In a major setback for federal government efforts to stop mass shootings, a divided Supreme Court on Friday overturned a five-year-old ban on a gun device that enables the firing of hundreds of bullets in just minutes – the kind used in the nation’s deadliest incident of firearm violence.
By a vote of 6-to-3, a division along ideological lines, the Court ruled that the federal firearm regulating agency had no authority to treat that device as a machine gun under a 90-year-old law. The device is called a “bump stock” – a device that, in a rather complex sequence of motions, enables a gun that otherwise would fire only one bullet at a time to continue firing rapidly.
The device uses a plastic sleeve that envelopes a rifle that ordinarily would fire only once with each pull of the trigger, with the sleeve turning the recoil of the rifle with each shot into a movement that pushes the trigger against the shooter’s finger, causing firing at a rate of about 100 bullets within 10 seconds.
The federal Bureau of Firearms imposed the ban in 2018, responding to a nationwide uproar over the use of such weapons in the October 1, 2017, incident when a single gunman using “bump stock” rifles opened fire on a crowd at a music festival in Las Vegas, killing 58 people and wounding some 500 others, and causing injuries to another 200 in the crowd’s scramble to leave the scene.
After that incident, Congress considered amending a 1934 law that outlawed machine guns, with the aim of treating “bump stock” rifles as also banned. The 1934 law made it a crime to possess a machine gun, and provides stiff penalties.
None of the congressional bills passed, but the Firearms Bureau soon changed its long-held view that “bump stocks” were not machine guns, and decided to take them out of the public’s hands. Anyone who had such a weapon was ordered to destroy them or turn them in to avoid prosecution. When the ban went into effect, Americans owned 520,000 of the devices, bought at prices ranging from $179.95 to $495.95.
The Court’s ruling was based entirely on the majority’s interpretation of the wording of the law banning machines guns, and thus did not rely upon the expansive individual right to have guns that the Court has established under the Constitution’s Second Amendment. The new decision came just short of the second-year anniversary of a decision supported by the same six-Justice conservative majority broadening even further that constitutional right. Justice Clarence Thomas, the author of that prior ruling, wrote the majority opinion in Friday’s decision.
As the majority read the old law’s ban, interpreting it in a very narrow way, a machine gun is only one that fires repeatedly with one pull of the trigger. Congress, the opinion said, did not define a machine gun by its rate of firing but only by the repeated firing with only one pull of the trigger. The majority said that, with a bump stock, there is repeated “bumping” of the device on the trigger finger that results in the trigger actually being engaged repeatedly – but once for each shot.
Because Friday’s decision was based only on the meaning of the text of the 1934 ban, and not on the Second Amendment, Congress could act on its own to impose a ban on “bump stocks.” However, the close partisan division currently in both houses of Congress makes a flat ban on such a popular gun unlikely. Broad gun control bills regularly fail in modern sessions of Congress.
Gun rights advocates have indicated that, if the Court did not overturn the 2018 ban in this case, they would file court challenges to try to get it struck down as a violation of the Second Amendment right to have a gun for personal use. That threat might well reduce further the likelihood of congressional action.
Justice Thomas’ opinion was supported in full by Chief Justice John G. Roberts and Justices Samuel A. Alito, Amy Coney Barrett, Neil M. Gorsuch and Brent M. Kavanaugh. Justice Alito also wrote a brief separate opinion, for himself only, arguing that Congress might have acted after the Las Vegas shooting to ban “bump stocks” if the Firearms Bureau had not gone ahead on its own to do so.
Justice Sonia Sotomayor wrote the dissenting opinion, joined by fellow progressive Justices Elena Kagan and Ketanji Brown Jackson. (Jackson is the newest member of the Court, and was not there two years ago when the latest broad interpretation of gun rights under the Second Amendment was made. She replaced one of the dissenters then, Justice Stephen G. Breyer.)
The dissenters’ chastised the majority for having “put bump stocks back in civilian stocks,” and said that it had done so in a ruling that “casts aside Congress’s definition of ‘machine gun’ and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose.”
The Sotomayor opinion traced the history of the 1934 law, interpreting it to mean that Congress saw no reason why “anyone except a law officer should have a machine gun.” The ban, the dissenters wrote, was aimed at “gangsters.”
The Court’s new decision came in the case of Attorney General Merrick Garland v. Michael Cargill. Cargill is a Texas who surrendered two “bump stock” rifles when the Firearms Bureau’s ban went into effect. He then sued to challenge that ban.
Between now and the end of the Court’s current term, it is expected to decide another major gun rights case, testing the constitutionality of a 1994 federal law that forbids gun ownership or possession by anyone who has been put under a court restraining order for engaging in domestic violence. The decision will be based on the meaning of the Second Amendment.
The Court is in the process of releasing decisions in cases that were argued during the current term; it may finish by the end of this month or early in July.
