Bump-Stock Ruling Reveals a Supreme Court Obsessed With Word Play

Gun Rights

With its recent bump stock ruling, we can see that semantics continue to dominate Supreme Court rulings. Ivory-tower manipulation of word meaning is the favorite way for today’s court to decide cases, and it hasn’t mattered to the court how much this word play upends American life.

On June 14, in Garland v. Cargill, the court held that a federal statute banning machine guns did not cover bump stock devices that attach to semi-automatic weapons to make them fire like machine guns. Bump-stocked guns being the equivalent of machine guns wasn’t enough for six of the nine justices because of their myopic scrutiny of the words “single function of the trigger” and their decision that a “function” of the trigger is not the same as a “pull” of the trigger.

Had “pull” meant the same thing as “function,” bump stocks would be illegal today. But because, to the majority, “function” focused on the internal mechanisms of the weapon, Americans eager to spray hundreds of bullets—at whatever or whomever—can once again do so conveniently. Forget that the “function” language came from the NRA and was used interchangeably by its president with “pull” of a trigger. Forget how dangerous the devices are—one was used to kill 60 and wound 412 at a Las Vegas concert in 2017. The Supreme Court is just about words—so they say.

The Supreme Court
The Supreme Court’s front porch in 2023.
The Supreme Court’s front porch in 2023.
Jason Fields

Indeed, words, not human reality, superficially was the key to the Court’s opinion in the Dobbs case that overturned Roe v. Wade in 2022 and was written by Justice Samuel Alito. According to the court, deciding whether the liberty the Constitution protects includes a woman’s right to an abortion, turned on the word “abortion” itself. It’s not in the Constitution Alito observed, so a woman’s right to it depended on a woman’s right to “abortion” in “history and tradition.” To no one’s surprise, Alito revealed that women had virtually no rights in history and tradition, so women lost the right to an abortion.

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In both cases, selective semantics decided the case. In Dobbs, the Court chose to focus on the history of “abortion” rather than the history of the right to “privacy” relied on in Roe v. Wade—privacy being a long-cherished right in American history and tradition. In Cargill, mechanical “function” was the focus rather than the actual function of the mechanics—pulling a trigger once to fire multiple bullets.

One problem with the court’s approach is that it is formalist, pedantic—soulless. It wrongly suggests that the court should give the words in a statute a form-over- substance significance that focuses on dictionaries, and historic word usage while ignoring the basic right at stake or the basic evil a law aims at ending. In the abortion case, an anti-abortion court could have turned the decision on weighing a life or potential life protected by the Constitution against the liberty of a woman to control her own body—another right protected by the Constitution. Rather than methodically marching to the foregone conclusion that women had no rights historically, the court could have overturned Roe simply by restriking the balance of rights in favor of a life or potential life that might be lost in abortion. Rather than spending their time fixated on the interior life of a gun, the court in Cargill could have considered what the law was obviously aimed at limiting—guns that mindlessly spew multitudes of bullets and threaten public safety. Laws have values in them—life, liberty, public safety, etc., and when the court ignores them in favor of games with words, it undermines respect for the institution.

And it’s the word games that are most worrying. The trouble with semantics is that the court can use them to appear to be objective—compelled rather than convinced. But this appearance is just a thin scrim in front of views the court would do better to openly express and convincingly justify. The public knows the current court majority opposes abortion and favors guns. The 6-3 votes in both cases have surprised nobody. So next time when the court rules on a highly charged public issue, it should admit its decision is no mechanical exercise. It should admit it’s making a judgment call and justify it in plain terms. After all, judges use judgment. They write opinions. It’s time for this court to admit it.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.

Uncommon Knowledge

Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.

Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.

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