SCOTUS: What Did the Supremes Think of Bump Stocks?


I consider myself somewhat a gun nut. I have been writing about shooting, hunting, and outdoor sports since the late 1990s. I served in the military before that and carried a gun or two in the Gulf War. I’ve been hunting since I was seven. I have multiple degrees, including a Ph.D. in Communications and a Bachelor of Political Science. I would not say I was smart, but I am educated. However, after listening to 1.5 hours of oral arguments regarding bump stocks, I feel dumber for the experience…

The arguments were a word salad that was left out in the hot sun for too long, turned brown, and wilted long before the 90 minutes expired. It devolved into a debate over words, transitive verbs, and hypothetical black boxes that vibrate after pushing a button to shoot multiple bullets. There was even a discussion of a trip wire that caused a ‘preplaced’ gun to shoot multiple times and whether that constituted a machine gun.

Bump stock on an AR-15 semiautomatic rifle
Originally, the Fifth Circuit Court of Appeals recently ruled against the Trump Era Bump Stock Ban. Now, the Supreme Court of the United States is hearing the case.

None of that really seemed to matter (in my opinion). I thought what really mattered was whether the Bureau of Alcohol, Tobacco, and Firearms (ATF) had the authority to regulate bump stocks the same way it does machine guns? However, that was another case. This was simply about whether a bump stock was a machine gun, based on the definition of the word ‘function.’

Bump Stocks

Gun control advocates, and the Government, claim “A bump stock is a device that enables semi-automatic rifles to fire almost like machine guns.” That sounds like being a little bit pregnant to me. Either the device is a machine gun or it’s not. However, that is another debate.

In 2018, the Trump administration enacted a bump stock ban in response to the 2017 mass shooting at a Las Vegas concert. The gunman used a bump stock to kill or wound scores of people. Shortly after the ban’s enactment, Michael Cargill (an owner of two bump stocks), filed suit.

Bump stocks were not new in 2017. After some vacillation, the ATF had ruled that bump stocks were not machine guns. The ‘function’ of the trigger… i.e. the trigger only fired one shot each time it was activated. The trigger then went through reset and a new action began to fire the next shot. Thus, a nonmechanical bump stock was not a machine gun.

Function… that’s where things got messy. Why did Congress use the word ‘function”? Function is not a ‘pull’ of the trigger. Even when the Congress enacted the National Firearms Act (NFA) of 1934 there were ‘push’ triggers.

The Arguments: Highlights

Early in the proceedings, Justice Gorsuch laid out “…we are dealing with a statute enacted in the 1930s. Through many administrations (Bush, Obama), the government took the position that these bump stocks are not machine guns. Then, you (ATF) adopted an interpretive role, not even legislative, saying otherwise. A role that would render between a quarter-million to half-million people federal felons, not even through a process they could challenge, subject to 10 years in federal prison, and the only way they can challenge it is if they are prosecuted. They may wind up dispossessed of all guns in the future, as well as other civil rights, including the right to vote.

“I want your reaction to that. I believe there are a number of members of congress, including Senator Feinstein, who said this administrative action forestalled legislation that would have dealt with this topic directly, rather than using an almost 100-year-old statute in a way that many districts would not have anticipated.”

Brian Fletcher, U.S. Principal Deputy Solicitor General, then put the ATF on a somewhat even keel with SCOTUS. He claimed that SCOTUS often concludes that the government had interpreted statutes the wrong way and corrects the wrong.

Fletcher said, I think the government should do the same thing. After the Las Vegas shooting, I think it would have been irresponsible for the ATF not to take another closer look at this prior interpretation, reflected in a handful of classification letters, and to look at the problem more carefully. Having done that, I think it would have been responsible if the ATF concluded, as it did, that these devices are prohibited.

Justice Gorsuch: Why not do it by a legislative rule, properly? As an interpretive rule, you can — more or less — just issue. You don’t even have to put it in the Federal Registry. You do in some circumstances, but not all. You are creating a class of between a quarter-million and half-million people who have, in reliance on past administrations, republican and democrat, who said this does not qualify under the statute. An interpretive rule, you cannot even challenge it.

Fletcher went on to make his case about mobsters during Prohibition using machine guns, rates of fire, and general lawlessness to be the real reason for the NFA. He went further to claim that the increased rate of fire from a bump stock-equipped semi-automatic should be classified as a machine gun based on this reasoning.

The Opposition (Michael Cargill, Respondent)

Jonathan F. Mitchell on behalf of the Respondent: The statutory definition of machine gun extends only to weapons that fire more than one shot automatically — by a single function of the trigger. Mr. Cargill’s bump stocks fall outside that — for one definition. (The Respondent’s counsel stated that the Government’s position failed on two points, either of which would cause the Government’s position to fail.) A bump stock can fire only one shot, per function of the trigger, because the trigger must reset after every shot and function again before another shot can be fired.

The trigger is the device that initiates the firing of the weapon. The function of the trigger is what the firing device must do to cause the firearm to fire. The phrase ‘function of the trigger’ can refer only to the trigger’s function. It has nothing to do with the shooter or what the shooter does to the trigger, because the shooter does not have a function. The statute is concerned only with what the trigger does, and whether a single function of that trigger produces more than one shot.

Second, a bump stock-equipped rifle does not, and cannot, fire more than one shot automatically by a single function of the trigger. Because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing. Everything about the bump firing process is manual.

There is no automating device, such as a spring or motor, in any of Mr. Cargill’s nonmechanical bump stocks. The process depends entirely on human effort. The shooter must thrust it forward with the non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of the actions are automated. The solicitor general has yet to identify any component of Mr. Cargill’s devices that automatically performs any task necessary for the gun’s firing. We ask the court to affirm on that ground.

Down the Rabbit Hole

However, it was Fletcher’s reasoning about the definition of ‘function’ that really seemed to muddy the waters. The Government contended that ‘function of the trigger’ did not mean movement of the trigger. Instead, Fletcher offered that it meant action of the shooter — and the Justices followed him right down that Rabbit Hole.

Conclusion

Only a fool would look at the questioning by the Justices and predict the outcome of the Court’s decision. The Justices often play devil’s advocate to strengthen or weaken an argument. However, I think we can all play the part of the fool here, and reasonably conclude that the High Court will not hand down a decision that is not favorable to bump stocks. Justice Gorsuch, at one point said, “I can certainly understand why these items should be made illegal.”

Are you in favor of bump stocks being legalized. Do you think they should be classified as machine guns? Why? Share your answers in the Comment section.


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