Mass shootings in America, continuing now nearly every day, most often involve a gunman with a grisly intent to kill as many people as rapidly as possible. Congress is aware of that, but it has not yet found a way around the gun control lobby’s fervent protection of rapid-firing, high-volume weaponry. On Wednesday, though, the Supreme Court will explore whether another part of government – the Executive Branch – can act by issuing a binding regulation with heavy penalties.
The hearing tomorrow comes as the Court’s conservative majority has demonstrated that there are few controls on guns that can survive those Justices’ sweeping interpretation of the “right to keep and bear arms” under the Constitution’s Second Amendment. (Since its 2008 ruling in District of Columbia v. Heller, the Court has had a clear majority in favor of that right, defining it as a personal right to have a gun, for protection at home or out in public. Before 2008, the Amendment was most commonly understood as a guarantee of arms for the militia – like the modern National Guard.)
The outcome in Wednesday’s case could be different, because it does not directly involve that Amendment. (However, gun rights groups that regularly pursue Second Amendment challenges did file a legal brief in this case. They told the Court that, if the government wins and if that expands federal power to ban weapons, a threat to Second Amendment rights will surely follow, implying that there will then be new constitutional challenges.)
The Wednesday hearing: Garland, U.S. Attorney General, v. Cargill The hearing begins at 10 a.m. and is scheduled for one hour.
Background: At issue is the government’s attempt to expand a federal law, on the books for 38 years (before the modern era of mass shootings), to ban a weapon that allows continuous firing without repeated pulling of the trigger and without reloading. The law bans ownership of any “machine gun.” Since 2018, the government has interpreted that ban to cover a modification of a rifle to cause it to fire repeatedly – a device called a “bump stock” or one that allows “bump firing.”
The rule, issued in 2018, was adopted by federal firearms enforcement officials in response to the nation’s worst mass shooting incident, in October 2017.
Weapons of the kind banned by the rule were used by a single gunman from a high hotel window in Las Vegas, firing down on a large crowd at a music festival. In less than 10 minutes, he killed 58 people and wounded more than 500 others. (More than 200 others were injured in the melee that happened on the ground during the shooting.)
When police found the shooter later in the hotel room, dead from suicide, they saw near him several rifles outfitted to make them high-volume weapons. His guns had been fired at a rate of 100 times in 10 seconds without stopping to reload. (In many mass shootings, where the gunman used a gun without a high-volume capacity, police who arrive have been able to kill the shooter who had to stop to reload.)
Some of the weapons used in Las Vegas were fitted with “bump stocks.” That is a device invented more than a quarter-century ago by William Atkins, a Marine Corps veteran in Florida; he has had a patent on it since 2000, but has had competition and has not made a great deal of money on the device
Ordinary rifles have a fixed stock, and are fired one bullet at a time by one finger pull of the trigger. A rifle with a bump stock has a plastic sleeve-like device that is pushed back from each firing by the rifle’s recoil. The gunman’s finger does not pull the trigger repeatedly, but the government contends that the recoil action that starts with the first shot keeps the firing in continuous sequence by a sort of “bump” of the finger, as it rests in a stationary position.
To decide the case, the Justices may have to make up their own minds on exactly how a bump stock works. That’s because the two sides in the case dispute the way the sleeve creates the repeated firing of bullets, and how each claimed version fits with the wording of the “machine gun” law.
The law at issue imposes a ban on “machine guns” that shoot “automatically more than one shot.” The government interprets the wording to mean that “one pull of the trigger” results in repeated firing. Opponents of the government rule disagree; oting that the law uses the phrase “single function of the trigger,” not “single pull,” they insist that the finger is stationary beside the trigger, with the recoil action as the critical function in repeated firing. Lower courts had before them a video of experts showing how bump stocks function; presumably, the Justices can view those images.
Before the Trump Administration adopted the new ban on bump stocks in December 2018, the government treated bump stocks as an unregulated accessory to a firearm. Thus, they were bought and sold across the nation. When the new rule went into effect, Americans owned 520,000 of the devices, which they had bought for a total of $102.5 million, paying between $179.95 and $495.95 each.
The new rule required owners of such devices either to turn them in to an office of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, or destroy them. Various individuals and gun rights groups challenged the rule in lawsuits, resulting in differing court decisions. One group attempted to get the Supreme Court to block the new rule before it went into effect, but the Justices rejected that effort, without explanation, in March 2019.
Facts of this case: This case has been making its way through the federal courts for five years. A Texan, Michael Cargill, owned two of the cases. When the new rule came out, he turned them in “under protest,” and then sued federal officials in a federal court in Texas.
The lawsuit contended that the government misinterpreted the law against possessing machine guns, that it had bowed to political pressure, and that it had no authority to issue the rule because that could only be done by passage of a ban by Congress. (Bills have been introduced in Congress to impose such a ban on bump stocks, but have not been enacted.)
A federal trial judge rejected Cargill’s challenge, as did a three-judge panel of a federal appeals court. However, the full bench of that appeals court, in a widely splintered ruling, barred the rule. The only point on which a majority agreed was that the rule had to be interpreted in the most lenient way, because of the severity of the penalties attached (up to ten years in prison and a fine up to $250,000). That leniency approach nullified the rule.
The Biden Administration’s Justice Department appealed to the Supreme Court, to sort out the conflict among lower courts and to revive the ban.
The questions before the Court: Was it wrong for the federal government to ban bump stocks on guns on the theory that they become machine guns? May only Congress impose such a ban by passing a new law?
Significance: America’s intense, emotional and consequential debate on guns and gun violence divides the nation as few other controversies do. No other nation, anywhere in the world, loses as many of its people to gun violence, and none can come close to matching the number of mass shootings that are now common in this country.
Various organizations track mass shootings across the nation. While their definitions differ, it is fairly common to count as a mass shooting a single incident that results in at least four victims (other than the shooter), either killed or wounded by gunfire. Using that measure, 754 people were killed and 2,443 were wounded in 604 incidents in the year 2023. The pace has not slackened in 2024. (There is no reliable measure of how many of those involved the use of rifles fitted with bump stocks.)
At the center of the debate in the United States is which specific controls should, or should not, be adopted. One focus of gun reform groups is on the need to ban, or at least limit access to, high-volume weapons capable of mass killing and wounding. But that type of gun is among the most popular among gun rights advocates.
Because the Constitution has the Second Amendment, but more because of the way the Supreme Court has interpreted rights protected by that Amendment, it has become very difficult to regulate guns in any significant way. No one can be sure, but the consequence of that situation may have been to increase generally the availability of even the most lethal weapons.
This case, as indicated, is not directly about the Second Amendment; the focus is on what Congress meant when it chose to ban “machine guns.” Still, the sweep given to the right to “keep and bear arms” over the past 16 years is a background constitutional reality, one that is difficult to ignore entirely. Perhaps the least that can be said fairly about this is that the burden of proof in any gun rights case seems to rest quite heavily upon those who want to narrow access.
It is perhaps a good thing that the ban at issue is not being tested under the Second Amendment. Some 17 states and Washington, D.C., have passed their own laws banning rifles with bump stocks. Those could be challenged under the Second Amendment, because the Supreme Court, since 2010, has required state and local governments to obey the Court’s broad interpretation of gun rights.
There is another factor that lies in the background of this case. Some of the lower courts that have upheld the ban on bump stocks gave as one of their reasons that the machine gun law was ambiguous on its meaning, so a court should defer to the view of federal officials. Moreover, in explaining the ban, federal officials themselves relied in part upon that rationale.
That approach was based upon the Court’s 1984 decision in Chevron v. Natural Resources Defense Council, which mandated that lower courts defer to agency views of an ambiguous law’s meaning. The Justice Department is no longer relying upon that reasoning in defending the bump stocks ban, and does not even mention the so-called “Chevron deference” doctrine in its main legal brief in this case.
Michael Cargill’s main brief mentions it, but does not defend his challenge against that doctrine, because his lawyers argue that the concept should not apply when it is a criminal law that is involved.
The Supreme Court, though, is now deliberating on whether to overrule the Chevron decision. That doctrine did not fare well when the Justices heard that question in January.
The Court will broadcast “live” the audio (no video) of these hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
