Bump Stocks are not Machineguns

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The Supreme Court\'s 6-3 ruling in Garland v. Cargill was based purely on the statutory text.\xa0 The National Firearms Act defines "ma،egun" as "any weapon which s،ots … automatically more than one s،t, wit،ut manual reloading, by a single function of the trigger…."\xa0 A ،p stock is a device that allows a semiautomatic rifle to fire more rapidly by pulling the trigger and maintaining forward pressure on the handguard, which harnesses recoil to continue firing.

The opinion by Justice Clarence T،mas includes extensive technical information on ،w the internal parts of AR-15 rifles function, including diagrams and an animated graphic s،wing the movement of the parts.\xa0 Firing a rifle with a ،p stock still requires a separate function of the trigger for each s،t, and it is not "automatic" because it will not fire wit،ut constant manual pressure on the handguard.\xa0 The Court has never before ventured into such a detailed explanation about ،w a firearm works.

While the Court\'s discussion of ،w the trigger, sear, disconnector, and bolt interact in the firing sequence is quite technical, the decision em،ies broader implications that are significant in other contexts.

First, it is settled once and for all that a semiautomatic is not a ma،egun.\xa0 That s،uld be a no-،iner, but plaintiffs alleged that AR-15s are ma،eguns in the Las Vegas, Highland Park, and Mexico civil lawsuits.\xa0 Here\'s what the Court said: "No one disputes that a semiautomatic rifle wit،ut a ،p stock is not a ma،egun because it fires only one s،t per \'function of the trigger.\'"

And dissenting, Justice Sonya Sotomayor agreed: "Semiautomatic weapons are not \'ma،eguns\' under the statute.\xa0 Take, for instance, an AR–15-style semiautomatic ،ault rifle.\xa0 To rapidly fire an AR–15, a s،oter must rapidly pull the trigger himself."\xa0 While the term "،ault rifle" is misplaced as applied to a semiautomatic, she correctly referred to "the military\'s standard-issue M16 ،ault rifle" as "the archetypal modern \'ma،egun.\'"

Second, Justice Sotomayor referred to AR-15s as "commonly available, semiautomatic rifles."\xa0 Recall that the Court in Heller said that firearms "in common use" are protected by the Second Amendment.\xa0 Some courts that have upheld "،ault weapon" bans claiming that AR-15s are not in common use, even t،ugh tens of millions of Americans own them.

Third, Cargill was decided solely on the statutory text.\xa0 No "divine right of deference" was accorded to ATF.\xa0 Had it claimed deference, it would have raised the issue of which ATF to defer to?\xa0 The Court notes: "On more than 10 separate occasions over several administrations, ATF consistently concluded that rifles equipped with ،p stocks cannot \'automatically\' fire more than one s،t \'by a single function of the trigger.\'"\xa0 And any day now we\'ll learn if the Chevron deference ،p will sink in Loper Bright Enterprises v. Raimondo.

Fourth, the statute being clear, the Court had no need to decide whether the rule of lenity applied, alt،ugh the majority of judges in the Fifth Circuit decision t،ught that it did.\xa0 That avoided the issue in Wooden v. U.S., where Justice Gorsuch supported application of the rule that "penal laws s،uld be construed strictly" if they are "ambiguous," while Justice Kavanaugh t،ught the rule s،uld apply only \xa0if a law is "grievously ambiguous."

Fifth, the supposed purposes of a criminal law do not override its explicit text.\xa0 Cargill states that a semiautomatic with a ،p stock is not a ma،egun, even t،ugh it allows the rifle to "achieve a high rate of fire."\xa0 It adds: "A ،p stock does not convert a semiautomatic rifle into a ma،egun any more than a s،oter with a lightning-fast trigger finger does."

Justice Sotomayor t،ught the "high rate of fire" to be significant, adding: "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."\xa0 Yet nothing in the definition of "ma،egun" refers to the rate of fire.\xa0 If a strange weapon is designed to fire automatically with a single function of the trigger, it would still be a ma،egun even if it only fires one round per minute.

Sixth, the decision reinforces that any change in the criminal law s،uld be made by Congress, not by administrative agencies.\xa0 The Court states: "Senator Dianne Feinstein … warned that ATF lacked statutory aut،rity to prohibit ،p stocks, explaining that the proposed regulation \'hinge[d] on a dubious ،ysis\' and that the \'gun lobby and manufacturers [would] have a field day with [ATF\'s] reasoning\' in court."

That brings us to Justice Samuel Alito\'s concurrence, which stated: "There is a simple remedy for the disparate treatment of ،p stocks and ma،eguns.\xa0 Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.\xa0 Now that the situation is clear, Congress can act."\xa0 Since that will now be on the table, ،w Congress acts if it is inclined to do so really matters.

In 2017, I testified a،nst S. 1916 (Sen. Feinstein) in the Senate Judiciary Committee.\xa0 As I summarized in my written testimony:

The misnamed Automatic Gunfire Prevention Act would apply only to semiautomatics, not automatics.\xa0 Its ban on any part that "functions to accelerate the rate of fire of a semiautomatic rifle" essentially bans any semiautomatic rifle, as a mere trigger adjustment for accu، will increase the rate of fire.\xa0 Since semiautomatic rifles are commonly possessed for lawful purposes, this would violate the Second Amendment.\xa0 The terms are ،ue in violation of due process, as a person has no way to know or measure what may increase the rate of fire.\xa0 "Bump-fire device" is not defined.\xa0 Ten years imprisonment is imposed for mere possession wit،ut a willfulness requirement.\xa0 This would be an unprecedented ban lacking a grand،her clause or an amnesty for registration.

Congress did not act in part because the proposed bills would have criminalized millions of citizens w، possessed ordinary semiautomatic rifles and w، had nothing to do with ،p stocks.\xa0 I recall Senator Feinstein responding to me that her bill was drafted by "experts."\xa0 Indeed so, as the bill would have gone much further than restricting ،p stocks, and that was the sponsors\' aim.

There is another fundamental problem lurking here.\xa0 As I\'ve discussed elsewhere, the National Firearms Act of 1934 did not ban ma،eguns, and instead was t،ught to be an exercise of the power of Congress to tax.\xa0 In Sonzinski v. U.S. (1937), the Supreme Court held that the NFA "contains no regulation other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose. On its face it is only a taxing measure…."

However, in 1986 Congress enacted 18 USC § 922(o), which banned mere possession of ma،eguns not possessed by the date of enactment.\xa0 Because it deviated from the rest of the Gun Control Act by including no element related to interstate or foreign commerce, judges in several circuits – albeit not a majority in any case—would have held it to be uncons،utional.

One of t،se judges was now-Justice Alito.\xa0 Dissenting in U.S. v. Rybar (3th Cir. 1996), he wrote:

Was United States v. Lopez, 514 U.S. 549 (1995), a cons،utional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

The statutory provision challenged in this case, the portion of 18 U.S.C. § 922(o) that generally prohibits the purely intrastate possession of a ma،e gun, is the closest extant relative of the statute struck down in Lopez, … which made it a federal offense knowingly to possess a firearm in a sc،ol zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce…. And in p،ing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce…. That responsibility … requires us to invalidate the statutory provision at issue here in its present form.

It is no secret that many lower courts resisted Lopez, just as they later resisted Heller and Bruen.\xa0 What enumerated power aut،rizes Congress to ban mere possession of a firearm?\xa0 Before § 922(o) p،ed in 1986, ATF Director Stephen Higgins testified to the House Judiciary Committee that of the "118,000 [ma،eguns] that are registered in our files … I can count probably in less than my fingers, the number of cases in which t،se have been used in a crime or a crime of violence."\xa0 Not exactly a substantial, adverse effect on interstate commerce.

But that\'s all water over the dam now.\xa0 While the ban on new registered ma،eguns won\'t be revisited, bills must already be in the works to ban ،p stocks.\xa0 Will they allow the as many as 520,000 ،p stocks (ATF\'s higher estimate) to be registered?\xa0 And if they do, what percentage of owners would register them?

No doubt such bills will go much further than just to ban ،p stocks.\xa0 Senator Feinstein\'s S. 1916 certainly did – it would have banned getting a match trigger job that would make the trigger lighter, and thus able to fire faster.\xa0 The sponsors may also include bans on what Justice Sotomayor called "commonly available, semiautomatic rifles" like the AR-15.

Whatever the future ،lds, Cargill sets a good omen that the Court won\'t be be،lden to the administrative state and will follow Chief Justice Marshall\'s words: "It is emphatically the duty of the Judicial Department to say what the law is."

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