SCOTUS Decision: Bump Stocks & More
All semi-automatic firearms were potentially at stake.
On June 14, in Garland v. Cargill, the Supreme Court upheld the decision of the United States Court of Appeals for the Fifth Circuit in Cargill v. Garland, that the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), in a recent rule, erred in declaring that a non-mechanical bump stock (hereafter, “bump stock”) is a “machinegun” as defined by the National Firearms Act of 1934 (NFA).
According to that definition, a “machinegun” is:
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.
According to the BATFE, a bump stock was a “machinegun” because, when attached to a semi-automatic rifle, particularly an AR-15, it “convert[s] an otherwise semiautomatic firearm into a machinegun.” (Notice the reference to semi-automatic “firearm.” Bump stocks are attached to only rifles. This has an implication, discussed below.)
“Shoot, automatically more than one shot . . . by a single function of the trigger”
In this article, which some weeks ago I sent to the law clerks of the six justices I believed (correctly, as it turned out) would be part of the majority in Cargill, as a “Hail, Mary,” on the off chance one might read it, I provided photographs of the fire control components and receivers of an AR-15 and of a fully-automatic M16, and explained how those of the AR-15 are designed to prevent the rifle from firing “automatically” and from firing “more than one shot . . . by a single function of the trigger.” Similar images and discussion were within the Fifth Circuit’s and the Supreme Court’s decisions.
In sum, with an M16, with its selector (a switch on the side of the rifle) set to “automatic,” pulling the trigger and holding it to the rear causes the rifle to fire one shot after another “automatically.”
An AR-15’s selector doesn’t have an “automatic” position. Pulling an AR-15s trigger fires the rifle once. Immediately after firing, the hammer gets locked rearward by the disconnector, preventing the rifle from firing again. To fire the rifle again, the trigger must first be released (“reset”), which transfers the hammer-locking function from the disconnector to the sear (the top, front edge of the trigger). Then, the trigger must be pulled again.
Federal law (18 USC 921(a)(29)) recognizes this, defining “semiautomatic rifle” as one “which requires a separate pull of the trigger to fire each cartridge.”
The government making stuff up
During oral arguments before the Court, Principal Deputy Solicitor General Brian Fletcher, representing the government, said “we don’t think ‘function of the trigger’ means movement of the trigger. We think it means act of the shooter.” (Emphasis added.)
The Court, in an opinion written by Justice Clarence Thomas, with Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett concurring—all of whom can read English—disagreed. It said:
The statutory definition . . . hinges on how many shots discharge when the shooter engages the trigger”
A semiautomatic rifle will fire only one shot each time the shooter engages the trigger—with or without a bump stock”
A bump stock “does not alter the basic mechanics (of an AR-15) . . . . the trigger still must be released and reengaged to fire each additional shot”
A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does. Even with a bump stock, a semiautomatic rifle will fire only one shot for every ‘function of the trigger.’”
If the Court had upheld the BATFE’s rule
The NFA’s definition of “machinegun” has nothing to do with how fast a weapon can be fired. As the Court said, “Congress could have linked the (NFA’s) definition of “machinegun” to a weapon’s rate of fire, as the (three leftist justices’) dissent would prefer. But, it instead enacted a statute that turns on whether a weapon can fire more than one shot “automatically . . . by a single function of the trigger.”
But Fletcher told the Court that one of the reasons bump stocks should be banned is that they allow someone to fire a semi-automatic rifle at a rate of 10 rounds per second.
Arguably, then, had the Court upheld the BATFE’s rule, a Democrat president, frustrated that Congress won’t ban AR-15s, could order the BATFE to declare that any semi-automatic rifle—without a bump stock, but with something that enables a rifleman to shoot faster, such as a trigger with a lighter pull weight, or with a shorter reach, or with a muzzle attachment that mitigates recoil—is a “machinegun.” The same could also apply to semi-automatic pistols with those modifications, or a lower weight hammer spring, or with a ported barrel or slide, or to semi-automatic shotguns.
Important to note, marksmanship consists of only accuracy and speed. It is the ability to fire a sufficient number of sufficiently accurate shots, in a sufficient amount of time to achieve the shooter’s purpose. Thus, defensive and tactical firearm instructors, and the most popular rifle and pistol competitions, use electronic “shot timers” that measure students’ and competitors’ speed of fire in hundredths of seconds.
This video of world and multi-time national champion pistol shooter Ben Stoeger illustrates the point.
Leftists’ despair and confusion
If the BATFE’s rule had stood, it would have been illegal to possess a bump stock, even without a firearm, because the Hughes Amendment (18 USC 922(o)), to the otherwise beneficial Firearms Owners’ Protection Act of 1986, prohibits the possession of a “machinegun” manufactured after May 19, 1986, and bump stocks were invented after that date.
Bemoaning the Court’s decision, Harvard University constitutional law professor emeritus Laurence Tribe claimed that the NFA prohibits the private possession of a “machinegun.”
However, pursuant to the NFA, a person may possess a “machinegun” after passing a background check and paying the IRS a $200 tax, with the gun registered with the BATFE.
The late, conservative Justice Antonin Scalia even made the same mistake (and more serious mistakes, as I explained here) in his majority opinion in District of Columbia v. Heller (2008). Tribe is a Harvard law school graduate, and so was Scalia, so maybe it’s a Harvard thing.
Another whiner, Democrat congressman Dan Goldman, accused the Court of thinking it “knows better” than the BATFE. But, as the Court pointed out, “On more than 10 separate occasions over several administrations, ATF (its Firearm Technical Branch) consistently concluded that rifles equipped with bump stocks cannot ‘automatically’ fire more than one shot ‘by a single function of the trigger.’”
Kelley Robinson, the self-identified “black, queer mom” president of the largest sexual deviancy and transgender activist organization in the country (Human Rights Campaign, annual revenue in 2021 reportedly $46 million and partially funded by military-industrial complex giant Northrup Grumman), retweeted a post from the civilian disarmament activist group Giffords and claimed “the Trump stacked Supreme Court (blah, blah, blah).”
A queer theory, indeed, because it was Trump who ordered the BATFE to come up with its rule after bump stocks were reportedly used in the infamous Las Vegas shooting. He did so, presumably, so Republican members of Congress would not have to vote on legislation, introduced by Democrats at the time, to ban bump stocks. He knew they would have been vilified by the media if they had voted against the legislation, and by their constituents if they had voted for it.
Presidents order the BATFE to do this sort of thing a lot
GHW Bush ordered the BATFE to change its mind about imported “assault weapons” in 1989. Bill Clinton ordered it to change its mind about imported “assault pistols” in 1993, about several shotguns in 1994, and about imported semi-automatic “assault” rifles in 1998. Barack Obama ordered it to change its mind about M855—about whether it was “armor piercing ammunition” as defined in federal law (18 USC (a)(17)(B)(i))—in 2017.
That should remind people, especially conservatives who blindly worship at the altar of those who wear government uniforms and carry government badges, that people who get a paycheck from the government and are looking forward to a fat government pension will violate the constitution, the law, morals, ethics, and your rights for the sake of their financial self-interest.
The future of bump stocks
Leftist justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would presumably have no problem with Congress banning bump stocks. And, justices Alito, Gorsuch, and Barrett suggested they might not have a problem either.
In his concurring opinion, Justice Alito said “There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law. . . . Now that the situation is clear, Congress can act.”
During oral arguments, Justice Gorsuch said “I can certainly understand why these items should be made illegal.” Justice Barrett told Fletcher, “I am entirely sympathetic to your argument. I mean . . . that this is functioning like a machinegun would.”
The latter three’s apparent hostility toward “machineguns” may be, in part, in deference to Justice Scalia’s dishonest rationale in Heller (with the concurrence of Chief Justice Roberts and Justices Thomas and Alito, and now-retired Justice Anthony Kennedy) that M16s are not within the scope of the right to keep and bear arms. (As noted above, explained here.)
A better option
Bump stocks may provide cheap-thrill entertainment to people who think that the keeping and bearing of arms was included in the Bill of Rights—the provisions of which are entirely about preventing oppression—so they can amuse themselves with inaccurate gun-blasting. But they don’t increase the usefulness of a semi-automatic rifle for the militia purposes stated in Article 1, Section 8, of the Constitution, or contemplated by the Second Amendment, or for defense against common criminals. If they did, defensive and tactical rifle instructors would include them in their classes, and police and sheriff departments would use them.
Whatever Congress may decide to do about bump stocks, to be consistent with the intent of the Second Amendment—a militia, drawn from an armed citizenry, capable of defeating a tyrannical government (see James Madison and Alexander Hamilton, in The Federalist, Numbers 46 and 29, respectively)—the Hughes Amendment should be repealed, at least as it applies to automatic rifles such as the M16.
Perhaps a constitutionally-legitimate argument can be made for leaving crew-served weapons, such as the M2, M240, M249, and XM250, to the National Guard, the organized component of the Militia of the United States under federal law. (Caveat: The Court’s unanimous decision in Perpich v. Department of Defense (1990)—that the authority of the president over the National Guard is absolute—could render the Guard useless for the purpose described by Madison and Hamilton, and contemplated by the Second Amendment.)
But M16s and the like are rifles and, other than because of the Hughes Amendment, individual Americans (members of the Militia or not) have always had privately-owned, individually-served small arms identical (or superior) to those possessed by the active-duty military. And in NYSRPA v. Bruen (2022), the Supreme Court said that restrictions that are inconsistent with history are unconstitutional.
Repealing Hughes would mean that to own an M16 or the Army’s new XM7, you would have to comply with the NFA’s registration and tax requirements. Those restrictions, too, may be unconstitutional under the Bruen standard, but that’s a debate for later.
Copyright © Mark Overstreet 2024