February 29, 2024
By David Codrea
The questions and arguments weren’t going as some had envisioned in front of the Supreme Court Wednesday in Garland v. Cargill , the much-anticipated bump stock case. At the end of the day, the best word to describe the court was “divided,” and the outcome for gun owners was uncertain.
Principal Deputy Solicitor General Brian H. Fletcher argued on behalf of the government and Johnathan F. Mitchell represented gun store owner and respondent Michael Cargill.
It was not the slam dunk some YouTube “gunfluencers” had been priming their followers into believing the case would be, with further hopes that, when won, they’d have a beachhead from which victories against other ATF rules, notably on frames and receivers, and on pistol stabilizing braces, would be launched. Precedent would be made.
Common sense tells us that bump stocks are not machineguns. But so many technical questions by supposedly “conservative” justices, left gun owners wondering at the end of the day if any would betray them, and if so, how many. And that has political implications. After all, the bump stock ban was ultimately Donald Trump’s baby. And the major appeal he has gun owners in November is their counting on his appointment of “Second Amendment-friendly” justices.
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Inarguably, Trumps picks during his first term, Neil Gorsuch, Brett Kavanaugh, and Amy Coney
Barrett, are “better” than the Democrat loyalists on the bench. It goes without saying that Elena Kagan, Sonia Sotomayor, and Kenji Brown Jackson will favor the government’s side, and Jackson showed her understanding when she opined, “The function of this trigger is to cause this kind of damage, 800 rounds a second or whatever.” (Yes, she actually said that.)
This pretty much defined the day. Those expecting a Second Amendment defense decrying Chevron deference overreach instead heard the justices trying to grasp competing definitions of “function of a trigger” along with scenarios unlikely to persuade judges who equate “common use” with widespread commercial popularity.
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After attorney Jonathan Mitchell suggested bump stocks might help someone with a medical condition, Justice Sonia Sotomayor asked, "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?"
There were no other arguments to introduce…? Really?
“We don't think function of the trigger means movement of the trigger. We think it means act of the shooter,” Brian Fletcher asserted. “That's how it was used at the time … including the president of the NRA when he proposed the language that became this statute to Congress.”
He meant Karl Frederick, NRA president in 1934 testifying to Congress on the National Firearms Act, who was proud to help pass Washington DC’s strict gun laws and also endorsed, among other things, prohibition on concealed carry without a justifiable need license, waiting periods, turning lists of purchasers over to police, and more.
“The problem with the government's argument… is that the phrase ‘single function of the trigger’ can only be construed grammatically to focus on the trigger's function and not on what the shooter does to the trigger,” attorney Mitchell insisted. “The trigger is the device that initiates the firing of the weapon. A bump stock does not change the trigger in any way. It does not alter the nature of the trigger… a bump stock equipped rifle can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired.”
This was the crux of the proceedings, but there were other telling statements made by the “friendly” judges that raised concerns.
Justice Thomas seemed interested in comparing how a bump stock works as compared to an M16. At times, he either was having doubts or playing devil’s advocate, asking “why we shouldn’t look at a broader definition” due to “carnage” from machineguns during Prohibition.
Chief Justice Roberts questioned where and how you place your hands, and later asked “I think we -you would agree that the bump stock accelerates the rate of fire? Why wouldn't you then take the further step of saying it changes the nature of the trigger in doing that?”
In addition to technical questions, Justice Barret added “I think the question is, why didn't Congress pass that litigation --I mean that legislation to --to make this cover it more clearly?”
“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 machineguns,” Justice Gorsuch offered, then expressing concerns that this interpretive rule “ 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.”
Justice Kavanaugh followed up on Gorsuch’s concerns that people unaware of the prohibition could be convicted, and questioned the grammar, saying “people don't function things. They may pull things, they may throw things, but they don't function things.”
“What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the Fifth Circuit decision?” Justice Alito asked. “Can they be prosecuted?” (Bottom line: Yes.)
“Why isn't the function of the trigger to release the hammer from the sear so that the hammer can swing forward and strike?” he asked. “Isn't that the most straightforward interpretation of this?”
He later asked the question that goes to the heart of the argument that this is the purview of Congress, not of ATF: “Can you imagine a legislator thinking we should ban machineguns, but we should not ban bump stocks? Is there any reason why a legislator might reach that judgment?”
Now we wait and see what the Court decides. What’s clear though, even if they don’t disappoint us on this decision, is that their view of the Second Amendment, particularly Gorsuch, Cavanaugh, and Barrett, and probably Roberts, who has let us down before, does not extend to a militia of the whole people entitled to arms in common use at the time by the same militaries the Constitution expects them to prevail over. As for their deference to gun bans being legitimate if enacted by Congress instead of ATF, “shall not be infringed” makes no exceptions for legislators.
They’re arguing over minutiae, over how many angels can dance on the head of a pin. Trigger function doesn’t matter, we the people are entitled to have arms as our birthright, including Justice Thomas’s M16 and more, what Tench Coxe called “every terrible implement of the soldier.” And no branch of government has the legitimate delegated Constitutional authority to say otherwise.
What’s also clear is that unless the court is shored up with more justices who understand that, this court is not ready to take on repeal of the Hughes Amendment or the NFA itself, and bans or “redefined” classifications on semiautos, new transfer bans, tax stamp spikes, magazine capacity bans, and more, are just a Democrat sweep away.
EDITOR’S NOTE: The US Supreme Court is not in agreement with the Founding Fathers on why citizens are to own military weapons (or even semi-auto rifles), and because of that, gun owners, gun organizations, and 2nd Amendment attorneys should expect and prepare legal strategies for court losses. As long as Second Amendment activists, as well as conservative politicians, use defenses for ownership such as gun collecting, “fun shooting”, or only self-defense against robbers and rapists, states will continue to ban semi-auto firearms and their accessories. There is now a real threat that even registered transferable machinegun ownership will be further restricted or possibly ended altogether. The Founders wanted the citizenry to possess military weapons as a defense against foreign invasion and possible tyranny imposed by their own government which history shows us often results in loss of liberty and genocide – that is the purpose of the Second Amendment (which is a government-recognized God-given right), not just for defense against common criminals. It is nonsensical for any politician, judge, or even 2A advocate to say, “The Second Amendment was put in place as a civilian defense against tyranny.” and then in the same breath state, “But, machine guns and other dangerous military weapons should be banned from civilian ownership.” If the Founders didn’t want the citizenry to own the same weapons as the military, they would have restricted them to crossbows and catapults instead of muskets and cannons (the most modern weapons available at the time), no such restriction was ever put in place by them. History hasn’t changed. Human nature hasn’t changed.
If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com .
