Missing the Target on Bump Stocks

The National Firearms Act of 1934 (“NFA”) defines a machine gun as “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.” (emphasis mine)

A bump stock is a device that uses the recoil of a firearm to cause a finger to re-depress the trigger of a semiautomatic firearm (meaning a firearm that requires a separate trigger pull for each shot) resulting in rapid trigger pulls and near-machine-gun rates of fire. But a bump stock is obviously not a weapon, does not have a trigger, and cannot rationally be defined as a machine gun or otherwise regulated under the current language of the NFA.

Nevertheless, in 2018 after the prior year’s horrific mass murder in Las Vegas when a madman (whose motives were never determined) who used a bump stock to fire into a music festival crowd, killing 58 (some say 60) and wounding hundreds, the Trump administration’s Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) changed years of regulatory interpretation to promulgate a rule that banned bump stocks as “devices (that) convert an otherwise semiautomatic firearm into a machinegun.”

An early version of a bump stock was called the Atkins Accelerator which was submitted to the ATF in 2002. That device included a spring that “caused the firearm to cycle back and forth impacting the trigger finger, which remained rearward in a constant pull without further input by the shooter while the firearm discharged multiple shots. The device was advertised as able to fire approximately 650 rounds per minute.”

While ATF initially ruled that this did not quality as a machine gun, four years later they changed their view but also

determined that removal and disposal of the internal spring would render the device a non-machine gun under the statutory definition. Hence, ATF advised individuals who had purchased the Akins Accelerator that they had the option of removing and disposing of the internal spring, thereby placing the device outside the classification of machine gun and allowing the purchaser/possessor to retain the device in lieu of destroying or surrendering the device.

Since then, bump stocks without springs have been legally available.

In 2017, in the justifiably emotional aftermath of the deadliest mass shooting in American history, the federal government began looking at their authority to ban bump stocks. At the time, the Department of Justice determined that they had no such authority. Even anti-gun former Senator Dianne Feinstein (D-CA) noted, regarding ATF, “that current law does not allow the agency to ban or regulate bump-fire stocks.” (READ MORE from Ross Kaminsky: Universities and the ‘Common Good’)

However, DOJ and ATF were pressured by President Trump to ban bump stocks … and so they did despite their own understanding that they had no such authority.

The new rule was challenged in federal court by a man named Michael Cargill (thus the name of the lawsuit, Garland v Cargill) who owned two bump stocks, complied with the rule to turn them in and then sued to get them back.

On Friday the Supreme Court, by a 6-3 vote, ruled that ATF does not have the authority to ban bump stocks as machine guns and overturned the rule.

The ATF had to know it was coming and that their action was not supported by the text of the law. Nevertheless, they made whatever arguments they could after being pushed initially by President Trump and subsequently under the maniacally anti-gun Biden administration, focusing more on “automatically” than on “a single function of the trigger,” both of which the Court’s majority rejected as a basis for banning bump stocks:

A semiautomatic rifle equipped with a bump stock is not a “machine gun” as defined by §5845(b) because: (1) it cannot fire more than one shot “by a single function of the trigger” and (2) even if it could, it would not do so “automatically.” ATF therefore exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.

As usual, many pundits and many people are reacting to this case as if it is about whether a bump stock is a good idea. And as usual, those pundits and people are missing the real target.

Anti-gun activists spent the day talking about how “bump stocks cause immense destruction and violence” (well, they sure did once but I’m unaware of any other time they’ve been used in a crime) and that the Court “has put countless lives in danger” (also manifestly not in evidence beyond that one tragic day.)

One of my radio show listeners texted me: “Hey yeah Ross, you saw the result of those bump stocks. You see how great they are for massacring people…not good for accuracy but great for massacring people. Totally something we should have available to everybody, no problem.”

But nobody in this case — as far as I can tell not even the plaintiff, and certainly not the Justices — argued either that bump stocks are a good idea or that they cannot ever be banned. Simply that they cannot be banned by current law.

Indeed, just as bump stocks are not machine guns they are equally not firearms (or even weapons) of any kind. Therefore, they would have no Second Amendment protection should Congress or a state legislature pass a law to ban them.

In his brief concurrence with the judgment, Justice Samuel Alito noted:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machine gun, and it thus strengthened the case for amending §5845(b). But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machine guns. 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.

The liberal dissent spends paragraphs talking about the history of machine guns and of their regulation, trying to convince us that a bump stock is a form of machine gun. To be fair, their argument is that by using one’s own power to pull a trigger once, a shooter using a bump stock can cause rapid fire of multiple rounds, thus functioning as a machine gun. The problem of course, is that in fact the trigger is being depressed for each round. The dissent says that the law regarding a “single function of the trigger” should be read as “a single human act” performed on the trigger but even that isn’t really true since the finger — albeit with non-human assistance — is pulling the trigger for each shot. (READ MORE: The Unsettling Truth About Climate Science and Politics)

It’s worth repeating that it wasn’t just the Court’s majority that disagreed with the dissent’s interpretation; the ATF themselves disagreed until Donald Trump pressured them to pass a rule that the ATF knew to be extralegal.

I don’t care about bump stocks. As a libertarian, my default is against government banning things and I think the fact that you can only name one time a bump stock has been used in a crime (albeit a truly terrible one) implies that, as usual, recency bias colored the conversation about them. That said, if a government (state or federal) banned bump stocks by a new act of law, it wouldn’t be a tragedy.

What is a tragedy, what truly represents the erosion or intentional degradation of the rule of law on which civil society is based, is allowing bureaucracies to usurp the function of legislators, making law either at their own whims or at the whims of political executives driven by short-term emotion or electoral calculation. Those risks are especially high when the president of the United States is not restrained by Constitutional and legal guardrails, whether by temperament or by insufficient checks and balances.

But the Constitution and the body of law that properly emanates from it are all that separate us from being the greatest nation in history and just another country that once seemed to have promise but inexorably drifted into bureaucratized tyranny.

Bureaucrats cannot be allowed to write law. Whenever there is a dispute in which the question arises of whether a regulation is supported by actual law, courts’ default position must be against the regulation. And arguments about the purported (and maybe actual) beneficial impact of the regulation must be ignored in that decision-making process. (Fixing this problem will require the Supreme Court’s overturning of their egregious creations known as Chevron deference and Auer deference, the former of which is the subject of two current Supreme Court cases whose results we should get within a few weeks.)

If we allow extralegal regulations to stand where we like the outcomes (and I’m not saying that was my position regarding bump stocks because, again, I really don’t care about them) what will be our firm ground from which to oppose extralegal regulations whose outcomes we don’t like? (READ MORE: The Cancer of Critical Race Theory)

If government is to ban something, then ban it by clearly written law. When the law does not allow a ban, and even (or perhaps especially) when the law is ambiguous, agencies must not be allowed to nevertheless enforce one. Anything else is the path to tyranny.

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