Legal Docket: Are bump stocks machine guns?

NICK EICHER, HOST: It’s The World and Everything in It for this 11th day of March, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. Our pledge to you is that over time if you listen every Monday you’ll hear something about every single oral argument heard by the justices of the U.S. Supreme Court.

Well, we expect opinions to be handed down now til the term ends in June. Landmark decisions around the meaning of “proof beyond a reasonable doubt,” the Takings Clause and property rights, veteran’s benefits, arbitration, to name just a few, and the reach of the administrative state, several of those.

EICHER: Including an oral argument we’ll tackle today, the case of Garland versus Cargill. It’s about guns, although it’s not a question of the Second Amendment right to keep and bear arms.

Rather, it’s about how to interpret a statute from 1934, the National Firearms Act. It made possession of a machine gun a federal crime, and defined a machine gun as: any weapon which automatically shoots more than one shot by a single function of the trigger. That includes any attachment that can convert an ordinary firearm into a machine gun.

REICHARD: I called one of the parties in the case of Garland versus Cargill. Not Garland. The other guy.

MICHAEL CARGILL: My name is Michael Cargill, owner of Central Texas Gun Works. All separate words.

Cargill’s business is selling guns and ammo along with training and safety courses. He also bought some bump stocks to sell.

CARGILL: A bump stock is a device, a stock that you pretty much add to a rifle and what it does is it just allows a shooter to fire the rifle a little faster.

Once you attach a bump stock to a rifle, it causes the trigger to bump repeatedly into your finger from the recoil energy of the gun once it fires. Hence, the name; the trigger bumps to your trigger finger so you don’t have to pull it. Your finger doesn’t move; it’s the trigger that resets.

Bump stocks used to be legal until this happened:

SOUND: [Massacre in real time]

CARGILL: What happened was back in 2017, a madman decided that he was going to shoot at concert goers at a Las Vegas concert. And so at that time, the government decided they were gonna ban them because of that heinous crime.

EICHER: Thousands of country music lovers attending an outdoor concert endured an 11-minute massacre. 60 people died, hundreds were injured. The attacker opened fire from a nearby hotel, the 32nd floor. He fired more than 1000 rounds using bump stocks on several weapons.

REICHARD: Public pressure mounted to do something. President Donald Trump directed a change to the way bump stocks are classified. Days later, the ATF (The Bureau of Alcohol, Tobacco, Firearms and Explosives) changed the definition of machine gun to include bump stocks and make them illegal.

So gun shop owner Cargill surrendered his bump stocks. Then he sued to challenge the ATF as exceeding its authority.

CARGILL: It's about an agency within the government deciding that they're going to create, or write, a law. And that should be reserved for Congress. We elect our congressmen and women to go to D.C. to represent us and to create law, write law, whatever, not bureaucrats that are in agencies. That's not what that's supposed to be used for.

EICHER: At oral argument, though, debate revolved more around how bump stocks actually work. And whether they fit under the meaning of the legal phrasing: “single function of the trigger” and “automatic.”

Arguing against the bump stocks for the government, Brian Fletcher, Principal Deputy U.S. Solicitor General:

BRIAN FLETCHER: Those weapons do exactly what Congress meant to prohibit when it enacted the prohibition on machine guns, and those weapons are machine guns because they satisfy both disputed parts of the statutory definition.

REICHARD: For the other side, Cargill’s lawyer Jonathan Mitchell argued that is not what the law says.

JONATHAN MITCHELL: The statutory definition of machine gun extends only to weapons that fire more than one shot automatically by a single function of the trigger. Mr. Cargill's non-mechanical bump stocks fall outside the statutory definition for two separate and independent reasons.

Reason one: a rifle with a bump stock can only fire one shot per function of the trigger because the trigger must reset after every shot and has to function again before another shot.

MITCHELL: The statute is concerned only with what the trigger does and whether a single function of that trigger produces more than one shot.

EICHER: Reason two: everything about the bump firing process is manual. There’s nothing automatic, like spring or motor involvement.

MITCHELL: The process depends entirely on human effort and exertion as the shooter must continually and repeatedly thrust the forestock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated.

Justice Amy Coney Barrett posed a hypothetical to Fletcher for the government:

JUSTICE BARRETT: Let's imagine someone builds a fully automatic machine gun, and I won't try to come up with the technology for exactly how this is going to happen, but they install a tripwire on their property and they just leave the gun there unattended, walk away. Somebody trips the wire and then it begins shooting lots of rounds. Does that satisfy your definition of a machine gun?

FLETCHER: I think it does, yes.

BARRETT: Why?

EICHER: Because, Fletcher answered, the tripwire still qualifies as one act by a person that then initiates a multi-shot fire. Then Justice Neil Gorsuch asked a grammatical question:

JUSTICE GORSUCH: Let me ask you about the function of the trigger. You liken it to a stroke of a key or a throw of the dice or a swing of the bat. Those are all things people do. A function of the trigger, do people function triggers? I thought, you know, maybe somewhere in fifth grade grammar I learned that was an intransitive verb.

FLETCHER: Yeah.

GORSUCH: And people don't function things. They may pull things, they may throw things, but they don't function things. And, again, it's a very old statute, and it was designed for an obvious problem in the 1930s and Al Capone, and people were -- with a single function of the trigger, that is, the thing itself, was moved once, and that's what they wrote. And maybe they should have written something better. One might hope they might write something better in the future. But that's the language we're stuck with.

REICHARD: Both sides endured tough questions. Justice Elena Kagan wasn’t so sure about the arguments for Cargill, the gun shop owner. Listen to this exchange with Mitchell:

JUSTICE KAGAN: I view myself as a good textualist. I think that that’s the way we should think about statutes. It’s by reading them. But, you know, textualism is not inconsistent with common sense. Like, at some point, you have to apply a little bit of common sense to the way you read a statute and understand that what this statute comprehends is a weapon that fires a multitude of shots with a single human action. Whether it’s a continuous pressure on a conventional machine gun, holding the trigger, or a continuous pressure on one of these devices on the barrel. I can’t understand how anybody could think that those two things should be treated differently.

MITCHELL: Well, they're treated differently because the statute turns on a single function of the trigger.

Justice Samuel Alito asked another sort of question:

JUSTICE ALITO: Can you imagine a legislator thinking we should ban machine guns, but we should not ban bump stocks? Is there any reason why a legislator might reach that judgment?

MITCHELL: I think there is. Bump stocks can help people who have disabilities, who have problems with finger dexterity, people who have arthritis in their fingers.

That was a bit too much for Justice Sonia Sotomayor:

JUSTICE SOTOMAYOR: Why would even a person with arthritis, why would Congress think they needed to shoot 400 to 7- or 800 rounds of ammunition under any circumstance? If you don't let a person without arthritis do that, why would you permit a person with arthritis to do it?

MITCHELL: They don't shoot 400 to 700 rounds because the magazine only goes up to 50. So you're still going to have to change the magazine after every round.

EICHER: Cargill was in the courtroom listening to all this, and he was getting worried things were going off track.

CARGILL: What concerned me is the fact that a Supreme Court justice would think that a particular firearm can actually fire 800 rounds a second or 800 rounds a minute. I don't know any gun that can fire that. I don't know what gun can actually hold that type of capacity – 800 rounds a minute, 800 rounds a second. There's no handgun. There's no rifle that you can do that with.

Cargill was relieved when the arguments turned from firing capacity to the administrative state. Here’s Justice Gorsuch:

JUSTICE GORSUCH: I can certainly understand why these items should be made illegal, but we're dealing with a statute that was enacted in the 1930s. And through many administrations, the government took the position that these bump stocks are not machine guns. And then you -- you adopted an interpretive rule, not even a legislative rule, saying otherwise that would render between a quarter of a million and a half million people federal felons and not even through an APA process they could challenge, subject to 10 years in federal prison, and the only way they can challenge it is if they're prosecuted, and they may well wind up dispossessed of guns, all guns in the future, as well as a lot of other civil rights, including the right to vote.

Gorsuch pointed out that one of the sponsors of a bump stock ban was Dianne Feinstein from California, the senator who died last year. At the time, she derided the ATF’s banning bump stocks because she recognized that meant the ban wasn’t on solid legal footing.

Or, as Cargill put it:

CARGILL: You know, we've heard of that schoolhouse rock song, how does a bill become law? Well, someone in Congress writes a bill, they both vote on it in both houses. It then goes to the president, president signs it, and that's how it becomes law. Not because an agency within the federal government decides they're going to create a right law.

REICHARD: So I ended our conversation by asking Cargill what he’d say to one of these administrators if they were politically accountable in the same way his elected congressman would be.

CARGILL: The United States of America, we have a constitution. We need to follow that constitution. And fortunately, the Second Amendment is the second on that list. And people try to equate that with driving and cars and vehicles. Well, let me explain this to you. Driving a car, that's a privilege. But the Second Amendment, that is a right. That's why it's called the Bill of Rights. It is not called the Bill of Needs.

Strong emotions on both sides, for sure.

And that’s this week’s Legal Docket!

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