SCOTUS Blows Up Bump Stock Ban Based On Bullshit

And blames Congress for the carnage.

On Friday, the Supreme Court ruled that “bump stocks,” which transform legal semi-automatic rifles into fully automatic machine guns, nevertheless do not qualify as machine guns under the 1934 federal law that prohibits the private sale and possession of such weapons.

The Garland v. Cargill opinion, authored by Justice Thomas and joined by the Court’s five reliably conservative justices, is exactly what it appears to be on the tin: a 6-3 decision delivering a political victory to right-wing extremists against the wishes of the citizens of this country. In fact, Americans support banning bump stocks by a sixty-four point margin, and generally favor tightening restrictions on firearms, ammunition, and gun accessories like high-capacity magazines by 25 or more points.

Bump Stocks Are An Obvious Attempt to Evade Federal Gun Control Laws

In 1934, Congress passed the Nationals Firearms Act (NFA), 26 U.S.C. § 5801 et seq., which prohibits private ownership of an automatic weapon or machine gun, defined 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.”

This open-ended definition leaves it to the discretion of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which is part of the Department of Justice, to promulgate rules and regulations defining which weapons qualify as machine guns under the law. That is not and should not be controversial; that’s what executive agencies do.

Since 1934, ATF’s lodestar has been the rate of the weapon’s fire, meaning that the principal difference between an illegal machine gun and a legal semi-automatic rifle is the rate at which a weapon can spit out bullets. Fully automatic weapons can shoot 1,500 rounds per minute, while a semiautomatic weapon has no fixed rate, firing one round each time the operator pulls the trigger.  The recommended safe firing rate for most common semi-automatic rifles is just 12 to 15 rounds per minute, as the weapons tend to overheat after hundreds of rounds are fired.

This delta creates an incentive for firearms companies to produce a legal, semi-automatic weapon, such as an AR-15, and then to manufacture or encourage others to manufacture devices capable of increasing the legal gun’s rate of fire into prohibited machine gun territory. One such aftermarket modification is called an “auto sear” or Glock switch, which physically depresses the trigger bar, drastically increasing the gun’s rate of fire. An auto sear is cheap, small (roughly the size of a quarter), and can be 3D printed at home.

Perhaps anticipating this kind of dodge, Congress specified in 1934 that the definition of machine gun “includes the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun.” (emphasis added).

In 1981, the ATF banned auto sears that “convert rifles [such as the AR-15] into machineguns,” by permitting the user “to shoot automatically more than one shot, without manual reloading, by a single function of the trigger.” The DOJ continues to prosecute users who modify guns with auto sears for unlawfully possessing a machine gun, and the ATF explicitly warns gun owners that “[p]ossession “of these prohibited devices can result in a prison sentence up to 10 years.”

Like an auto sear, a bump stock dramatically increases the rate of fire of a semiautomatic rifle such as an AR-15. From a technical perspective, a bump stock harnesses the recoil energy after a shot is fired to slide the firearm back and forth and “bump” the shooter’s stationary trigger finger, firing a second shot without the user having to pull the trigger a second time. In turn, that second shot also creates recoil, which the bump stock then channels into sliding the firearm, firing a third shot, and so on.

In other words, a bump stock enables a shooter to pull the trigger once and fire approximately 800 rounds per minute simply by leaning forward and letting recoil do all the work. Just like an auto sear, it converts a gun that typically shoots around a dozen rounds per minute into the functional equivalent of a machine gun.

And that’s exactly how bump stocks are used today.

The 2017 Las Vegas Shooting and the Government’s Response

On October 1, 2017, a man who had checked into the Mandalay Bay hotel and casino in Las Vegas with five suitcases full of weapons and ammunition opened fire from his thirty-second-floor window on the crowd below enjoying the Route 91 Harvest music festival. Using twelve AR-15-style semi-automatic rifles outfitted with bump stocks, the shooter fired hundreds of rounds per minute, spraying more than a thousand bullets. Sixty people were murdered and upwards of 400 more were wounded in the span of just a few minutes.

This would never have happened without bump stocks. It would have been physically impossible for the murderer to fire so many rounds into the crowd before his victims had time to flee. 

In the aftermath of the massacre, bipartisan public support for gun control increased, with 79 percent of Americans favoring a ban on AR-15-style assault rifles, 78 percent supporting a ban on large-capacity ammunition magazines holding over 10 rounds, and a whopping 82 percent wanting to ban bump stocks.

Even Donald Trump, a self-described “Second Amendment person” who otherwise delivered on his campaign promises to roll back restrictions on firearms, was spurred into action. He directed the ATF to review regulations of “bump fire” stocks and “similar devices,” and “as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.”

On December 26, 2018, the DOJ promulgated 27 CFR Parts 447, 478, and 479, a final rule clarifying that bump stocks do indeed convert semi-automatic firearms into fully automatic ones (just like auto sears), in contravention of the NFA. That rule was ratified by notorious liberal Bill Barr in one of his very first acts as Attorney General.

So what went wrong?

The Fifth Circuit Went Wrong …

Even as the bump stock rule was being deliberated, activists were teeing up a challenge to bring before the Fifth Circuit, the nation’s most aggressively activist judicial body. Texas resident Michael Cargill purchased two bump stocks which he voluntarily surrendered to the ATF. Cargill then sued the ATF in the Western District of Texas, arguing that the bump stock rule was invalid and should be enjoined.

Despite drawing conservative Judge Lee Yeakel, a George W. Bush appointee, Cargill lost at trial in 2019. He lost again on direct appeal to a three-judge panel of the Fifth Circuit in 2021. But, on a motion for reconsideration en banc, the full Fifth Circuit overruled itself and held that it was “ambiguous” whether bump stocks constituted a machine gun under the NFA.¹ Then, misapplying a doctrine called the “rule of lenity,” the en banc court held that it was required to resolve that ambiguity in the plaintiff’s favor:

[A]ssuming arguendo that the statute is ambiguous, we conclude that the rule of lenity demands that we resolve that ambiguity in favor of Cargill, and in turn conclude that a non-mechanical bump stock is not a machinegun for purposes of the National Firearms Act and Gun Control Act.

The rule of lenity requires no such thing. If a criminal statute leaves open “a grievous ambiguity … such that the Court must simply guess as to what Congress intended,” Maracich v. Spears, 570 U.S. 48, 76 (2013), then, and only then, must a court construe such an ambiguity in favor of the criminal defendant.

There is no “grievous ambiguity” as to congress’s intent in the NFA. Even Justice Samuel Alito, concurring in Garland v. Cargill, conceded that there “can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machine gun and a semi-automatic rifle equipped with a bump stock.”

But if SCOTUS had simply reversed the case citing the Fifth Circuit’s glaring misinterpretation of the rule of lenity, that would have let the trial judge’s opinion stand, allowing the ATF’s bump stock ban to remain in effect. And the wingnut wing wasn’t about to let that happen.

…And Then Clarence Thomas Lied About It

Last week, the six-justice conservative supermajority held that there was no ambiguous ban on bump stocks. In fact, they found that the 1934 law unambiguously excluded bump stocks its ban on devices which convert a legal weapon into a machinegun.

To reach that counterintuitive result, Justice Clarence Thomas simply lied about the record.

“For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) took the position that semiautomatic rifles equipped with bump stocks were not machineguns under the statute,” he wrote. “ATF abruptly reversed course in response to a mass shooting in Las Vegas, Nevada.”

If what Justice Thomas said were true, that might indeed suggest that the agency exceeded its statutory authority.² 

It is not true.

Instead, as Judge Yeakel held at trial, beginning as early as 2006:

ATF issued a policy statement asserting that the portion of the definition of “machinegun” applying to “a part or parts designed and intended for use in converting a weapon into a machinegun . . . includes a device that, when activated by a single pull of the trigger, initiates an automatic firing cycle that continues until the finger is released or the ammunition supply is exhausted.”

For more than a decade before the Las Vegas massacre, ATF consistently applied the principle articulated by the trial judge, the first Fifth Circuit panel, and the three-judge dissent at the Supreme Court: that the test of a machine gun is whether a modification to a legal weapon enables it to shoot at a much higher rate of fire with a single pull of the trigger.

Judge Yeakel noted that, on a case-by-base basis, the ATF had sometimes “determined that several proposed bump stocks were not machineguns because … they did not have internal springs or similar mechanical parts to channel recoil energy.” But in many other cases, the ATF found that “proposed bump stock devices were machineguns because, in ATF’s view, they relied on mechanical parts to channel recoil energy” to increase the rate of fire.

In other words, the history and tradition of the NFA clearly and unambiguously supports the proposition that any modification of a firearm which causes it to fire multiple times when the user pulls the trigger once makes it a prohibited machine gun. 

Automatic weapons do that. Aftermarket auto sears do that. And so do the kinds of bump stocks at issue in this case. 

The ATF never changed its position. It merely codified its stance consistent with the provisions of the Administrative Procedures Act, exactly as President Trump instructed it to do. 

As Justice Sotomayor wrote in dissent:

This is not a hard case. All of the textual evidence points to the same interpretation. A bump-stock-equipped semiautomatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure. The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text.

The Supreme Court’s right wing simply concocted a lie to allow it to reach its desired political result. 

And alongside that obvious lie is another lie about American politics which is deeper, harder to detect, and ultimately more pernicious. 

As Justice Alito said in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning. 

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

On the one hand, Alito is technically correct: Because this decision rests on a question of statutory construction, rather than Constitutional interpretation, Congress is free to override Garland v. Cargill by simply amending the 1934 law and adding “or bump stocks.” But the justice is well aware of the filibuster, and knows that there will never be 60 votes in the Senate to amend the NFA to ban bump stocks. He can retcon the statute to achieve his own political ends, then blithely shrug that Congress is responsible for the carnage if it doesn’t clean up his mess.

But Alito’s concurrence throws into sharp relief that Congress shouldn’t have to act. The Justice Department already did act, as per the express delegation of Congress back in 1934 when it authorized the DOJ to define “machinegun.” No one — not even Sam Alito! — thinks that the people who passed the law would have permitted bump stocks if such things had existed back then, any more than they would have permitted auto sears (which also did not exist at the time).

So why should the default rule be “go back to the legislature and change it” in 2024 if that wasn’t the default rule in 1981? The only salient difference today is that the Supreme Court’s conservatives have the power, and they are hell bent on constraining the ability of any president to use the executive branch to govern.

We need to stop pretending that’s neutral or even normal.

1. A plurality of the Fifth Circuit also held that the NFA unambiguously excludes bump stocks from the definition of machine gun under § 5845(b). See Garland v. Cargill, Slip Op. at 6.

2. It also might not; the Administrative Procedure Act explicitly differentiates between case-by-case adjudications, see 5 U.S.C. § 554, and the kind of fact-finding an agency must do when proposing comprehensive rulemaking, see id. at § 553.