Today the Supreme Court decided that a ban on bump stocks is unconstitutional.
In a 6-3 ruling on ideological lines with the court’s conservatives in the majority, the court held that an almost 100-year-old law aimed at banning machine guns cannot legitimately be interpreted to include bump stocks.
Writing for the majority, Justice Clarence Thomas said that a firearm equipped with the accessory does not meet the definition of “machinegun” under federal law.
Here is the ruling; Thomas’s opinion begins on page 5. As you know, “bump stocks” are an accessory used with semiautomatic weapons. They work with the firearm’s recoil to make the weapon fire repeatedly without the shooter pulling the trigger again and again. At least, that’s what I read in news articles; I’ve never fired one.
The question that Thomas addressed was whether a such a modified weapon could be classified as “machine gun.” Thomas writes that “Under the National Firearms Act of 1934, a ‘machinegun’ is “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.’” Any full-auto weapon, in other words. Ownership of machine guns and anything used to convert semiautomatic weapons into machine guns is tightly restricted by that same act. Thomas then gives us several pages of verbiage that argues a bump stock doesn’t really convert a semiautomatic weapon into a fully automatic one, so a bump stock is not covered by the NFA of 1934. You can read it all yourself if you care what it says.
Note that a bump stock was used in the 2017 Las Vegas mass shooting that killed 60 people, and also in the Buffalo mass shooting in 2022. And probably some others I’m not remembering. In 2017 after the Las Vegas shooting a poll found that 82 percent of Americans wanted bump stocks banned. But we must only pass laws approved by the Imperial Court, will of the people be damned.
The National Firearm Act of 1934, which has been amended a couple of times, is not a total ban on automatic weapons. It does, however, put so many restrictions on acquiring one that it’s just about impossible for civilians to do so legally. Or even illegally; I understand they are very scarce in the U.S. This act was challenged in court, and in United States v. Miller, 307 U.S. 174 (1939), the Court said, among other things, that the Second Amendment protects only the ownership of military-type weapons appropriate for use by a “well-regulated militia.” (There’s a long article here about the Miller decision that looks like an interesting read, but I haven’t gotten to it yet.) And the NFA remains the law of the land.
I don’t believe Miller has been overturned. The issue, of course, is that the old “well-regulated militia” enshrined in the Constitution, in the Second Amendment and in Article I, Section 8, paragraphs 15 and 16, carried muzzle-loading muskets that the men were required to obtain themselves. Hence, a right to own firearms had to be protected for the sake of the militia. But the state militia system — which, truth be told, was never all that effective at defense — was reorganized as the National Guard in 1903. Guardsmen don’t supply their own weapons, I don’t believe, so the purpose of protecting firearm ownership for the sake of the militia is kind of outmoded. The 2008 Heller decision then expanded the right to carry arms beyond just militia service, but didn’t eliminate the connection to the long-ago self-armed militia entirely.
But it seems to me that firearm technology has changed so drastically that any opinion about what is or is not a “military-type weapon” protected by the Second Amendment can get pretty arbitrary, especially since it was decided a long time ago that full-auto weapons are not protected. And I strongly suspect that if we could wake up and reconstitute the authors of the Second Amendment and show them what people are shooting now, they’d be shocked and horrified and want to repeal the amendment themselves.
Speaking of Clarence Thomas — see Harlan Crow Provided Clarence Thomas at Least 3 Previously Undisclosed Private Jet Trips, Senate Probe Finds at ProPublica.
Update: More analysis by Mark Joseph Stern at Slate:
The Supreme Court’s conservative supermajority carved a huge loophole into the federal prohibition against machine guns on Friday, striking down a bump stock ban first enacted in 2018 by the Trump administration. Its 6–3 decision allows civilians to convert AR-15–style rifles into automatic weapons that can fire at a rate of 400–800 rounds per minute. One might hope a ruling that stands to inflict so much carnage would, at least, be indisputably compelled by law. It is not. Far from it: To reach this result, Justice Clarence Thomas’ opinion for the court tortures statutory text beyond all recognition, defying Congress’ clear and (until now) well-established commands. As Justice Sonia Sotomayor explained in dissent, the supermajority flouts the “ordinary meaning” of the law, adopting an “artificially narrow” interpretation that will have “deadly consequences.” This Supreme Court will be squarely at fault for the next mass shooting enabled by a legal bump stock. …
… For years, the Bureau of Alcohol, Tobacco, Firearms, and Explosives had been monitoring these devices; the agency found some unlawful, depending on their precise mechanisms, but did not take a formal position overall. The Las Vegas shooting prompted ATF to conclude that bump stocks transform semiautomatic rifles into machine guns, rendering them illegal under a long-standing federal statute. That’s because this law bans “any part designed and intended solely and exclusively” for “converting a weapon into a machinegun.” And a “machinegun” is defined as any firearm that fires “automatically” by “a single function of the trigger.” After extensive deliberation, ATF found that bump stock–equipped rifles do exactly that.
Now the Supreme Court has decided that it understands firearms better than the ATF. Thomas’ majority opinion reads like the fevered work of a gun fetishist, complete with diagrams and even a GIF. The justice, who worships at the altar of the firearm, plainly relished the opportunity to depict the inner workings of these cherished tools of slaughter. (It’s no surprise that he borrowed the images from the avidly pro-gun Firearms Policy Foundation.) To reach his preferred result, Thomas falsely accused ATF of taking the “position” that bump stocks were legal, then “abruptly” reversing course after the Las Vegas shooting. This account is dead wrong: ATF took a careful, case-by-case view of different bump stock–like devices as gunmakers developed them, deeming some permissible and others unlawful. The gun industry pushed these devices into the mainstream by deceiving ATF about their purpose; in one case, for instance, a manufacturer won approval from the agency by claiming a bump stock was designed to accommodate people with limited hand strength—then turned around and marketed it as the next best thing to a machine gun.
After wrongly accusing the agency of a politically motivated about-face—and using this charge to discount its expertise and authority—Thomas adopted a highly technical interpretation of the statute that does not align with its text. A “single function of the trigger,” he wrote, does not mean a single pull of the trigger, but rather a complete “cycle” of the spring-loaded hammer inside the gun. Because the hammer (rapidly) resets to its original position between shots, Thomas concluded, “bump firing” involves more than “a single function of the trigger.” And because the shooter must “actively maintain” a particular stance to put pressure on certain parts of the weapon, the justice wrote, the resulting fire is not truly “automatic.”
