoy, 2018 U.S. Dist. LEXIS 111700 at 17 (E.D. Pa. 2018). The Violent Offender Incarceration and Truth in Sentencing Program (“VOITIS”) offers state funding opportunities for the construction or expansion of prisons for violent offenders. Id. States are only eligible to receive these funds upon committing to implement “truth-in-sentencing laws” that require violent offenders to serve a substantial portion of their sentence. Id. The Court found that these conditions upon a state’s receipt of VOITIS funds did not violate the Tenth Amendment because states had a legitimate choice whether to accept the funds and because the funding was reasonably calculated to address the federal government’s interest in protecting the public. Id. at 17–8.

^[103] South Dakota v. Dole, 483 U.S. 203, 206–212 (1987).

^[104] Id. at 207–208.

            ^[105] New York v. U.S., 505 U.S. 144, 175 (1992). In this case, the Supreme Court held that while Congress has the Constitutional authority to use financial incentives to encourage states to adopt desired regulatory schemes, it does not have the authority to simply direct the states to adopt the regulatory schemes. Id. Congress cannot leave states with the two “choices” of either enacting the regulation or a direct order from Congress to do so. Id. at 176. This is not a real choice. “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Printz v. United States, 521 U.S. 898, 933 (1997) (quoting id. at 188). The line between compulsion, on the one hand, and encouragement or incentivization, on the other, is a thin one.

^[106] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 588 (2012). In National Federation of Independent Businesses v. Sebelius, the Supreme Court struck down the Affordable Care Act’s (“ACA”) Medicaid expansion as unconstitutionally coercive. Id. at 519. If a state opted to participate in Medicaid expansion, the ACA increased federal funding to states to cover the cost of the expansion. Id. If a state refused to participate in Medicaid expansion, the entirety of its Medicaid funding would be withheld. Id. at 520. The Court emphasized the large amount of federal funding at stake if a state refused to comply with Medicaid expansion: more than ten percent of a state’s overall budget. Id. at 523. The Court referred to this as “economic dragooning” which made it only theoretically voluntary for a state to comply with the Medicaid expansion. Id. Thus, the Court has expressed that in order for this federal power to be sustained under Congress’s taxing and spending power, the states must have a legitimate choice in whether to participate in the federal regulatory program and the amount of funding made contingent on administrative requirements must be fairly small in relation to a state’s overall budget.

^[107] Closing the Bump Stock Loophole Act of 2021, 117 H.R. 5427, 117th Cong. (2021). This signals that it would be a difficult task for Congress to pass legislation restricting the ownership of bump stocks in the future.

^[108] The split between the two primary political parties, in both chambers, is nearly equal. Jennifer E. Manning, Cong. Rsch. Serv., R47470, Membership of the 118^th Congress: A Profile (2023). This general lack of consensus between the parties results in an unproductive legislative branch.

^[109] The stated purpose of the appropriations bill could be to minimize the occurrence of deadly mass shootings and gun crime generally.

^[110] The DOJ would then have substantial discretion for the use of those funds.

^[111] 28 U.S.C. § 599A(b). ATF has expertise on issues involving firearms. Agencies and Roles in the U.S. Department of Justice (DOJ), Dow Jones, https://www.dowjones.com/professional/risk/glossary/regulatory-bodies/department-of-justice/ [https://perma.cc/W4U3-2BB7] (last visited Oct. 16, 2023); id. As ATF has already passed the Final Rule banning bump-stock-type devices, the DOJ has signaled its willingness to restrict ownership of bump stocks.

^[112] Grants, U.S. Dept. of Justice, https://www.justice.gov/grants#:~:text=The%20Department%20of%20Justice%20offers,improve%20the%20criminal%2C%20civil%2C%20and [https://perma.cc/9N56-V2ZG] (last visited Oct. 18, 2023); U.S. DOJ, Opportunities & Awards, Office of Justice Programs, https://ojp.gov/funding/explore/current-funding-opportunities#nmf2kg [https://perma.cc/3SDW-V9MF] (last visited Nov. 23, 2023). For example, the following are some of the grants that the DOJ currently offers to state and local applicants: “Supporting Reentry and Behavioral Health Responses;” “Transforming the Juvenile Justice System and Empowering Youth;” “Countering the Rise in Hate Crime;” “Advancing Public Safety and Increasing Community Trust;” and “Ensuring Rights, Access and Equity for Crime Victims.” Id. As the DOJ offers many grant opportunities to state and local recipients, the funds made contingent on the restriction of bump stock ownership could come from any of these funding opportunities or other similar grants.

^[113] Id.

^[114] Dole, 483 U.S. at 207–208.

^[115] D.C. v. Heller, 554 U.S. 570, 627 (2008).

^[116] NFIB, 567 U.S. at 523.

^[117] For example, the “gun show loophole” refers to federal law not requiring unlicensed private sellers to perform background checks on prospective gun buyers. Gun Laws, Loopholes, and Violence, Brady United Against Gun Violence, https://www.bradyunited.org/issue/laws-and-loopholes#:~:text=The%20“gun%20show%20loophole”%20refers,in%20to%20fill%20the%20gap. [https://perma.cc/F8D8-J9CW] (last visited Nov. 22, 2023). 

^[118] Stefan Becket, Where Are Bump-Fire Stocks Illegal? Feds, States Weigh Bans After Las Vegas Shooting,CBS (Oct. 6, 2017, 9:30 AM), https://www.cbsnews.com/news/where-are-bump-fire-stocks-illegal-feds-states-weigh-bans-after-las-vegas-shooting/ [https://perma.cc/WE7Z-6DMH].

^[119] Only 15% of Republican gun owners believe that gun laws should be stricter, as opposed to 73% of Democratic gun owners. Also, 35% of Republic gun owners believe that gun laws should be less strict than the current laws in place. Pew Rsch. Ctr., Gun Violence Viewed as a Major – and Growing – National Problem, 13 (June 28, 2023). 

^[120] See generally the “Defund the Police” Movement, https://defundthepolice.org [https://perma.cc/HGN2-SNWY]. Rural—traditionally conservative—counties have higher gun death rates than major urban—traditionally liberal—cities. Paul M. Reeping et al., Firearm Death Rates in Rural vs Urban US Counties, 158(7) JAMA Surg. 771 (July 2023); Arianna Johnson, Red States Have Higher Gun Death Rates Than Blue States. Here’s Why, Forbes (April 28, 2023, 9:22 AM), https://www.forbes.com/sites/ariannajohnson/2023/04/28/red-states-have-higher-gun-death-rates-than-blue-states-heres-why/?sh=4e0e6ce01f81 [https://perma.cc/8A3R-P3JF]. Conservatives also generally have more favorable views of law enforcement and strong law enforcement presences than do Democrats. Hannah Fingerhut, Deep Racial, Partisan Divisions in Americans’ Views of Police Officers, Pew Rsch. Ctr. (Sept. 15, 2017), https://www.pewresearch.org/short-reads/2017/09/15/deep-racial-partisan-divisions-in-americans-views-of-police-officers/ [https://perma.cc/R6GF-5C8A].