The Supreme Court’s conservative supermajority on Friday created a major loophole in federal machine gun laws, striking down the bump stock ban first enacted by the Trump administration in 2018. The 6-3 decision allows private citizens to convert AR-15-style rifles into automatic weapons capable of firing 400-800 rounds per minute. One might expect that a ruling that would cause so much carnage should at least be uncontroversially enforced as law. But no. Quite so. To reach this result, Justice Clarence Thomas’ opinion overworked the statute’s language beyond recognition and ignored Congress’ clear and (for now) established mandate. As Justice Sonia Sotomayor explained in her dissent, the supermajority ignored the statute’s “ordinary meaning” and adopted an “artificially narrow” interpretation that would have “deadly consequences.” This Supreme Court will bear full responsibility for the next mass shooting enabled by legal bump stocks.
Friday's decision, Garland v. Cargill, is not a Second Amendment case. The plaintiffs are not (yet) arguing that the Constitution guarantees the right to own bump stocks. Rather, they are arguing that the Trump administration, which outlawed bump stocks after the 2017 Las Vegas massacre, overstretched existing law. The shooter committed the massacre with the aid of a bump stock, killing 60 people in 10 minutes from 490 yards away, making it the deadliest mass shooting by a single gunman in U.S. history. To use the device, the shooter attaches it to an AR-15, places his finger on the trigger, leans forward, and keeps pressure on the bump stock. In a semi-automatic, the shooter must pull the trigger to fire each bullet. In contrast, if done correctly, “bump firing” allows the shooter to fire bullets at the same velocity as an automatic rifle without having to pull the trigger multiple times. The barrage of bullets can be heard in many videos of the Las Vegas massacre. The bump stocks allowed for rapid-fire firing, mowing down victims one after the other.
Mark Joseph Stern
The Supreme Court's June ruling will be devastating and unprecedented.
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The Bureau of Alcohol, Tobacco, Firearms and Explosives has been monitoring these devices for years. The agency has deemed some illegal depending on their exact mechanism, but has not taken a formal position overall. Following the Las Vegas shooting, the ATF concluded that bump stocks turn semi-automatic rifles into machine guns, which are illegal under longstanding federal law. This is because the law prohibits “any part designed and intended solely for the purpose of converting a weapon into a machine gun.” And a “machine gun” is defined as any firearm that fires automatically “by the single action of the trigger.” After much deliberation, the ATF determined that rifles equipped with bump stocks do just that.
Now the Supreme Court has decided it understands firearms better than the ATF. Justice Thomas' majority opinion reads like the work of a gun fetishist, complete with diagrams and even GIFs. The firearms-worshiping justice clearly relished the opportunity to paint a picture of the inner workings of these cherished instruments of carnage. (Not surprisingly, he borrowed an image from the ardently pro-gun Firearms Policy Foundation.) To get to his desired result, Justice Thomas falsely accused the ATF of taking a “position” that bump stocks are legal, then “abruptly” changing course after the Las Vegas shooting. This explanation is completely wrong. The ATF carefully reviews the various bump-stock-like devices developed by gun manufacturers on a case-by-case basis, finding some to be permissible and others illegal. The gun industry helped push these devices into the mainstream by misleading the ATF about its purpose. For example, in one case, a manufacturer won FDA approval by claiming that a bump stock was designed for people with weak hand strength, then marketed it as the next best thing to a machine gun.
After unfairly accusing the agency of a politically motivated policy shift and using that accusation to downplay the agency's expertise and authority, Justice Thomas adopted a highly technical interpretation of the statute that does not conform to the letter of the law. He wrote that a “single function of the trigger” means a complete “cycle” of the spring-loaded hammer inside the gun, not a single pull of the trigger. Because the hammer resets (rapidly) to its original position between shots, Justice Thomas concluded that “bump fire” involves more than a “single function of the trigger.” He also wrote that the shooter must “actively maintain” a specific position to apply pressure to a specific part of the weapon, so the resulting shot is not truly “automatic.”
Sotomayor's dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, strikes down the slicing and dicing of the provision. She points out that when Congress first banned “machine guns” in 1934, their “internal mechanisms” were “extremely diverse.” Some used triggers, others buttons. Some relied on the shooter pushing the weapon backward, while others used the recoil generated by the firing of a round. “To account for these differences,” Sotomayor wrote, “Congress adopted a definition that encompasses all guns that fire continuously without the shooter having to pull the trigger again.” That was the usual meaning of “automatic” fire until Friday. The extensive record of the 1934 congressional debate supports beyond doubt that lawmakers intended to codify this definition. And the “evidence of use at the time overwhelmingly supports that interpretation.”
But the Supreme Court has now replaced this nearly century-old understanding with a narrow, highly technical one that has no basis in statutory text. In doing so, the majority “monopolized Congress's policy-making role,” Sotomayor noted. Its indefensible decision has “eviscerated Congress' machine gun regulation,” “enabled gun users and manufacturers to circumvent federal law,” and “hampered the government's efforts to protect machine guns from shooters like the Las Vegas shooter.”
Why? To be sure, a deep-rooted current of gun fetishism runs through Thomas' opinions. But so does an arrogant skepticism of federal agencies like the ATF and the experts who work there. The majority scoff and ignore the ATF's interpretation in favor of their own amateurish ideas about how real machine guns work. In the process, they do serious damage to American democracy by ignoring the decisions of the executive branch, which, unlike the judiciary, is accountable to the public and does not follow Congressional mandates.
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Sure, Congress could go back to the drawing board and enact a broader law covering bump stocks (though that won’t happen, since Republicans would block such a proposal). That’s what Justice Samuel Alito advised in his concurring opinion on Friday, urging lawmakers to close the loopholes they helped create. But Congress shouldn’t have to right the Supreme Court’s mistakes. When they can break a rare gridlock, the Legislature doesn’t need to waste time fixing laws the Supreme Court has broken. And the rest of us don’t need to worry that justices, protected by an ever-growing guard, will thoughtlessly expose us to the possibility of mass genocide. For the conservative supermajority, the case is a matter of wordplay and graphics. But for future victims of bump-stock mass shootings, it’s literally a matter of life and death.
This is part of Opinionpalooza, Slate's coverage of major Supreme Court decisions handed down this June. Together with Amicus, we kicked off the year by explaining how fundamentalism has engulfed the law. The best way to support our work is to join Slate Plus. (If you're already a member, consider donating or buying some merch.)
