Can US President reclassify firearms by executive order?

Question

I had recently read a opinion piece wherein the author was suggesting that certain firearms could be reclassified to Class 3 Firearms and that doing so was not violating the Constitution, but would require registration of such firearms.

Is this feasible, and could a reclassification be done by executive order (similar to the Executive Order on bump stocks)?

ETA: this question never mentions reclassification of semi-automatic to fully automatic (as has been the basis of some answers). Some class 3 weapons are not full automatic but appears to be so classified for other reasons ie short barreled shotguns or cane guns)

Answer 1

No.

The National Firearms Act(NFA) is quite specific as to what constitutes a class 3 firearm. The president cannot change this unilaterally, because the US constitution expressly gives Congress the ability to pass and legislation.

Executive orders are orders to the executive agencies to act in a specific way within the bounds of authority that congress has given them. They have no power unless they are backed by some law.

The NFA defined a "machine gun" as a firearm that fires more than one round with a single pull of the trigger. Bump-stocks and forced-reset triggers are mechanisms that cause the recoil / action of the gun to release the trigger, so that the user automatically pulls it again when the gun resets.

The ATF argues that such things are effectively machine guns, as they fall under the spirit of the law: you pull your trigger finger back and the firearm discharges multiple rounds.

Proponents of them argue that they technically aren't, because the trigger resets in between rounds.

The question of whether the spirit or the words of the NFA should be enforced is a matter for the courts to determine. However, the ATF has a good-faith argument that they are machine guns under the actual law.

If the president issued an executive order saying "Semi-automatic rifles are now machine guns under the National Firearms Act," this would be blatantly violating both the letter and spirit of the law. There is no chance any ATF actions enforcing this order would be upheld by the courts.

Answer 2

Can US President reclassify firearms by executive order?

Is this feasible, and could a reclassification be done by executive order (similar to the Executive Order on bump stocks)?

Yes.

@user1167758 is not wrong in saying that "Executive orders are orders to the executive agencies to act in a specific way within the bounds of authority that congress has given them. They have no power unless they are backed by some law."

But, classification of particularly firearms in a particular class is one of the things that Congress has given the executive branch the authority to do within the bounds of the definitions provided in the relevant statutes.

An executive order is one means by which a new regulation is enacted. There is a process that has to be followed to change a regulation under the Administrative Procedures Act, but it can be done.

There are always a significant number of cases in which a firearm could legitimately be classified in more than one possible class and when that is the case, the executive branch has discretion to determine that a predecessor administration made the wrong call, if the new classification can be supported by rational arguments from the facts.

As a practical matter, regulations are updated and revised on a daily basis, and while past regulatory determinations aren't frequently revised, it isn't something terribly exceptional either.

For example, in the 1990s, the U.S. government decided that its historic regulations that is used for determining when entities were classified as partnerships for tax purposes and when they were classified as corporations for tax purposes, had become an unworkable, confusing mess that didn't advance legitimate policy goals and overhauled those regulations entirely.

Similarly, from time to time, the U.S. government updates lists of pollutants, endangered species, and controlled substances based upon standards provided by statutes and sometimes changes classifications used for that purpose.

This doesn't mean that any particular firearm is a good candidate for reclassification, and the question doesn't identify any particular firearm that would be reclassified, but surely there are some such firearms, and the bump-stock reclassification is one example of such a firearm.

For example, a Class 3 Firearm (per the link in the question) includes:

According to the NFA, a machine gun is defined as "[a]ny 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." This definition includes any frame, receiver, or parts to make a machine gun.

Definition of "can be readily restored to shoot", in particular, is one upon which reasonable minds can differ.

Answer 3

Just as a point of information, the last category of firearms that was (effectively) banned by reclassification were those using "bump stocks", following the (2017) Las Vegas massacre.

But even for these it's somewhat dicey whether the ban will ultimately hold in courts; in one appeals court (Sixth Circuit) it was upheld by 8-8 (deadlock equals upheld there). Insofar SCOTUS has been "dancing around" such cases, becoming famous for rescheduling them numerous times.

The case joins one already awaiting a decision on US Supreme Court review, Aposhian v. Garland. The high court has rescheduled its consideration of whether to take bump stock proponent W. Clark Aposhian’s case numerous times.

(One can probably appreciate the bind that a court with three Trump appointed judges would have in overturning a Trump-issued gun ban, even moreso given the apparently crushing public opinion majority in favor of the ban.)

So the answer to whether some guns could be banned (past tense) by recategorization, is obviously yes.

However, it is difficult to see how much further the executive could push the machine-gun reclassification angle (to other categories) given the risks of having more "stretchy" recategorizations overturned in courts.

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As the question appears to have evolved into something about taking a guess which short guns might bannable via reclassification... there's also some level of court precedent on that:

As a result of the Supreme Court decision in United States v. Thompson/Center Arms Company, 504 U.S. 505 (1992), it is not illegal to possess a "kit" allowing a handgun to be fitted with a buttstock and with barrels both under and over the 16 inch minimum for a rifle, so long as the firearm is only assembled into legal (handgun with no buttstock, rifle with buttstock and 16 inch or longer barrel) configurations. Assembling the firearm into an NFA-regulated configuration (rifle with buttstock but barrel shorter than 16 inches) would be a violation of the National Firearms Act.

So, I'd say a lot of the fringes of what's reclassifiable have been... explored.

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3rd time's the charm? A comment has explained that

But to address your "certain firearms" request, the opinion piece was referring to "high velocity, massive trauma inducing weapons" The author was not suggesting "banning" weapons, rather that certain weapons (by way of classification) might have additional regulation requirements.

If you look the present classification, there's no basis for classifying by bullet velocity. As for the level of trauma... that might be debatable given that the category of "destructive device " exists, but in the fine print it's rather difficult to assign rifles to it, other than those over .50 inches in bore.

There might be leeway for 12-gauge shotguns (0.729" caliber) and 20-gauge shotguns (0.615 in) to be banned this way because it seems the exception for those does fall under the executive's decision/discretion.

the barrel or barrels of which have a bore of more than one-half inch in diameter (.50 inches or 12.7 mm) except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes.

I suspect that unless there's some kind of shotgun-based massacre, that won't happen, given that they are not exactly the near-military style weapon derivatives that was e.g. the focus of the assault weapons ban etc. OTOH looking closely at the latter, some semi-automatic shotguns were banned, specifically those with detachable magazines (and some based on features that seem less relevant to me). So I'm guessing there is leeway in the law for the executive to ban/reclassify those.