Supreme Court Strikes Down “Bump Stock Ban” 6-3
In a legal debate centering around the physical act of pulling the trigger on a firearm, the Supreme Court has struck down the so-called “bump stock ban” in a 6-3 decision.
A divided Supreme Court on Friday struck down a federal ban on bump stock devices that allow semiautomatic rifles to fire hundreds of bullets a minute, upending one of the few recent efforts by the federal government to address the nation’s epidemic of gun violence.
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The 6-3 ruling continues the conservative majority’s record of limiting gun restrictions, most notably in a landmark 2022 ruling that has made it easier to challenge modern gun control laws.In its ruling, the majority said bump stocks do not qualify as machine guns under a 1986 law that barred civilians from owning the weapons. The Trump administration interpreted the law to ban bump stocks in 2018, after a gunman used the devices to open fire on a Las Vegas music festival, ultimately killing 60 people in the deadliest mass shooting in U.S. history.
In writing for the majority, Justice Clarence Thomas dove deeply into the mechanics of how the devices operate to reach the decision. The 1986 law defines machine guns as a weapon that fires more than one shot “by a single function of the trigger.”
“With or without a bump stock, a shooter must release and reset the trigger between every shot,” Thomas wrote.
In a dissent read from the bench, Justice Sonia Sotomayor said the majority’s opinion would have “deadly consequences,” adding that the court “hamstrings the government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.” She also called the ruling “myopic” and eschewed a “straightforward understanding of the statute.”
A quick look over the opinions, this might be the most embarrassing reflexive liberal dissent I’ve seen.Report
Well if you discount the overwhelming support for things like this in the US, sure.Report
The law is the law.Report
How does this decision contribute to a well regulated militia?Report
Is there any formulation that would answer that question to your satisfaction and still allow the population to have handguns?Report
Twitter is older than the personal right to a handgun.
The so-called personal right was just invented in 2008 in the Heller decision, by a 1 vote majority.Report
Do I think there are any distinctions that would convince you? Seemingly coming at it from a position that the whole thing is just arbitrarily kind of made up? Of course there aren’t.Report
How is it not arbitrary and made up, every bit as much as the “living document” that conservatives love to lampoon?
Claiming to divine the “original intent” of a document written 150 years before the first automatic rifle was invented, and even then, the Heller decision was an overruling of nearly 200 years of precedent holding that no such right existed.
Look, if people want to use an argument they think justifies a personal right grounded in history or the current state of society or whatever, go right ahead.
Just don’t try to tell me that it is somehow found *right there* in the Constitution because it isn’t.Report
That’s more of a criticism of originalism. Which I grant has its stronger points and weaker points. Among the latter I think is the idea that we can always know what the drafters meant, or that there was even a unified position. The originalist retort of course is that we do have supplemental documents on the historical record with explanations and insights. I’m not hard into originalism but that stuff can be persuasive, at least some of the time.
I will say you’re wrong about Heller overruling 200 years of precedent. The reality is more that there really wasn’t much gun control prior to 1934 with the NFA, and not really as we know it until the GCA in 1968. The state laws were loose, hadn’t ever been challenged under modern jurisprudence, and often enough amounted to things like ‘black people can’t have them’. The parts of the law held unconstitutional in Heller was passed in 1975, not over a century ago.
I also think the idea that there’s this amendment that just doesn’t really mean anything standing at number 2 is a lot harder to defend. I think the same is true about the idea that Congress could back door amendment and/or supersede something in the Bill of Rights by something like creating the National Guard is inconsistent with the US Constitution being the supreme law of the land with a specifically described amendment process.
So I’m not going to tell you anything is right there. But I will argue that when debating it we should stick to the actual legal history and the facts.Report
There was in fact plenty of gun control all across America, dating back to the earliest days of the nation.
https://www.smithsonianmag.com/history/gun-control-old-west-180968013/
All through the 19th century towns and states passed all sorts of restrictions on the personal carry and use of firearms, and these laws were upheld by courts.
This is the 200 year historical tradition that Heller overturned.
The attempt to explain via 200 year old letters why semiautomatic rifles are protected and automatic rifles are not is going to require so much artful interpretation as to make the reading of chicken entrails seem like rigorous science by comparison.
A stronger argument would be an appeal to common sense, like, “What are you nuts? You can’t have people walking around with machine guns!”
But of course that would apply to bump stocks and plenty of other firearms too, so the gun nuts don’t like to use that logic.Report
It’s an interesting piece but doesn’t speak to what the law is or was for purposes of this discussion. Three issues.
1. The standard the Supreme Court adopted in Bruen requires gun laws to be analyzed based on the ‘historical tradition of firearm retulation.’ Part of the reason so many statutes are failing is precisely because no one challenging them can find any sort of historical ancillary.
2. The laws cited in the piece are about carrying, specifically where you can carry. There are still permissible restrictions on where a person can carry. This is also not getting into other things the article says about the sketchiness of the historical record or the fact that gun ownership itself was near ubiquitous on the frontier.
3. The 14th Amendment is deemed to apply the Bill of Rights to the states. The article you shared is about laws before the 14th Amendment was written.
On the bump stock thing I disagree with the outcome because I think Thomas and the majority really do a contortion around the definition in the statute. But that’s not a 2nd Amendment issue.Report
The “historical tradition” of firearms regulation was that it was considered perfectly reasonable to limit how and where and by whom firearms could be used.
The 2nd Amendment, like all the Constitution, applied to the states from the moment it was ratified.
So getting back to the question of automatic rifles; The Gatling gun was invented in the middle of the 19th century, and along with pistols and shotguns, was freely available for private use until the 1930s.
So the “historical tradition” logic suggests that it is protected by the Constitution.Report
The “historical tradition” of firearms regulation was that it was considered perfectly reasonable to limit how and where and by whom firearms could be used.
This was the position of the Redcoats, yes.
The Bill of Rights was written by people who had different opinions, though.Report
No, their opinions were absolutely NOT different.
Firearm use was regulated by states and municipalities from the early days of America while the Founders were still alive.
Would the Founders have allowed Congress to ban automatic rifles, had they known of their existence?
Its almost impossible to say. The “Historical Tradition” of firearms regulation is all over the place without a clear ruling from SCOTUS or Congress.
Which is my point, that rulings like Heller, whether they are right or wrong, are based on modern day understandings and intents.
All the appeals to tradition or a letter James Madison wrote to his wife is just retconning of history, the way theologians cherry pick Bible passages to support whatever they want to do at the moment.Report
Firearm use was regulated by states and municipalities from the early days of America while the Founders were still alive.
Could you give an example of one of these regulations that you say is representative of what you think gun laws should look like in the current year?
One of the state-level ones, I mean.Report
I guess now I am getting a bit lost. There still are permissible regulations on where a firearm can be carried and who can own them. For example it is very unlikely that SCOTUS would hold the prohibition on felons owning firearms, or a law saying you can’t carry a handgun into a bank, are unconstitutional. Those also seem consistent with the history you’re referencing. But just because some restrictions seem to meet the standard doesn’t mean any would, or even that they should.
And, in the other direction, not even the recent-ish SCOTUS decisions go nearly as far as you seem to think they do. The two big take aways have been: (i) a jurisdiction can’t regulate handgun ownership into something virtually impossible to do legally and (ii) if you’re going to have legal carry the criteria can’t include arbitrary judgment calls by the local police. I understand some people find this really radical but I’m not convinced it is.
Re: automatic weapons specifically there are a number of legal commenters that have wondered about how the NFA fits into more recent 2nd Amendment jurisprudence. Maybe one day we will find out. But in this case they just interpreted the statute and whether the ATF regulation was permitted under it. The law itself still stands.Report
I’m asking for a rationale on a and semiautomatic difference between automatic weapons that isn’t just an interpretation on what somebody thinks the Founders intendedReport
Maybe we could compare the 2nd Amendment to what they actually did *IN PRACTICE* when the colonies became The United States.
Could you give an example of one of these regulations that you say is representative of what you think gun laws should look like in the current year?
One of the state-level ones, I mean.Report
There are examples in the link I provided including flat prohibition on open or concealed carry.
But so far as I know, there were no prohibitions on the private ownership of cannons.
So how can we say the 2nd amendment doesn’t protect cannons, and RPGs?Report
So your examples of regulations from “states and municipalities from the early days of America while the Founders were still alive” is a Smithsonian link to a story about Tombstone in the 1880s?
That’s great, Chip. Thanks.Report
SCOTUS hasn’t told us so anything would be speculation. Keep in mind it isn’t illegal to own a machine gun in the United States (though not in every state). Allegedly there are a few million of them in private hands. So the question wouldn’t be whether banning them is permitted under the 2nd Amendment, it would be whether the NFA rules pass scrutiny. I have my thoughts on that but I am certainly not an authority.Report
So what weapons are NOT covered and why?
That’s what I’m driving at, that the line between protected and not will by necessity be somewhat arbitrary and involve contemporary mores and attitudes about balancing liberty and order.Report
As I understand it the original rationale behind the NFA was prohibiton era organized crime. In terms of where they drew the line you’d have to ask the people who wrote it, but I assume they did what they felt made sense for the policy objective, consistent with the politics of the time.
Some of what they included makes a kind of sense and from my read is probably consistent with Heller (weird stuff like guns that look like something else, explosive devices, grenades, etc.). Some made little sense then and makes little sense now (suppressors). Machine guns maybe could go either way. But as far as I know no one has challenged the NFA as violating the 2nd Amendment. The way our system works the law stands until someone successfully does.Report
Yes, exactly.
The drafters of the NFA used contemporary attitudes and mores and the SCOTUS of the time didn’t dither over “What if Washington had a Tommy gun at Valley Forge”.
So why can’t we do the same and ban bump stocks based on our concerns about spree shooters?Report
Sometimes Congress passes laws the courts later hold unconstitutional. That’s a feature not a bug.
Also I haven’t read the full decision but per the link Damon shared below it sounds like the Court said Congress could amend the law to cover them. Their interpretation was that the statute doesn’t cover them currently, not that it couldn’t.Report
The “well regulated militia” that is the National Guard trains with side arms routinely.
That aside I have no idea if there is such a formulation, as neither you nor anyone else has presented one here that I can interrogate.Report
Philip: The “well regulated militia” that is the National Guard trains with side arms routinely.
That’s one example. However the basic definitions are:
a military force that is raised from the civil population to supplement a regular army in an emergency.
(in the US) all able-bodied citizens eligible by law to be called on to provide military service supplementary to the regular armed forces.
The founders thought having civilians armed was a good and necessary thing so that they could be pressed into service in an emergency.
The national guard is a gov run group. They envisioned that all fit men would have to do their thing if it hit the fan.
Trying to spin the 2ndAM to “the gov has the right to make and arm an army” is nonsense, there are other parts of the Constitution that do that nor would that be an individual right.Report
The decision didn’t involve the Second Amendment.Report
Firearms decisions from SCOTUS always involve the Second Amendment.Report
The technical parsing of whether a bump stock qualifies as a “machine gun” illustrates the arbitrary absurdity of the idea that bump stocks are protected by the Constitution, while “machine guns” are not.
“Originalism” can’t apply here since neither was even conceived at the time. The line between a fully automatic rifle and a semi-automatic is an entirely new and arbitrary distinction.Report
I don’t agree with the outcome here but you’re wrong that automatic weapons are new and you’re really, really wrong that the distinction is arbitrary.Report
Show me in the Constitution where it draws any distinction between automatic and semiautomatic.Report
So you’re arguing that the Second Amendment prohibits any gun regulations? Cool!Report
How many of us here could recognize a bump stock if we saw one sitting in a drawer?Report
I’m pretty sure we’ve shared video here of how bump stocks work. So, I for one, yes, would recognize a gun with a “bump stock” on it.Report
And a direct question to you, sir:
If someone uses a gun with a bump stock fires 20 shots as fast as possible, how many times did they pull the trigger?
Can you answer that question?
It goes directly to the majority’s decision.Report
I’ll go to the New York Times:
According to that, it looks like it doesn’t materially change how many times the trigger needs to get pulled.
It just allows the shooter to pull the trigger a lot more times in a row.
They even have an animation at the link showing how they work.Report
Here’s a video on the difference between semi auto, bump stock,, and full auto.
https://www.youtube.com/watch?v=Dd9y8hHMUag&ab_channel=KRGV
Summary:
AR 15 Semi auto 30 round mag: 6 Seconds to empty the mag.
Same weapon with bump stock: 4 Seconds to empty the mag.
Full Auto AR 2 Seconds to empty the mag.
“The bump stock allows a weapon to fire at nearly the rate of a machine gun without technically converting it to a fully automatic firearm” That’s a bit of an exaggeration.Report
Based purely on muscle motions, I’d speculate that they pulled the trigger once. Then they held the finger as still and rigid as they could while the trigger banged into it 19 times.
ETA: This is why gun safety courses teach you not to put your finger inside the trigger guard until you are ready to shoot. Because if you just leave the finger there, sometimes the trigger bangs into it and the weapon fires.Report
A single pull, and 19 collisions. Twenty trigger motions.Report
I don’t know what media people are relying on for good info on this decision, but it seems a lot of folks need to look for additional sources.Report
One finger motion to achieve that string of shots. The weapon, with its add-on, does the rest of the work. Gee, the wording gets weird. Personally, I’m more concerned with the easy rain of bullets than defining which, finger or trigger, is doing the work.Report
Part of the problem is stuff like “legal definition”.
I mean, is an 80% lower a “firearm”? Here, let me find you a picture…
That top picture? That is *NOT* a firearm, according to the law.
That bottom picture? that *IS* a firearm, according to the law.
(Years ago, I worked on an awesome team and we all worked well together and argued about everything and I was the leftmost guy on the team by a dang sight. One of our inside jokes went something like this. “Dude?” “Yeah?” “I’ve been thinking about drilling that third hole.” And then we’d all start yelling about how that was an awful idea or, sometimes, about how come it took me so long. Ah… good times.)Report
You make it sound as if the difference between semiautomatic and fully automatic, between “Protected by the Constitution” and “Not protected by the Constitution” is somewhat arbitrary.Report
Sounds? I showed a picture!
Chip, do you think that the law should be able to regulate the top picture? Like, should you be able to send me $100 and then I be able to send you the piece of metal in the top picture without having to tell the government?
Because, let me reiterate:
The top picture is not a firearm.
The bottom picture is a firearm.
And I’m not talking “morally” or “spiritually” or any of that crap.
I’m talking about the definition of the law.Report
I know, and I agree with your point.
I keep asking people which of those two items was intended to be protected by the 2nd Amendment, and why.
Maybe there is a letter from James Madison where he explains it.Report
Honest question: before today, would you have recognized the second as being a gun?Report
Nope.Report
For the record, this is part of the problem.
Because the guys that you probably most want to not have AR-15s are the ones who can turn the top picture into the bottom picture.
Additionally, the lower doesn’t experience a whole lot of impact when the trigger is pulled and the bullet is fired.
Which means that you don’t necessarily need metal to make one. All you need is a consumer-quality 3D printer.Report
The NFA also banned sawed off shotguns, which anyone can make in their garage.
The point that people here are trying to evade is that there isn’t any obvious bright line in the Constitution between a long barreled shotgun and a sawed off, or between the top picture and bottom picture.
What types of firearms can be regulated, restricted, or even banned under the Constitution is a matter of contemporary desires for balancing public safety against personal liberty.
If Congress wanted to amend the NFA to include bans on bump stocks or bans on open or concealed carry of firearms with certain features on the grounds of safeguarding the public, I can’t see anything in the 2nd Amendment which would prohibit that.
Do you?Report
Hey, wasn’t the sawed-off shotgun thing remanded back to the lower court?
This might be an important question!
If Congress wanted to amend the NFA to include bans on bump stocks or bans on open or concealed carry of firearms with certain features on the grounds of safeguarding the public, I can’t see anything in the 2nd Amendment which would prohibit that.
That would be an interesting thing to see happen. I wonder if the Supreme Court would agree that it’s constitutional.
That said, it seems to have been demonstrated that Not Even Trump can get this done via Executive Action.
Getting it through congress might be the only way to do it.Report
Do you think it would be constitutional?Report
I don’t know. For example, you haven’t answered the question about the sawed-off shotgun thing.
Hey, what did the lower court find after it was remanded back to them?
This might be an important question!Report
I don’t know what happened with the shotgun ban, but I think the fact that you, and most of the people here don’t really know if bans on bump stocks would be constitutional validates my point that the meaning of the Second Amendment isn’t clear, and its interpretation has always been reflective of contemporary attitudes towards guns, as opposed to some fixed original meaning.Report
If you’ve never read about the original case, you should. It’s a hoot.
(Huh, and I was wrong about it being remanded back down… I honestly thought that it was remanded asking the court to deal with the question of whether shorter shotguns were actual “militia” weapons (WWI would seem to indicate that, technically, they could be). As it turns out, the irregularities were much more hollywoodesque than that.)Report
Right, this was in the pre-Heller days when the Second was all about “well regulated militias”.
This was the traditional understanding that only recently was overturned because reasons.Report
“[D]o you think that the law should be able to regulate the top picture?”
If the top picture were what a ‘gun’ looked like at the time they’d written the law, it would absolutely have been regulated in the law.Report
Top, bottom, whatever.Report
The difference between the top and the bottom is *HUGE* though.
That’s where the line is drawn.
(Google “milling an 80% lower” and watch some youtubes!)Report
no, my point was that I’d meant to write “bottom picture” but wasn’t careful about my post and by the time I noticed my mistake the edit window had closed.
Just so we’re clear, the post should have read:
If the bottom picture were what a ‘gun’ looked like at the time they’d written the law, it would absolutely have been regulated in the law.Report
The courts shouldn’t care about the rain of bullets if the law refers to trigger functions. If a court can decide how many bullets are too many, it’s no longer bound to any law.Report
“Can a court decide how many bullets are too many” has been settled since 1934, bro. At this point you people are the equivalent of guys claiming that if you write your name on the tax return last-name-first and in all capital letters then that counts as paying your taxes.Report
I’m not sure that I’d recognize one sitting in a drawer, though. I might recognize the “stock” part, but not the “bump”.
Off the top of your head, looking at two guns, one with a bump stock, one with a stock stock, what’s the difference that you can describe in text?Report
jaybird if you want to argue in favor of maximal freedom then maybe don’t argue “there’s almost no visible difference between a standard rifle and one that’s been modified to be capable of automatic fire”
because a regulator’s response to that is “okay, it’s all banned then”Report
Pretty much. You’ve got a narrow question of whether this does or doesn’t cross the line under the NFA. Then you’ve got a larger question of association of gun rights with what a lot of uncommitted people will understandably see as yahoo bullsh*t.Report
But “it’s all banned” will work about as well as banning paraphernalia.
Even at the height of the War on Drugs, you could buy a bong.
I don’t know whether it’s possible to ban stuff like this.
You can ban a gun… can you ban screws? Stocks? “Fake Suppressors”? Lawn mower mufflers?Report
Ban the belt loop!Report
If you’re walking around in public with a banned gun part the police can declare you a Dangerous Criminal and shoot you with their machine guns.
If you’re walking around in public with an Entirely Legal Gun Part the police can’t do anything until you take firing position and click off the safety.Report
Eh. I think that the “as has been demonstrated” has demonstrated that who and whom has a thumb on the scale there.Report
I think that misses the crux of the public policy question. No law is perfect nor is it perfectly enforceable. The questions are around workability, sufficient popular legitimacy, and, in the case of guns, whether they’re infringing on anyone’s rights. The NFA definitely has issues. It draws the lines in some arbitrary places. Not only does it not envision modern technology like 3d printing, it doesn’t always even account well for the existence of big box hardware stores with cheap, readily available raw materials and tools.
All that said, it seems to do a decent enough job at drawing the lines between weapons that have little purpose at all beyond committing crimes, those that exceed the level of destructive capacity your average citizen can be expected to handle safely without serious formal training, and those that do not have those issues. That and for some reason it takes a really hard line against suppressors.
The question you have to ask is what happens if you start picking it apart. Are you sure you’re going to end up with better policy in the long run? I for one am not.Report
You want to make this an add-on law? It could work.
“The accused is charged with 2nd Degree Murder, Assault with a Deadly Weapon, and Owning a Belt Loop.”Report
Heh we can leave that sort of stupidity to places like the UK.
The point is we don’t need to worry about things like that if the law is drawing the line in a place where most people are readily willing to comply with it, most of the time, even where it’s a little arbitrary. But if we’re going to take this discussion to a place where we say nothing is enforceable because of how easy it is to fabricate a firearm with stuff you can buy at Home Depot? Well yeah, soon there will be people wanting to ban a lot more than just belt loops. Which is why it’s better to defend a regulatory structure that allows law abiding people to just buy an already built and fully assembled gun at the store, even if some of the rules around it are a little arbitrary.Report
Stolen from here:
https://gunfreezone.net/
Cargill v. Garland, what does it mean?
This is “the bump stock” ban case. It has been kicking around for a while.
In October 2017, there was a mass casuality event in Las Vagas, Nevada. 58 people were killed and over 500 were wounded.
When the police breached the room they believed the shots were coming from, they found a corpse, IIRC. I don’t believe the cops shot him.
They found a number of weapons, some of which were AR15 style semi-automatic rifles. They found magazines and at least one of the rifles was equiped with a bump stock.
President Trump, looking at the make up and the will of the congress told the ATF to ban bump stocks.
One version says that Trump is a traitor to the Second Amendment for doing this. Another says that Trump was playing 5D chess and kept congress from acting.
The ATF promligated a new regulation where they redefined “machinegun” to include semi-automatic firearms equiped with bump stocks as machineguns, and demanded that all owners of bump stocks turn them in within 90 days or face charges.
Mr. Cargill turned over 2 bump stocks to the ATF, under protest, then filed suit challenging the final rule as being in violation of the Administrative Procedure Act.
This is NOT a Second Amendment challenge. This is an Administrative Act challenge. It is a claim that the ATF did not have the authority to exerciese its power the way that they did. The ATF can not change laws nor can they make laws.
The district court found for the ATF. A merits panel of the Fifth Circuit court afrimed. The case was then heard en banc where the Fifth Circuit reversed the merits panel. Note that this was a weak finding.
The Fifth Circuit en banc found that under the rule of lenity, the plaintiff, the good guy, wins.
The rule of lenity is that when the law is ambiguous, The People win.
This means that the case was appealed to the Supreme Court which granted cert and issued their opinion today.
So what did the Supreme Court actually say?
Justice Thomas delivered the opinion of the court. He answered the question put to them. Did the ATF exceed its statutory authority? The Supreme Court said they had.
With this, the ATFs rule is gone. Does this mean that we can now own bump stocks? The answer is a strong “maybe”.
If your state has banned bump stocks, those laws are still good. This opinion only affects the ATF’s Rule. It was found that the ATF did not have the authority to redifine the meaning of “machinegun.”
Even if your state’s government waved the magic pen and banned bump stocks, those bans have to be fought in court. This case is not even good case law for a state level executive ban.
This case is even weaker as case law IF your state’s legislature passed bills that were signed into law banning bump stocks.
On the good news side, Justice Thomas does a great job of describing the trigger group of an AR-15. This makes it absolutely clear that an AR-15 is a semi-automatic firearm. This can be used to slap down the Woods and Easterbrooks of the country that find that AR-15’s aren’t even arms protected by the Second Amendment.
This is why I like originalist Justices. Justice Alito concurered. He wrote that he was agreeing with the majority because that is what the law said. He then goes on to say that if the Congress that defined what a machinegun was knew about devices like bump stocks, they would have considered a bump stock to be a machinegun.
But he says very clearly:
There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.
—Opinion, Garland v. Cargill, No. 22-976 (U.S. Jun. 14, 2024) Justice Alito, concurring.
But the biggest take away comes not from the majority opinion, but from the minority dissent.
On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.
—id. Justice Sotomayer, dissenting
The dissent gives us “in common use” for semiautomatic rifles and implicitly says that AR-15s are not M-16sReport
This actually is entirely in keeping with Alito’s reasoning in other cases, which is that if Congress considers something worthy of action then it should take that action instead of just assuming that the Executive Branch bureaucracy will handle it.
On the other hand, I think there’s a stronger argument to be made that bump stocks exist solely due to a squint-and-look-sideways interpretation of “single function of the trigger”, and are very clearly specifically made to get around the NFA (because there’s no reason to have something like that in a non-NFA context), and the Court has also been entirely willing to rule that If It Looks Like Trying To Get Around Laws Then It’s Illegal (ABC, Inc. v. Aereo, Inc.)Report
Apparently Alito has failed to notice that one of two political parties in Congress refuses to act on things that he and his colleagues punt back to them because they have decided that “action” results in “wins” for the Hated Other.Report
You really don’t want a court that bases its decisions on political analysis.Report
We already have that court.Report
I’m being serious. You really don’t want that.Report
Not that I’m going to convince anyone here but your second paragraph is essentially why I don’t agree with this holding. There’s a plain reading issue and I don’t buy the idea that ‘a single function of the trigger’ somehow precludes a device that channels the momentum of the first pull into an effect that comes close to mimicking fully automatic fire. I also think there’s a pretty decent argument that a bump stock is a part designed and intended for converting a weapon into a machine gun which also is within scope of the statute. None of that has anything to do with the 2A.
But of course at risk of my firearm enthusiast street cred this entire conversation just shows why toys like bump stocks are a bad idea. They lead to weird legal outcomes and drive exactly the kind of anti gun hysteria that those of us who value the 2nd Amendment do not need.Report
A lot comes down to whether the goal is to find a way to justify a desired result or to apply a set of interpretive best practices regardless of the specific topic. Reading this summary, it sounds like the majority simply did the latter.
Report
Also, the ATF’s position for 10 years prior to the change was that bump stocks were legal under the same statute — they changed in reaction to the Las Vegas shooting and pressure from Trump. This was essentially a change in law without benefit of Congressional action.Report
I understand the statute and still don’t find that persuasive. In fact I think the majority is doing exactly what you say they aren’t. The bump stock is using recoil to create something near indistinguishable in the function of the trigger. I can grant that there’s some ambiguity but in that case the standard is whether the ATF’s interpretation was reasonable, which IMO it was.
The fact that they used to interpret it a different way also isn’t persuasive. Administrative agencies change interpretations from time to time and if the change had been in the other direction people citing it would just be saying that they had it wrong before so of course a correction doesn’t mean anything.Report
and, y’know. Maybe bump stocks were legal because the ATF believed all those bros who said they were just buying them as a “curiosity” and would never ever use one to commit mass murder.Report
Add’l info/commentary on topic. Same site.
Isn’t Form 4473 Unconstitutional?
Jun 16, 2024 Awa 0 Comments
In —Opinion, Garland v. Cargill, No. 22-976 (U.S. Jun. 14, 2024), the Supreme Court found that the BATFE had exceeded their authority in changing the definition of “machinegun”. The ATF argued that they were just interpreting the law that congress had passed.
This is in keeping with our governmental forms. The three branches of the government are the legislative, executive, and judicial. The legislative branch creates laws, which must be approved by the head of the executive branch. Or the congress must override the president’s veto. The executive branch then implements those laws. The judicial branch defines what the laws actually mean.
In addition, the judicial branch is tasked with evaluating laws that are in conflict to determine which law overrides the other.
So, if the ATF can just make up laws, where did the 4473 come from?
It came from a Democrat, of course. Instead of yelling about “mass shootings” and “school shootings” the cry in the 60s was about assassinations. That is to say, three assassinations. JFK, RFK, and MLK. Because three assholes killed three men, we had our ability to acquire firearms infringed.
In 1968, the Gun Control Act of 1968 was passed. This codified the first full on gun control in the country. The NFA attempted to establish full gun control with full registration and prohibitive taxes on all firearms, but it only did it to machineguns, short barreled shotguns, short barreled rifles, and suppressors.
The reason given was that this would force all the bad guys to buy guns in person.
The 4473 was part of the executive’s implementation of the GCA of 1968. Every question on the 4473 is supported by code, not regulation. If you read §922(g) you will see that it is translated directly into questions in from 4473.
From 1968 through 1993, the process was a buyer went to the FFL, decided what firearm they wanted to buy. Filled out the 4473 and walked out with the firearm.
There was no waiting.
If a bad guy wanted to buy a gun, he could walk in, fill out the 4473 and just lie. This meant that when he decided to use his gun in an illegal way, or was picked up as a felon in possession, they could add on lying to an FFL, lying on the 4473.
This would stop the bad guy from doing bad things.
Since evil people are going to do evil, and criminals will do criminal acts, this didn’t actually work like the gun-control infringers said it would. It didn’t stop anybody. To get a feel of just how bad this is:
On a personal note, the form fails to keep certain persons from obtaining firearms. This failure is seen in Question 11.f.
—Linda Gilbertson, The History of ATF Form 4473: Transaction Record Explained, Blog.GritrSports.com (Jul. 27, 2017)
This was a former ATF agent. He truly believes that a piece of paper stops people. This is the same sort of person that gets women killed by denying them firearms but giving them a restraining order.
One of Hagar’s friends was murdered by her estranged husband. She had a restraining order against him. This didn’t stop him from killing his wife and children. Nor did taking some of his guns from him. He had decided to commit murder. Why would violating a restraining order slow his rampage down?
I’m sure that when she held up the restraining order, it stopped the bullets he fired at her.
In the 90s, the infringers started screaming that the 4473 wasn’t stopping criminals. They demanded that background checks be done before a person took possession of their firearm.
The original goal was to add waiting periods while the background check was being done. There are states that have excessive waiting periods. I was upset when purchasing some rifles and all pistols required me to wait 21 days. Oh, even though that sounds like three weeks, it is really 4 weeks and 1 day. Because those are business days. This was when I was back in Maryland.
The NRA was the group that got NICs as part of the deal. When some moron tells you that the NRA supported background checks, they didn’t. What they did was fight for a compromise of an instant background check, with the default being you get the firearm.
Some “compromises” they defeated were options where the state had 30 days to reply, but there was no penalty if they took longer. Just ask J. Kb. how the state is perfectly willing to use their incompetence as an excuse to deny you, your Second Amendment protected rights.
So, is form 4473 “Constitutional”?
The answer is yes. This is because the form is a proper implementation of the GCA of 1968.
Is the GCA of 1968, as amended, Constitutional?
Bruen did not answer that question. Bruen told the inferior courts how to properly apply the Heller methodology.
If the individual’s (proposed) conduct implicates the plain text of the Second Amendment, the state has the burden to show representative regulations from this Nation’s historical tradition of firearms regulation.
If we have a hypothetical case, where a person was stopped for a routine traffic stop, and during that stop admitted to smoking a little weed and the cops find he is in possession of a firearm. According to §922(g)(3), he is a prohibited person. He is going to jail. See the Range case.
Did his conduct implicate the plain text of the Second Amendment? Yes. Gun, bear, possess, Second Amendment implicated.
If the Second Amendment is implicated, the state has the burden to prove this Nation’s historical traditions of firearm regulation (in the 1790s) would have prohibited a person who smoked weed (or drank) from keeping or bearing arms.
Since the state cannot do so, §922(g)(3) is Unconstitutional.
Which takes us to lying to an FFL.
for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
—Gun Control Act of 1968, 18 USC § 921 (U.S. 1968)
If §922(g)(3) is unconstitutional, then lying about being a drug user is not a material fact. Thus, no violation of §922(a)(6).
Which only leaves §924(a)(1)(a). This gives a penalty for making a false statement or representation. This is where I yell IANAL!!!!
My reading says that this could stand.
Regardless, the 4473 is still here. It is being challenged because §922(g) is being challenged.
Final note:
Q7: Has ATF issued a new Form 4473, Firearms Transaction Record?
Under the Paperwork Reduction Act, federal agencies are required to seek public comment and assess the burden associated with any changes to federal forms, through a process managed by the Office of Management and Budget. Consistent with that process, ATF has not been required to issue nor has it issued any changes to the Form 4473, since April of 2012. When the form was last changed (2012), ATF published the changes in the Federal Register and provided a 60 day comment period for the public to comment on the form, as required under the Paperwork Reduction Act. ATF received no public comments.
—ATF Form 4473 FAQs | Bureau of Alcohol, Tobacco, Firearms and Explosives, (last visited Jun. 16, 2024)
See, the ATF is not changing the form very frequently, OOPS!
ATF Form 4473 (5300.9)
Revised August 2023
— ATF Form 4473 (5300.9) Rev. Aug 2023
It seems like the ATF lies even when they have nothing to lie about.Report