SCOTUS Kills Bump Stock Ban (Analysis)

The last few years have seen a slew of lawsuits and court activity around guns. The latest major action comes from the Supreme Court (SCOTUS) in the case Garland v. Cargill, which challenged the ban on bump stocks. SCOTUS struck down that ban, so it's time to take a look at what exactly the decision says, and what it might mean for the future.

Law & Regulation @ TFB:

• New Law: Gun Stores In New York State Must Display Warning Signs
• U.S. Gunmakers Ask Supreme Court To Quash Mexican Lawsuit
• Canadian Gun Grab Laws See Massive Costs, Before Even Starting
• New ATF “Engaged In The Business” Rule (Kinda) Blocked By Judge
• SCOTUS Takes Up Case Challenging 80% Receiver Rule

Disclaimer: This is not legal advice. Do not make any decisions based on this article. If you need to make a decision about something related to this article, please speak with an attorney licensed in your state. I am not your attorney and will not represent you.

Background

Bump firing has existed as a technique for quite some time. I recall hearing it discussed in a gun store in 2001 or 2002, but it definitely predates my first encounter. The general idea is to pull forward on the gun while it fires, causing it to return forward to “bump” into the trigger finger and fire again. It works well to increase the rate of fire but tends to result in poor accuracy.

Bump stocks attempt to use that recoil and reset motion in a more controlled manner. The support hand pulls forward, and the firearm reciprocates on the stock during firing. A shelf by the trigger supports the trigger finger and keeps it in place to hit the trigger as the gun returns forward. This results in a rate of fire that mimics some machine guns, when operated well.

After review, ATF issued a letter approving bump stocks for sale. ATF reversed course and issued an administrative rule banning bump stocks in the wake of the 2017 Las Vegas Shooting. That rule classified bump stocks as machine guns. Because no machine guns could be registered (civilian registration was closed in 1986), all bump stocks in circulation were illegal and had to be surrendered.

What Are Administrative Rules?

We can’t go any further without a brief aside to explain administrative rules. Rules are different than laws. The legislature writes laws and votes on them. But sometimes the legislature needs to control an area that is highly technical or too fast-moving to lend itself to the legislative process. In those cases, the legislature grants an agency the discretion to make rules that define or apply a part of the law.

The classic example is the Environmental Protection Agency, which makes rules about what chemicals are hazardous and in what concentrations. Getting Congress to create and maintain such a list would occupy all of their time, and they would be unable to handle any other matters. Instead, the bureaucrats at EPA can work through the chemistry and lab tests to make those decisions, writing rules as they go.

In some instances, this system works fine. But sometimes the agency creates rules that stretch their rulemaking authority from Congress. Other times agencies exceed them completely, and lawsuits ensue. The ATF’s decision to define bump stock as machine guns after their previous decision that they were not machine guns is the kind of agency rulemaking that leads to lawsuits. Several lawsuits were filed around the country, and eventually the matter made it to SCOTUS.

Majority Opinion

Justice Clarence Thomas delivered the opinion for the majority. That opinion held that the ATF exceeded its authority in creating the rule banning bump stocks. In particular, ATF went beyond this statutory definition of a machine gun:

“The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. 5845(b).

There are two main issues. The first is with the “function of the trigger.” The majority found that each time the trigger finger hits the trigger it is a separate function of the trigger. Though there is a device that accelerates the firing rate, the actual mechanism of firing the gun with separate functions of the trigger is unchanged. The ATF contended that there was only one function of the trigger, on the initial pull. Each shot after that was a “bump” rather than a function, and thus a bump stock renders the gun a machine gun. The justices were not convinced by this reasoning.

The other main issue was that the firing was not done “automatically” because the gun needed to be pushed forward against the recoil. That additional effort or action means that the gun is not firing automatically. A telling example that is used to illustrate this point is the Ithaca Model 37 shotgun, which can slam fire (as the trigger is held down, the shotgun fires each time the pump moves into the forward position). ATF maintains that the Ithaca 37 is not a machine gun, though it fires by holding the trigger down and causing recurring shots by the motion of the support arm.

One final point was a rule of construction called the presumption against ineffectiveness. This is a guideline that judges apply when looking at a rule, if there are two ways to read the rule, they should presume that the way that does not make the rule ineffective is the correct reading. This makes sense on a foundational level (why would an agency, or Congress, want rules that are ineffective?) but it is not strong enough to beat out the other issues raised with this rule.

Justice Alito wrote a brief concurrence with the majority. He found no other way to read the statute but saw that bump stocks can be as dangerous as machine guns. He invites Congress to change the law to treat bump stocks the same as machine guns.

Dissent

Justice Sonia Sotomayor wrote the dissent, with Justice Jackson and Justice Kagan joining. The dissent takes the approach that bump stocks seem like machine guns, and are therefore machine guns. Take this quote for example:

“When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.”

The dissent disagrees with the majority’s reading of the statute and insists that bump stocks are machine guns. After much discussion (the dissent is 18 pages, and the majority opinion is 19 pages) about dictionary definitions, legislative history of terms, and common understandings of words, the dissent closes by restating that bump stocks are machine guns because pushing the handguard forward is no different than holding down the trigger on an M16.

Looking Forward

So what does this mean going forward? I would guess we will see a lot of bump stocks emerge from hiding places in the coming months. We may also see a resurgence in the sale of this type of device. I have used bump stock before and still think they are a gimmick, so I won't be rushing out to buy one (unlike the crowd that bought them all up from the shop where I work when the ban looked imminent).

What I am most interested to see is the impact of this case on other ATF administrative rule cases. The Cargill decision is not a Second Amendment case. It is a case of administrative rules that also happens to deal with guns. The ATF has made many rules in recent years, including rules against stabilizing arm braces, 80% lowers, and private party sales. ATF has been sued over every one of them. Will ATF double down and continue defending those rules? Or will they back off and concede defeat on some or all of them? Time will tell. We will also need to see what happens in the Loper Bright case, which could radically change how much latitude agencies get when they defend their rules in court. But for now, this win is a good step in the direction of keeping the ATF in check.