REASON
On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.
On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the “best reading” of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.
The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The “interpretive rule” at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle’s receiver to slide back and forth.
Officially, the purpose of that rule was merely to “clarify” that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.
Federal law defines a machine gun as a weapon that “automatically” fires “more than one shot” by “a single function of the trigger.” The definition also covers parts that are “designed and intended…for use in converting a weapon” into a machine gun.
During Wednesday’s oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It “fires more than one shot by a single function of the trigger,” he said, because “a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence.” An ordinary semi-automatic rifle, according to Fletcher, “fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot.” But “a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push.”
Fletcher argued that a rifle with a bump stock also “fires more than one shot automatically, that is, through a self-regulating mechanism.” After “the shooter presses forward to fire the first shot,” he said, “the bump stock uses the gun’s recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute.”
Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock “can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired.” The trigger “is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire,” he added. “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.”
Second, Mitchell said, a rifle with a bump stock “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.” That process “depends entirely on human effort and exertion,” he explained, because “the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated.”
Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher’s reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun’s rate of fire.
According to Fletcher, “a traditional machine gun” can “shoot in the range of 700 to 950 bullets a minute,” while a semi-automatic rifle with a bump stock can “shoot between 400 and 800 rounds a minute.” As he conceded, however, the statute does not refer to rate of fire. “This is not a rate-of-fire statute,” he said. “It’s a function statute.” To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.
“It seems like, yes, that this is functioning like a machine gun would,” Justice Amy Coney Barrett said. “But, you know, looking at that definition, I think the question is, ‘Why didn’t Congress pass…legislation to make this cover it more clearly?'”
Justice Neil Gorsuch made the same point. “I can certainly understand why these items should be made illegal,” he said, “but we’re dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns.” That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.
The massacre inspired several bills aimed at banning bump stocks. Noting that “the ATF lacks authority under the law to ban bump-fire stocks,” Sen. Dianne Feinstein (D–Calif.) said“legislation is the only answer.” President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that “the law has not changed,” Feinstein warned that the ATF’s “about face,” which relied partly on “a dubious analysis claiming that bumping the trigger is not the same as pulling it,” would invite legal challenges…
