Just a few point about bump stocks, the NFA, and machine guns more broadly.
1. The NFA defines a machine gun as a firearm that, with one action of the trigger, fires more than one round. Bump stocks do not meet this definition. Bump stocks allow the weapon to "bump" or bounce back and forth with the trigger finger held still. This facilitates "bump firing" the weapon. An act, which it should be noted, can be done without the stock. Bump stocks just make it easier and more consistent.
2. Bump stocks, binary triggers(one shot on pull of the trigger and one shot on release), and forced reset triggers are not legally machine guns. They do not meet the definition. They are "simulated machine guns." The ladder two devices being a much more effective in their simulated effect. Bump stocks, meanwhile, are largely a novelty item. Though it's true they were used in the horrible shooting in Vegas. Their effectiveness is highly dubious. They often cause the weapon to jam. This is due to their very inconsistent rate of fire.
3. Semi auto AR-15 rifles do not have a fire rate of a dozen rounds per minute. A decent shooter can fire two or three rounds per second. Which would be 120-180 rounds per minute. A semi auto AR-15 has a theoretical fire rate of 650-900 rounds per minute. A highly skilled shooter can reach these limits. Again, to restate, a highly skilled shooter can fire 600+ rounds per minute with a semi auto AR-15. Without simulated full auto devices or bump firing without the aid of a bump stock.
3. The ATF evaluated the bump stock several times and determined it was not a machine gun and/or machine gun parts. It was only after the Vegas shooting that they changed their minds. Meanwhile, binary triggers are not machine guns according to the ATF. Binary triggers are a far more effective, reliable, and most importantly easy way for a semi auto rifle to simulate a machine gun.
4. The National Firearms Act of 1934 did NOT ban machine guns. It regulated them under the NFA. It requires them to be registered with the ATF and a tax stamp of 200$. In 1934 this amounted to an effective ban. However, this machine gun registry was open until the 1986 Gun Owner's Protection Act. Wherein the Hughes amendment to this law closed the registry for newly produced machine guns. There are several hundred thousand machine guns in circulation that were registered prior to 1986. These are fully transferable and can be owned by any citizen that can own a firearm.
5. Though Andrew seems to be dumb founded by Thomas' opinion, the reasoning therein is sound. A machine gun can not be defined by its rate of fire. Rate of fire in a semi automatic rifle is determined by the shooter's speed. There are a lot people whose finger would be deemed a machine gun if rate of fire were the standard. It must be defined by its mechanisms. Bump stocks do not meet the current definitions of what makes a machine gun. In order to ban them one would need to amend the NFA to include "simulated machine guns." Defined as devices that enable a machine gun like rate of fire while not altering the semi automatic nature of the weapon.
This argument appears outcome based and omits key historical facts. I enjoy the articles, podcast, and the predecessor podcast but I respectfully think Andrew is hyper focused on banning bump stocks and not providing legal analysis.
(Note: For the record I have never owned a gun and I believe bump stocks should be outlawed. I also believe more gun regulations are allowed under the 2nd amendment but this does not appear to be a 2nd amendment case.)
In my reading, the ATF reviewed bump stocks multiple times under Bush, Obama, and Trump before 2018 and “examined and classified it as an unregulated firearm part, not subject to either the GCA or NFA.” (Source: Federal Register)
In February 2018 Sen. Feinstein said in a statement “If ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years, and that would mean bump stocks would continue to be sold,” (multiple sources)
If you want to look at the political motivations and not the law, the Trump administration did not care about the Las Vegas victims. The reason for the new ruling was to relieve political pressure and not force Republicans to vote on the pending legislation in an election year.
We would all be better off had the ATF never changed the rule and forced a vote on legislation. This would have put a spotlight on unreasonable views of many in Congress. They should be the focus of political animus not SCOTUS.
Strong disagree on everything except "this is not a Second Amendment case." That's correct; this is a question of administrative law and statutory interpretation, and the Supreme Court absolutely got it wrong.
1) Your arguments are copied from the opinion -- especially the misleading nonsense about Sen. Feinstein. As we say on today's show, the fact that a Senator would have *preferred* legislation is not an indication that administrative rulemaking exceeded its authority, and the Supreme Court typically rejects those kinds of arguments (unless it wants to reach a political outcome).
2) Relying on the opinion is problematic when you repeat its false claim that the ATF consistently classified bump stocks as permissible during the past 20 years. Not true. Remember that the factual record is the provenance of the TRIAL COURT, not the Supreme Court. And Judge Yeakel's order -- which we link in the written text above, so you can read it for yourself! -- documents that ATF determined that many bump stocks were properly classified as "machinegun" parts under the 1934 Act because they "relied on mechanical parts to channel recoil energy," which is exactly what the Slide Fire does. That's Paragraph 65 of the order linked above.
3) Finally, saying "Source: Federal Register" is not helpful. You need to specify what volume, page, and date of the Federal Register you're talking about for anyone to be able to look it up.
So we should really care about congressional intent in this case but not in Bostock? It was completely obvious that in passing title VII congress didn't intend to protect the rights of homosexuals but I think SCOTUS was 100% correct to read the statute as written and say that it forbids firing people for engaging in activities that are seen as acceptable for people of the other sex to engage in.
When it comes to criminal laws, it seems particularly good to require congress clearly outlaw a thing before we prosecute someone for it, rule of lenity and all. Indeed, I think it's really difficult to give any coherent reading on which a bumpstock allows multiple bullets to be fired by a "single function of the trigger" which doesn't ban all semi-automatic weapons as someone sufficiently skilled is able to bump fire them without any assistance.
I personally wish we could just repeal the 2nd amendment entirely and ban guns everywhere but it seems inconsistent to cheer on the court for ignoring congressional intent in cases like Bostock and reading the text as written only to say it's unacceptable to do exactly the same thing when the result goes the other way.
Of course, one could say that the court ought to go beyond the four corners of legal analysis and bring values into play - protecting gays against employment discrimination and stopping automatic weapons are both good. Fair, but if that's legitimate to do then it's legitimate for the conservatives to bring their values into play as well and I don't like that idea one bit.
No, we shouldn't apply a textualist analysis to either statute.
The Civil Rights Act of 1964 was enacted to prevent discrimination on the basis of sex, whether or not the members of Congress knew what sexual orientation or gender identity is. The Supreme Court properly determined that subsequent developments in society were "because of sex."
Similarly, the National Firearms Act of 1934 was enacted to prevent guns that spray a large number of bullets with a single pull of the trigger, whether or not the members of Congress knew what bump stocks were. The Supreme Court improperly determined that subsequent technological developments were not machine guns.
No contradiction, unless you're wedded to a nonsensical view of the law.
But you are making a choice there about the level of generality with which to understand congress's intent that needs justification. With a wide understanding one could say that congress's intent was to ban unduly dangerous guns with a narrow understanding you could look to how they intended "single function of the trigger" to be read. At the very least I think that issue of generality makes the reading the court gave reasonable. Especially because the issue with understanding it at the level of generality you suggest doesn't explain why it doesn't ban every semiautomatic weapon that someone can learn to bump without modification.
Having said all that, if the ATF had issued guidance saying that bump stocks were illegal machine guns when the issue was first raised I'd be much more sympathetic to the idea of deferring to them (though I'd prefer congress be explicit about any desired deference). Yes, I realize that technically they didn't reach a final judgement about that matter but in practice they regarded bump stocks as legal for multiple administrations.
And when it comes to laws which could impose criminal penalties on individuals the prospect that the government can turn on a dime and impose criminal liability on behavior it has treated as legal previously without congressional action deeply troubles me.
Ultimately, the justification for deferring to the agency's interpretation is that they are supposed to be bringing expert understanding to bear. Treating the bump stock as legal until a major event changes the politics doesn't fit that model at all. That's congress's job and a job they would have done but for the impression that Trump could protect Republicans from a tough vote with executive action.
Particularly its gun jurisprudence. I carry the banner of stare decisis, but if I were on the court, I couldn't possibly pretend that DC v Heller and its (now many) progeny are anything other than statements of personal opinion utterly unmoored to the law. -A
Just a few point about bump stocks, the NFA, and machine guns more broadly.
1. The NFA defines a machine gun as a firearm that, with one action of the trigger, fires more than one round. Bump stocks do not meet this definition. Bump stocks allow the weapon to "bump" or bounce back and forth with the trigger finger held still. This facilitates "bump firing" the weapon. An act, which it should be noted, can be done without the stock. Bump stocks just make it easier and more consistent.
2. Bump stocks, binary triggers(one shot on pull of the trigger and one shot on release), and forced reset triggers are not legally machine guns. They do not meet the definition. They are "simulated machine guns." The ladder two devices being a much more effective in their simulated effect. Bump stocks, meanwhile, are largely a novelty item. Though it's true they were used in the horrible shooting in Vegas. Their effectiveness is highly dubious. They often cause the weapon to jam. This is due to their very inconsistent rate of fire.
3. Semi auto AR-15 rifles do not have a fire rate of a dozen rounds per minute. A decent shooter can fire two or three rounds per second. Which would be 120-180 rounds per minute. A semi auto AR-15 has a theoretical fire rate of 650-900 rounds per minute. A highly skilled shooter can reach these limits. Again, to restate, a highly skilled shooter can fire 600+ rounds per minute with a semi auto AR-15. Without simulated full auto devices or bump firing without the aid of a bump stock.
3. The ATF evaluated the bump stock several times and determined it was not a machine gun and/or machine gun parts. It was only after the Vegas shooting that they changed their minds. Meanwhile, binary triggers are not machine guns according to the ATF. Binary triggers are a far more effective, reliable, and most importantly easy way for a semi auto rifle to simulate a machine gun.
4. The National Firearms Act of 1934 did NOT ban machine guns. It regulated them under the NFA. It requires them to be registered with the ATF and a tax stamp of 200$. In 1934 this amounted to an effective ban. However, this machine gun registry was open until the 1986 Gun Owner's Protection Act. Wherein the Hughes amendment to this law closed the registry for newly produced machine guns. There are several hundred thousand machine guns in circulation that were registered prior to 1986. These are fully transferable and can be owned by any citizen that can own a firearm.
5. Though Andrew seems to be dumb founded by Thomas' opinion, the reasoning therein is sound. A machine gun can not be defined by its rate of fire. Rate of fire in a semi automatic rifle is determined by the shooter's speed. There are a lot people whose finger would be deemed a machine gun if rate of fire were the standard. It must be defined by its mechanisms. Bump stocks do not meet the current definitions of what makes a machine gun. In order to ban them one would need to amend the NFA to include "simulated machine guns." Defined as devices that enable a machine gun like rate of fire while not altering the semi automatic nature of the weapon.
This argument appears outcome based and omits key historical facts. I enjoy the articles, podcast, and the predecessor podcast but I respectfully think Andrew is hyper focused on banning bump stocks and not providing legal analysis.
(Note: For the record I have never owned a gun and I believe bump stocks should be outlawed. I also believe more gun regulations are allowed under the 2nd amendment but this does not appear to be a 2nd amendment case.)
In my reading, the ATF reviewed bump stocks multiple times under Bush, Obama, and Trump before 2018 and “examined and classified it as an unregulated firearm part, not subject to either the GCA or NFA.” (Source: Federal Register)
In February 2018 Sen. Feinstein said in a statement “If ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years, and that would mean bump stocks would continue to be sold,” (multiple sources)
If you want to look at the political motivations and not the law, the Trump administration did not care about the Las Vegas victims. The reason for the new ruling was to relieve political pressure and not force Republicans to vote on the pending legislation in an election year.
We would all be better off had the ATF never changed the rule and forced a vote on legislation. This would have put a spotlight on unreasonable views of many in Congress. They should be the focus of political animus not SCOTUS.
Strong disagree on everything except "this is not a Second Amendment case." That's correct; this is a question of administrative law and statutory interpretation, and the Supreme Court absolutely got it wrong.
1) Your arguments are copied from the opinion -- especially the misleading nonsense about Sen. Feinstein. As we say on today's show, the fact that a Senator would have *preferred* legislation is not an indication that administrative rulemaking exceeded its authority, and the Supreme Court typically rejects those kinds of arguments (unless it wants to reach a political outcome).
2) Relying on the opinion is problematic when you repeat its false claim that the ATF consistently classified bump stocks as permissible during the past 20 years. Not true. Remember that the factual record is the provenance of the TRIAL COURT, not the Supreme Court. And Judge Yeakel's order -- which we link in the written text above, so you can read it for yourself! -- documents that ATF determined that many bump stocks were properly classified as "machinegun" parts under the 1934 Act because they "relied on mechanical parts to channel recoil energy," which is exactly what the Slide Fire does. That's Paragraph 65 of the order linked above.
3) Finally, saying "Source: Federal Register" is not helpful. You need to specify what volume, page, and date of the Federal Register you're talking about for anyone to be able to look it up.
Thanks for reading!
So we should really care about congressional intent in this case but not in Bostock? It was completely obvious that in passing title VII congress didn't intend to protect the rights of homosexuals but I think SCOTUS was 100% correct to read the statute as written and say that it forbids firing people for engaging in activities that are seen as acceptable for people of the other sex to engage in.
When it comes to criminal laws, it seems particularly good to require congress clearly outlaw a thing before we prosecute someone for it, rule of lenity and all. Indeed, I think it's really difficult to give any coherent reading on which a bumpstock allows multiple bullets to be fired by a "single function of the trigger" which doesn't ban all semi-automatic weapons as someone sufficiently skilled is able to bump fire them without any assistance.
I personally wish we could just repeal the 2nd amendment entirely and ban guns everywhere but it seems inconsistent to cheer on the court for ignoring congressional intent in cases like Bostock and reading the text as written only to say it's unacceptable to do exactly the same thing when the result goes the other way.
Of course, one could say that the court ought to go beyond the four corners of legal analysis and bring values into play - protecting gays against employment discrimination and stopping automatic weapons are both good. Fair, but if that's legitimate to do then it's legitimate for the conservatives to bring their values into play as well and I don't like that idea one bit.
No, we shouldn't apply a textualist analysis to either statute.
The Civil Rights Act of 1964 was enacted to prevent discrimination on the basis of sex, whether or not the members of Congress knew what sexual orientation or gender identity is. The Supreme Court properly determined that subsequent developments in society were "because of sex."
Similarly, the National Firearms Act of 1934 was enacted to prevent guns that spray a large number of bullets with a single pull of the trigger, whether or not the members of Congress knew what bump stocks were. The Supreme Court improperly determined that subsequent technological developments were not machine guns.
No contradiction, unless you're wedded to a nonsensical view of the law.
But you are making a choice there about the level of generality with which to understand congress's intent that needs justification. With a wide understanding one could say that congress's intent was to ban unduly dangerous guns with a narrow understanding you could look to how they intended "single function of the trigger" to be read. At the very least I think that issue of generality makes the reading the court gave reasonable. Especially because the issue with understanding it at the level of generality you suggest doesn't explain why it doesn't ban every semiautomatic weapon that someone can learn to bump without modification.
Having said all that, if the ATF had issued guidance saying that bump stocks were illegal machine guns when the issue was first raised I'd be much more sympathetic to the idea of deferring to them (though I'd prefer congress be explicit about any desired deference). Yes, I realize that technically they didn't reach a final judgement about that matter but in practice they regarded bump stocks as legal for multiple administrations.
And when it comes to laws which could impose criminal penalties on individuals the prospect that the government can turn on a dime and impose criminal liability on behavior it has treated as legal previously without congressional action deeply troubles me.
Ultimately, the justification for deferring to the agency's interpretation is that they are supposed to be bringing expert understanding to bear. Treating the bump stock as legal until a major event changes the politics doesn't fit that model at all. That's congress's job and a job they would have done but for the impression that Trump could protect Republicans from a tough vote with executive action.
But her emails…
SCOTUS is illegitimate.
Particularly its gun jurisprudence. I carry the banner of stare decisis, but if I were on the court, I couldn't possibly pretend that DC v Heller and its (now many) progeny are anything other than statements of personal opinion utterly unmoored to the law. -A
Precisely!
I think that’s exactly right