Here is What the Justices Had to Say About Bump Stocks

posted on March 1, 2024
Tim Sackton courtesy Flickr

On Feb. 28, I attended the U.S. Supreme Court’s oral arguments in the case of Garland v. Cargill regarding bump stocks (or bump-fire stocks). NRA-ILA has filed a friend-of-the-court brief in the case, as it has in several related cases, urging the court to invalidate the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) 2018 rule in which they reclassified bump stocks as machine guns.

The question before the Supreme Court was whether a semi-automatic firearm equipped with a bump stock should be reclassified by the ATF as a machine gun (or “machinegun”). The National Firearms Act (NFA) of 1934 defines a “machinegun” as “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.” The definition also encompasses “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”

As NRA-ILA recently noted, the ATF had determined that bump stocks were not machine guns on at least 10 separate occasions from 2008 to 2017. In 2018, the ATF announced that it would review its regulatory definition, at which point NRA-ILA filed comments opposing a reinterpretation. The ATF, nevertheless, proceeded with the reclassification.

“ATF got it wrong,” the NRA-ILA brief argues. Congress defined machine guns “based on the trigger’s mechanics, nothing else.” But in reinterpreting “machinegun,” ATF “moved the goalposts” and looked to factors beyond the “function of the trigger.”

The oral arguments in the U.S. Supreme Court included discussions on the mechanics of a gun, the definition of the phrase “function of the trigger,” Congress’ intent in creating the NFA, and whether the ATF has the authority to reclassify a previously non-controlled and previously approved accessory into a controlled item whose possession could carry criminal penalties.

Deputy Solicitor General Brian Fletcher, arguing in favor of the ATF’s reclassification, contended that bump stocks allow semi-automatics to fire at a more-rapid rate via “one action.” Much of the discussion centered on the rate of fire possible between semi-automatics, semi-automatics equipped with bump stocks and fully automatic or machine guns, but the rate of fire is not noted in any of the statutes.

Fletcher and some of the justices also suggested that “function of the trigger” could be defined as “anything starting the sequence” of firing rather than as the physical item or its mechanical action. Jonathan Michell, representing Michael Cargill, a veteran and gun-store owner, said that the government should be held to the exact words of the statute, which limited the meaning of “function.”

The broader interpretation of the phrase “function of the trigger” was previously rejected by eight of the 16 judges on the Fifth Circuit U.S. Court of Appeals. In a 2023 ruling, these judges determined that the statute “unambiguously fails to cover non-mechanical bump stocks.” They emphasized the need to read the statute as written: “Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.”

Further, 12 of the 16 judges determined that even were the “function of the trigger” to be read differently, they would still need to rule in Cargill’s favor: “But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability. A rich legal tradition supports the ‘well known rule’ that ‘penal laws are to be construed strictly.’ […] It is the legislature, not the Court, which is to define a crime, and ordain its punishment. […] The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the […] scope of criminal prohibitions.”

NRA-ILA’s brief to the Supreme Court in Gardner v. Cargill also notes that for 200 years, the Supreme Court has consistently held that “the power to create crimes lies exclusively with Congress.” Thus, when criminal liability is on the line, “ATF’s position is ‘not relevant at all.” Even the late Dianne Feinstein, a Democrat senator from California noted for the intensity of her anti-Second Amendment stances, supported this interpretation. In 2017, she said, “The ATF lacks authority under the law to ban bump-fire stocks. Period. Legislation is the only answer and Congress should not attempt to pass the buck.”

It was the question over who has the actual authority to ban bump stocks—Congress or the ATF—that led to 13 of the 16 judges on the Fifth Circuit ruling against the ban, finding that such a prohibition would require an act of Congress.

When asked about bump-stock owners being subject to prosecution for something they thought was legal—after all, Justice Neil Gorsuch noted to laughter, most citizens aren’t likely to “sit down and read the Federal Register”—Fletcher maintained that those who previously purchased the items would not be prosecuted, and that the five-year statute of limitations was about to expire anyway.

When it came to questions on why the ATF reversed its interpretation of bump stocks, Fletcher argued that the ATF’s previous classification letters were “informal” and mistaken.

The Court should decide the case before the current term ends in June.



[Editor's Note: A correction has been made to attribute the quote about reading the Federal Register to Justice Neil Gorsuch.]



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