Amy Coney Barrett Will Decide If Machine Guns Are Actually Legal

Gun Rights

On Oct. 1, 2017, a gunman opened fire on the crowds at a music festival in Las Vegas from the 32nd floor of a hotel across the street. It lasted just 10 horrific minutes. Yet in that time, the shooter fired more than 1,000 rounds, killing 60 people and wounding at least 413. He was only able to achieve this carnage by attaching bump stocks to semiautomatic rifles, radically increasing their rate of fire—from 180 rounds a minute to a maximum of 800 rounds a minute. The bump stocks effectively transformed rifles into machine guns. Donald Trump’s administration quickly took action, clarifying that these dangerous devices are illegal under federal law.

On Wednesday, however, the Supreme Court indicated an inclination, if not an outright hunger, to invalidate the ban. The morning’s oral arguments in Garland v. Cargill provided an ominous sign that five justices may make such weapons of mass slaughter legal once again. Should they follow through, civilians will regain access to a device whose sole purpose is to kill hundreds of people in a single minute.

This gruesome prospect is the result of devious and dishonest lawyering on the part of the gun lobby, abetted by judges who pretend not to know better. The bump stock ban is hardly liberal overreach—it was, after all, enacted by Trump’s Department of Justice in conjunction with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Nor is it a dubious fit under existing federal law, which prohibits any device that enables automatic firing. But this particular ban sits at the intersection of two obsessions on the legal right: demolishing gun safety legislation and dismantling the administrative state. It was inevitable, then, that the far-right 5th U.S. Circuit Court of Appeals would find the ban unlawful. And given the current Supreme Court’s pro-gun extremism, it was always going to be an uphill climb to persuade a majority that the ban should stand.

To make things easier, let’s count votes at the outset: Justices Clarence Thomas and Neil Gorsuch are vehemently against the bump stock prohibition. Justices Samuel Alito and Brett Kavanaugh are pretty obviously against it, too. The three liberal justices think it is surely legal and should remain in place. Chief Justice John Roberts said little, but seemed to lean in that direction too. That means Cargill likely comes down to Justice Amy Coney Barrett, who has served as a swing justice on guns in the past. Barrett admitted that “intuitively,” she was “sympathetic” to the government’s argument, but sounded hung up on one key, fact-based question at the heart of the case. The justices to her right then lobbied hard to convince her she should swing their way.

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She shouldn’t. Here’s why. The federal definition of a “machinegun” is “any weapon” that can be made to shoot “automatically more than one shot” by “a single function of the trigger.” It also includes any “part” or “combination of parts” that convert a weapon into a machine gun. To use a traditional automatic machine gun, like the M-16, the shooter pulls the trigger and holds it down, firing 700–950 rounds a minute. To use a traditional semiautomatic rifle like the AR-15, the shooter has to pull the trigger to fire each round, firing 180 rounds a minute at most. A bump stock relieves the shooter of this duty to pull the trigger. It harnesses the recoil of an AR-15 to move the trigger back and forth at a rate no human could achieve on their own. That’s why, when a shooter attaches a bump stock to their AR-15, they can shoot up to 800 rounds per minute—right in line with a traditional machine gun.

In the terms of a statute, then, a bump stock is a “machinegun.” It’s a “part” that enables a weapon to fire “automatically” with “a single function of the trigger.” The shooter initiates shooting a single time, and it complies: Up to 800 rounds spray out of the barrel in 60 seconds. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson each grasped this fact, and illustrated it with various hypotheticals that vividly proved the point.

Yet Barrett resisted it. “I think your argument depends on volition,” she told Principal Deputy Solicitor General Brian Fletcher, who provided a deft defense of the ban on Wednesday. “For a bump stock to work,” the justice told Fletcher, “you still have to have your finger right there.” It might look automatic “from the perspective of the gun,” but “you still do need your finger there to kind of pull back the trigger the same way that you would if it was volitional.” The shooter is not consciously pulling the trigger, she suggested, but the bump stock is effectively making him pull the trigger. So, in the words of the statute, is the rifle really shooting automatically “by a single function of the trigger” or is the finger a part of the action?

The answer should be clear. As Fletcher explained, the shooter begins the process by simply pushing forward on the firearm. The trigger engages the shooter’s finger to fire off that first shot. Then, thanks to the bump stock, the rifle keeps firing automatically, bumping over and over again into the shooter’s finger. The “single function” is that first engagement of the trigger. Everything else, the gun does automatically. Barrett is correct that the shooter typically leaves his finger in place. But, as Fletcher noted, another object—say, a “little plastic post”—could be placed in the same spot to serve the same function: automatic firing following a single function of the trigger. Precisely what federal law identifies as a forbidden “machinegun.”

A few conservatives tried to contest this point. Justice Neil Gorsuch insisted that the phrase “single function” describes the gun, not the shooter. In other words, the shooter might do just one thing, but the gun does many things. “People” don’t “function triggers,” Gorsuch scolded. The problem with this argument, as Fletcher said, is that it’s ahistorical. When Congress first enacted the restrictive statute in 1934, people did use the word “function” to describe what a shooter does to a trigger. While crafting the 1934 law, congressmen and even the president of the NRA used these words in the way that Gorsuch said nobody would—from the perspective of the shooter, not the gun.

Recognizing, perhaps, that this textual argument doesn’t work, Gorsuch pivoted to a different approach: accusing ATF of arbitrarily changing its mind. The justice told Fletcher that “through many administrations,” both “Republican and Democrat,” the government “took the view that these bump stocks are not a machine gun.” How could it switch positions when the underlying statute hasn’t changed? Kavanaugh hammered this point, too: He asserted that “Bush, Obama,” and even Sen. Dianne Feinstein all believed bump stocks were legal under existing law. Shouldn’t that give courts “reason for pause”?

This argument is part of the conservatives’ broader attack on the administrative state, a campaign to block agencies like ATF from interpreting and enforcing federal law themselves. But the claim is misleading if not just plain false. It just isn’t true that previous “administrations” said bump stocks were legal. What actually happened, as Fletcher told Kavanaugh, is that individual manufacturers sent bump stock–style devices to ATF seeking “guidance” on their legality. ATF issued private letters concluding that some of these devices were legal, while others were not, depending on their exact mechanisms. These letters did not represent the formal position of the agency, let alone the presidential administration. They merely gave manufacturers an affirmative defense if they later faced prosecution.

Over time, ATF realized that bump stocks were not being used or marketed in the way that manufacturers had represented to the agency. Consider one example that Greg Lickenbrock, associate director of investigations at Everytown for Gun Safety, pointed out to me: Early on, gun-makers told ATF that bump stocks were designed as an accommodation for people with limited hand strength. They then turned around and marketed them to the public as the next best thing to a machine gun.

After the Las Vegas shooting, ATF realized that the landscape for bump stocks had changed dramatically and took a fresh look at the devices—how they truly function and how they’re marketed in the real world. It realized that some of its past guidance was incomplete or incorrect. After soliciting public input, ATF then issued a formal rule stating that they are illegal. In no sense did the agency pull the rug out from under gun-makers and owners, as Gorsuch and Kavanaugh said. This entire episode shows ATF acting with full transparency, responsibly addressing new developments that prove the flaws of previous guidance.

Will Barrett see that? It’s no exaggeration to say that lives depend on it. The gun lobby does not care about the Las Vegas shooting. It does not care if innocent civilians are torn apart by 800 bullets in a minute. It cares about profit, and bump stocks make money. If Barrett can look past the vilification of ATF and the willful misreading of federal law, she should see that the bump stock ban is perfectly legitimate. Based on her past votes, there is some hope that she’ll reach the right conclusion. If she doesn’t, Las Vegas will serve as a preview for entirely avoidable slaughters to come.

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