On Bump Stocks, 3 Reminders From 4 Democrats

Two of the reminders show Democrats’ dishonesty, and one has a potentially existential implication for the right to keep and bear arms for defense against tyranny.

In 2018, after then-President Donald Trump called a federal judge who ruled against him an “Obama judge,” Supreme Court Chief Justice John Roberts said “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

But, of course, we do. And in the Supreme Court, we have a Biden judge, or justice, too.

So, last Friday, in Garland v. Cargill, the six Republican-appointed justices upheld the decision of the United States Court of Appeals for the Fifth Circuit in Cargill v. Garland, the “bump stock” case. The three Democrat-appointed justices dissented.

Reminder #1

The three Democrats noted that the kind of firearms to which bump stocks can be attached are “commonly available, semi-automatic rifles.” Indeed, Americans own more than 20 million AR-15s, the type of rifle with which most bump stocks are used.

And that is significant because . . .

The Court may soon hear one or more challenges to state-level “assault weapon” bans, and in District of Columbia v. Heller (2008) the Court ruled that the Second Amendment prohibits banning arms that are “in common use.”

As I explained in 2018, “in common use” is not a defensible standard for determining which arms are within the scope of the right to keep and bear arms. No one involved in drafting the Second Amendment said anything of the sort. Knowing that, Justice Antonin Scalia, the great “originalist” who wrote Heller’s majority opinion, twisted himself and four other justices into a pretzel to come up with a rationale for their assertion.

Even anti-gun Justice Stephen Breyer (now retired), in his dissent in Heller, recognized:

“On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”

Further disproving the “common use” theory, it wasn’t “common” for individuals to have cannons when the Second Amendment was adopted. But contrary to what nominal president Biden frequently says, people owned cannons back then.

For a more modern example, it’s not as common today for people to own a ballistic helmet, ceramic plate body armor, and a plate carrier, as it is to own AR-15s. But as the Court observed in Heller, “arms” includes “weapons of offence and armour of defence.”

To continue on this tangent . . .

Whatever the Supreme Court may say, all “armour of defence” is within the scope of the right to arms. And so are all “weapons of offence,” except any that would give an individual American a greater degree of combat capability against modern enemies, relative to the capability a late-18th century American had with a musket against the comparably-equipped enemies of his day. That’s because the right of the people to keep and bear arms, to be able to defeat tyranny by force, if necessary, has historically hinged on two things: possession of point-target weapons (i.e., those designed to be used to engage one enemy at a time) identical or superior to those issued to members of the military, and on the people vastly outnumbering members of the military.

James Madison, who introduced the Bill of Rights in the House of Representatives, in The Federalist, No. 46:

“Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. [To an army of the size possible in the late 18th century] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Alexander Hamilton, in The Federalist, No. 29:

“[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.”

Thus, ideally, the Court will correct its Heller error, by ruling that “assault weapon” bans violate the Second Amendment not because the rifles in question are common, but because the purpose of the amendment requires individuals to possess point-target (versus area-target) weapons like those commonly issued to members of the military, a standard that would require excising automatic rifles, but not crew-served weapons, from the NFA’s definition of “machinegun.”

Of course, it would probably be difficult to get five justices on the Court to agree to anything vindicating the right of the people to defeat a tyrannical government.

So, if the Court overturns “assault weapon” bans, it will probably be on the basis of Heller’s “common use” standard and/or the standard the Court adopted in NYSRPA v. Bruen (2022), that restrictions that are inconsistent with history are unconstitutional. (The latter, because firearms defined as “assault weapons” by state-level bans have existed since at least the 1940s, but the first state ban was imposed in 1989, only a few states have such bans anyway, and the federal ban—which didn’t ban as many types of guns as the state bans do—was in effect from only 1994 to 2004.)

Reminder #2

The only question before the Court in Cargill was whether a bump stock was a “machinegun” as defined by the National Firearms Act of 1934 (NFA). Not whether bump stocks should be banned, and not whether they allow a gun to be fired “too many” times, “too quickly.”

The NFA’s four definitions are entirely objective. They are:

• Any gun that can “shoot, automatically more than one shot, without manual reloading, by a single function of the trigger,”

• “the frame or receiver of any such weapon,”

• “any part designed solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun,” or

•  “any combination of parts from which a machinegun can be assembled.

Reading English, the six Republican-appointed justices concluded that a bump stock doesn’t meet any of the four definitions, because a gun equipped with a bump stock doesn’t fire automatically, it doesn’t fire more than one shot with a single function of the trigger, and therefore it doesn’t do both of those things.

Of course, the three Democrat justices disagreed, saying “The majority arrogates Congress’s policymaking role to itself by allowing bumpstock users to circumvent Congress’s ban on weapons that shoot rapidly . . . . Even a skilled sport shooter can fire an AR–15 at a rate of only 180 rounds per minute by rapidly pulling the trigger. Anyone shooting a bump-stock-equipped AR–15 can fire at a rate between 400 and 800 rounds per minute with a single pull of the trigger. Moreover, bump stocks are not the only devices that transform semiautomatic rifles into weapons capable of rapid fire. . . .” (Emphases added.)

The Democrat justices’ use of “rapidly” and their references to high theoretical* firing “rates” were dishonest, because the NFA’s definitions do not refer to how fast a firearm can be fired.

*When discussing firing rates from a mechanical perspective, it has long been customary to do so in terms of theoretical rounds-per-minute, rather than in practical terms.

Also, while a sport shooter might shoot three shots in one second at some point during a competition, thus momentarily at a rate of 180 rounds per minute, his gun doesn’t hold 180 rounds and during a competition he probably won’t shoot 180 rounds all day.

Furthermore, the Democrat justices claimed that a person with a bump stock could fire at the high rates they cited “with a single pull of the trigger.” (Emphasis added.)

However, even the government’s lawyer, Deputy Principal Solicitor General Brian Fletcher, didn’t claim that during oral arguments before the Court. In his opening statement, he said, “To fire a rifle fitted with a bump stock, the shooter” does two things: He “places his trigger finger on the built-in finger ledge and uses his other hand to press the front of the rifle forward.” (Emphases added.) And, it is mechanically impossible for a semi-automatic rifle to fire more than once with a single pull of the trigger.

Reminder #3

Notwithstanding their rhetoric, Democrats don’t want to ban bump stocks.

If they did, they would propose legislation narrowly written to cover bump stocks and nothing else, or bump stocks and other similar contraptions, while exempting things like competition triggers, rifle muzzle attachments, and ported pistol barrels and slides.

If the Democrats’ pals in the civilian disarmament activist groups aren’t smart enough to come up with the necessary language, the BATFE’s Firearms Technical Branch could do so in about half an hour, with a few extra days required for the necessary sign-offs by the agency’s lawyers and other bureaucratic pooh-bahs.

But Democrats instead claim that they want to ban bump stocks, but then introduce legislation that would ban bump stocks and a whole lot more. The most recent example is S. 1909, the deceptively-named “BUMP Act,” introduced in the Senate by Martin Heinrich (D-N.M.). As I mentioned on Thursday, it could conceivably ban every semi-automatic rifle, pistol, or shotgun.

Heinrich pretended to try to get his bill approved through unanimous consent, knowing that at least one senator would object, ending the ruse. That objection was made by Sen. Pete Ricketts, of Nebraska.

So now, Democrats can rant and rave about bump stocks and Republicans opposing “commonsense” gun bans as the nation approaches Election Month, to keep the motivation level up among two groups upon whom Democrats’ election chances depend: hard-core leftists whose lives center around being outraged about something constantly, and “independent voter” wine-women and, if married, their soy-saturated, testosterone-challenged, deferential, Beta-male husbands, who vote liberal-left unless they think it will jeopardize their expensive two-story in the suburbs and their leased Mercedes and luxury SUV in its driveway.

None of this is to endorse bump stocks as a practical matter. I don’t think they contribute anything to the use of firearms for the purposes for which the keeping and bearing of arms was considered important enough to be enumerated in a Bill of Rights concerned with preventing oppression. However, alas, sometimes tinkerers make protecting the right to arms more complicated than it ought to be.

Copyright © Mark Overstreet 2024