Liberal Justices Cut Through Right-Wing Obfuscating: Bump Stocks And Machine Guns Do ‘Same Thing’

The Las Vegas shooting in 2017, which left 61 people dead and roughly 500 wounded, provoked horror even from a country inured to constant gun violence and prompted then-President Donald Trump to call for the banning of the machinery used. 

That item was a bump stock, an attachment that allows a legal, semi-automatic weapon to spray hundreds of bullets a minute.

Trump’s Bureau of Alcohol, Firearms and Tobacco (ATF) issued a new interpretive rule, finding that bump stocks — which it had previously considered outside of a decades-old machine gun ban — actually did run afoul of the National Firearms Act of 1934. 

On Wednesday, the Supreme Court heard arguments from a lawyer representing Michael Cargill, owner of Central Texas Gun Works, who was unhappy about forking over his bump stocks and fought the new rule on multiple grounds. His attorney was Jonathan Mitchell, a mainstay in these culture war cases and best known for crafting the “bounty hunter” abortion law in Texas that preceded Dobbs.

The ‘Same Thing’

The liberal justices cut through the endless discussion of whether the operation of the bump stock — essentially moving a part of the gun back and forth quickly after the shooter initially pulls the trigger — versus a traditional machine gun — with which the shooter usually holds down the trigger — qualifies under the text of the law as shooting “automatically” “by a single function of the trigger.” 

“I view myself as a good textualist,” Justice Elena Kagan said. “But textualism is not inconsistent with common sense.” 

“What the statute comprehends is a weapon that fires a multitude of shots with a single human action, whether it’s a continuous pressure on a conventional machine gun, holding the trigger, or a continuous pressure on one of these devices on the barrel,” she added. “I can’t understand how anybody could think that those two things should be treated differently.” 

Justice Ketanji Brown Jackson kept up a similar line in her questioning, pointing out that Congress meant to ban weapons that unleash hundreds of bullets in seconds, not only ones that operate in the exact way an M16 does. 

In perhaps the most surprising turn of the arguments, this chorus was joined by Justice Clarence Thomas, one of the most dependably right-wing voices on the Court who authored the majority opinion in a 2022 ruling that struck down a century-old New York gun control law and opened the door to overturning many more.

“Behind the government’s argument is a sense that this statute was initially enacted because of what some of the individuals did during Prohibition, and there was significant damage from machine guns — carnage, people dying, etc.,” Thomas posed to Mitchell. “Behind this is the notion that the bump stock does the exact same thing. With that background, why shouldn’t we look at a broader definition of function, one suggested by the government, as opposed to just the narrow function that you suggest?” 

Think Of The Bump Stockers

Thomas sounding sympathetic to the liberals’ arguments was all the starker given the behavior of his usual allies. 

Justices Neil Gorsuch, Brett Kavanaugh and Samuel Alito spent tremendous energy muddying the waters, trying to obfuscate Congress’ fairly obvious legislative intent with moans about the bump stock owners who may be hopelessly confused by the changed rule and familiar refrains about agency missteps. In a sign of the extent of the bad faith at play, both Gorsuch and Kavanaugh quoted the late Sen. Dianne Feinstein (D-CA) — despite their outright dismissal of legislative history as wholly unreliable in other recent cases — who’d expressed doubt about the solidity of the agency action in her push to get Congress to pass a law banning bump stocks.

One repeated concern professed by the conservative justices was that well-meaning bump stock owners wouldn’t know that their equipment was no longer permitted and would run afoul of the ATF.

“Because people will sit down and read the federal register,” Gorsuch interjected sarcastically after the Department of Justice’s Brian Fletcher said that the government had given clear notice that bump stocks are now illegal. “That’s what they do in their evening for fun, gun owners across the country crack it open next to the fire and the dog.”  

He then needled Fletcher’s interpretation of the word “function” in the statute, saying he’d learned differently in fifth grade grammar. 

Alito chimed in that it was “disturbing” that some people in the 5th Circuit Court of Appeals’ territory (in which a panel upheld the ATF’s rule, but the full circuit reversed) may not know the legal twists and turns of the case — despite Fletcher’s repeated insistence that the government doesn’t intend to prosecute people who had a bump stock before the rule change, that the statute of limitations to go after those people runs out in a month anyway and that unknowingly committing a crime has never been a defense.

Gorsuch also dabbled in his favorite extracurricular, blaming the agency, this time by quibbling with the rule-change process. 

“Through many administrations, the government took the position that these bump stocks are not machine guns,” Gorsuch said. “And then you adopted an interpretive rule — not even a legislative rule — saying otherwise that would render between a quarter of a million and a half million federal felons, and not even through an [Administrative Procedure Act] process they could challenge.” 

Fletcher responded that there are procedures in place to make sure people who owned bump stocks while they were legal aren’t entrapped in a prosecution. 

“That’s not a reason to shackle the ATF and certainly not a reason to shackle this Court to adopt something other than the best reading of the words Congress wrote,” he added.