It's been almost seven years since a man opened fire from a Las Vegas hotel window, terrorizing and confusing the crowd below. In roughly 10 minutes, the gunman fired more than 1,000 rounds, killing 58 people and wounding more than 500, most of them by gunfire. In a country where mass shootings have become overly frequent, the massacre on October 1, 2017 still ranks as the deadliest in U.S. history. The attack was made possible by the gunman's use of a “bump stock” to increase the rate of fire of his AR-15. The device turned a legal semi-automatic rifle into the functional equivalent of an automatic rifle.
The serial killers were so devastating and outrageous that political leaders across ideological lines called for a ban on bump stocks. Polls in 2018 showed that a majority of the public supported such a measure. Even then-President Donald Trump, a Republican who is the utmost supporter of gun rights, supported it. By the end of 2018, the Trump administration had issued regulations to reclassify bump stocks, which had been illegal since 1934, as machine guns.
Now the Supreme Court, in a 6-3 decision, strikes down the regulation. The majority opinion, written by Justice Clarence Thomas and joined by only other Republican appointees, is a tour de force of statute detailing, concluding that bump stocks technically do not fire multiple bullets with a single pull of the trigger. Thus, Justice Thomas wrote, the devices do not fall under the definition of a machine gun established 90 years ago when Congress banned private citizens from possessing such weapons, and the executive branch lacks the authority to ban them by regulation. All that remains of the old anti-bump stock movement are laws banning bump stocks in 15 states and Washington, D.C.
“The Thomas decision feels like the ultimate victory of form over substance,” Justice Sonia Sotomayor wrote in a dissenting opinion co-signed by two of the president's Democratic colleagues. The Court could have easily found that bump stocks fit the definition of a machine gun because they allow a shooter to pull the trigger once and, in her words, “fire continuously without human intervention other than sustained forward pressure.” She correctly added that “today's decision to reject that common understanding would have deadly consequences.”
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The only problem is that Justice Thomas was correct to point out that the 2018 regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives do not reflect the agency’s consistent view. In fact, they were a complete reversal of the ATF’s position on bump stocks before the Las Vegas shooting, and were almost identical to what Justice Thomas wrote in his decision. This history shows what can go wrong when we leave what is clearly a matter of legislation to the bureaucracy and the courts. It would be far better for Congress to provide new guidance rather than relying on regulators and judges to interpret 90-year-old statutory text.
So the surest way to achieve the bump stock ban that many Americans clearly want and that aligns with common sense is through legislation. If there's one silver lining to Friday's ruling, it may be that the regulation was struck down purely on legal grounds, rather than for violating the Second Amendment. That leaves the door open to legislation, as Justice Samuel A. Alito Jr. reminded everyone. His brief dissenting opinion suggested that there are no Second Amendment restrictions on banning machine guns, and that “the horrific mass shooting in Las Vegas… reinforces the need for change in federal law.”
Representatives and senators have introduced several bipartisan bills, but none have come close to success. The Supreme Court's decision should breathe urgent new life into these dormant efforts. A bump stock ban would be a good issue for presidential and congressional candidates to campaign on in this year's elections. President Biden almost immediately called for legislation. By contrast, Trump's campaign was much more ambiguous, calling for “respect” the ruling against his administration's regulations while noting the former president's support for “the right to keep and bear arms.”
This is an opportunity for Trump to shed his usual contempt for the courts that rule against him. The only consistent thing about the man is his inconsistency.
