To the ignorant and opportunistic, Friday’s Supreme Court decision invalidating a Bureau of Alcohol, Tobacco, and Firearms regulation that had banned a firearm accessory known as the “bump stock” looks like a Second Amendment decision. The Supreme Court invalidated federal law that restricted gun ownership, therefore this must have been a Second Amendment decision.
But in this case, Garland v. Cargill, the Second Amendment had nothing to do with the reasoning of the Court and anyone who suggests otherwise is letting Congress off for not doing its job of legislating.
Almost 90 years ago, in response to the St. Valentine’s Day Massacre and other mob violence, Congress passed the National Firearms Act. which, among other things, restricted access to “machineguns,” which the legislation defined as any weapon with the ability to “shoot, automatically more than one shot … by a single function of the trigger.”
For decades, the ATF held that the National Firearms Act restrictions on machine guns did not apply to “bump stocks,” which is a firearm accessory that, once installed on a semiautomatic rifle, makes it easier to “bump fire” the rifle. Bump firing is a technique, which does not require a bump stock, where the shooter uses the recoil of a firearm to trigger a semiautomatic rifle at rapid rates that approach those of a machinegun.
Following the mass shooting in October 2017 in Las Vegas, in which one man used a semiautomatic rifle equipped with a bump stock to murder 58 people, President Donald Trump ordered the ATF to change course. Although several pieces of legislation were introduced in both chambers of Congress that would have changed the law to ban bump stocks explicitly, Speaker Paul Ryan (R-WI) decided not to bring such legislation to the floor and suggested it would be easier politically for Trump to make a regulatory change. Trump did so. And a gun owner in Texas then sued the ATF, claiming it had no legal authority to ban bump stocks.
The problem for Trump and the Biden administration that defended his regulation in court is that under the statute, semiautomatic weapons are clearly not machine guns. As Justice Sonia Sotomayor writes in her dissent, “Semiautomatic weapons are not “machineguns” under the statute.”
Unfortunately, Sotomayor then continues, “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.” She reasons that since a semiautomatic rifle equipped with a bump stock can fire like a machine gun, it should be considered a machine gun under the law.
But there are many ways a semiautomatic weapon can be modified to increase the rate of fire and, as Sotomayor conceded in her dissent, one does not even need an accessory to bump fire a semiautomatic rifle. If Congress wanted to ban rifles, or rifle accessories, that enable a weapon to achieve a certain rate of fire, it could have done so. It could have done so in 1934 or 2017. But it didn’t.
Which is why Progressive Caucus Chairwoman Pramila Jayapal was speaking falsely when she said of the Court’s decision, “The bump stock ban had bipartisan support following the deadliest mass shooting in U.S. history — this ruling is another example of SCOTUS legislating from the bench, against the will of the people.” In this case, as in others, it is not easy to discern whether the congresswoman is demonstrating ignorance, dishonesty, stupidity, or all three.
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Whether or not there was bipartisan support for a bump stock ban after the Las Vegas shooting, Congress did not act on it. No new law was passed. The Supreme Court cannot treat Congress’s desire as law if the legislature merely introduces legislation by does not pass it.
As Justice Samuel Alito wrote in his concurrence with the majority, “There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law — and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.”