The deadliest mass shooting carried out by a single gunman in American history occurred on October 1, 2017 in Las Vegas, Nevada. With several rifles and the aid of “bump stocks”—devices that modify semi-automatic rifles so that they can be fired continuously with a single pull of the trigger—the shooter fired over 1,000 bullets in a span of ten minutes. Sixty people were killed and over 400 more were wounded.
In the wake of this tragedy and the subsequent public outcry, President Donald Trump directed the Bureau of Alcohol, Tobacco, Firearms, and Explosives to review how bump stocks are regulated. The ATF had an idea: Federal law prohibits the possession of machine guns and devices that convert weapons into machine guns, which are defined to mean a weapon that shoots “automatically more than one shot, without manual reloading, by a single function of the trigger.” And after Las Vegas, the ATF published an interpretive rule concluding that bump stocks are one such device. People with bump stocks needed to destroy them or drop them off at an ATF office, sometimes in exchange for cash, by March 26, 2019. Tens of thousands of bump stocks, some from owners and others from manufacturers, were given to the ATF for recycling.
The gun lobby had other ideas. Texas gun shop owner Michael Cargill sued to block the rule on March 25, 2019, and last year, the full Fifth Circuit Court of Appeals decided that the ATF’s rule was unlawful. According to the court, a “plain reading of the statutory language” and “close consideration of the mechanics of a semi-automatic firearm” revealed that bump stocks fall outside the statutory definition of machine guns. The Fifth Circuit also claimed that ATF was “short-circuiting the legislative process” by publishing the regulation—a rationale that effectively prevents the executive branch from implementing policy while punting with a wink to a useless Congress. The government appealed, and the Supreme Court heard oral argument in the case Garland v. Cargill, on Wednesday.
Abandoned belongings at the site of the Mandalay Bay shooting (Photo by Drew Angerer/Getty Images)
As with other major gun cases heard by the Supreme Court, Cargill has the Republican justices stuck between common sense and the cherished policy goals of the conservative legal movement. Bump stocks appear to satisfy all but the most tortured readings of the statutory language. A The New York Times analysis found that a fully automatic rifle could fire 98 shots in 7 seconds; the Las Vegas shooter, equipped with a bump stock, fired 90 shots in 10 seconds. Interpreting the statute so narrowly as to exclude guns modified with bump stocks from the definition of “machine gun” would hamstring both the power of Congress to enact forward-looking legislation, and the power of the executive branch to change its own policy stances. This is becoming a theme this term, as the Court has heard several cases seeking to curtail administrative agencies’ capacity to actually implement congressional directives on everything from financial market manipulation to environmental protection.
But allowing the government to function—to effectuate gun control, no less—often takes a backseat to the ability to use the judiciary to implement the Republican Party’s platform.
On Wednesday, oral argument in Cargill was heavy on technical details and low on common sense. Cargill’s counsel, Jonathan Mitchell—yes, that guy again—tried to persuade the Supreme Court that the phrase “a single function of the trigger” cannot be properly read to mean a single pull of the trigger.
The “function,” he argued, is what the trigger does to cause the weapon to fire, and bump stocks don’t cause weapons to fire, because the weapons were capable of firing before the bump stock was added. “What’s going on inside the gun after the trigger gets bumped is no different than what it would be if it were a semi-automatic rifle without the bump stock. And that’s why the government can’t win on this ‘single function of the trigger’ point,” Mitchell declared. It is the old “guns don’t kill people, people kill people” slogan again, but even more brainless. Bump stocks may not change the internal mechanics of a gun, but they obviously change what happens when someone pulls the trigger.
The liberal justices saw Mitchell’s argument as as much at war with the English language as it is with public safety. Justice Ketanji Brown Jackson observed that the “common usage of the word ‘function’ is not its operational design. It’s not the mechanics of the thing. It is what it achieves, what it’s being used for.” Jackson emphasized that Congress passed the ban on machine guns and conversion devices to capture a class of weapons in which a trigger is used once to achieve a particularly devastating result—firing a bunch of bullets.
Justice Elena Kagan chided Mitchell for being so hung up on the words “function of the trigger” without regard for their context. “What this statute comprehends is a weapon that fires a multitude of shots with a single human action,” she said. “Textualism is not inconsistent with common sense.”
(Photo by Chip Somodevilla/Getty Images)
Some of the conservative justices were more conflicted about whether the machine gun ban could apply to bump stocks, and found it less clear that pesky “function of the trigger” language could describe the shooter’s action. “Do people ‘function triggers’?” Justice Neil Gorsuch asked. “I thought, maybe somewhere in fifth grade grammar, I learned that was an intransitive verb.”
Justice Brett Kavanaugh, ever the intellectual, puzzled over the fact that the passage of the machine gun ban predates the invention of bump stocks, as if laws cannot apply in any context after their enactment. “You’ve referred a lot to the language in 1934 and around that time, but, of course, bump stocks didn’t exist around that time,” he said. “What are we to make of that?” Justice Amy Coney Barrett similarly suggested that banning bump stocks might require new congressional action. She acknowledged that guns with bump stocks function similarly to machine guns and told the government’s attorney she was “intuitively…sympathetic” to his argument, but still wondered: “Why didn’t Congress pass that legislation to make this cover it more clearly?”
Set aside, for a moment, that Congress’s language is already sufficient to cover stocks, if words mean anything anymore. The justices are well aware that Congress is not passing new substantive legislation, let alone gun safety legislation, anytime soon. By freezing laws in time, the justices elevate themselves over previous congresses, too.
