National Review
The Logical Fallacies of Sotomayor’s Bump-Stock Dissent
By DAN MCLAUGHLIN
June 14, 2024 4:13 PM
The justice’s dissent was a train wreck of bad reasoning.
This morning’s Supreme Court decision in Garland v. Cargill, overturning the Trump-era Bureau of Alcohol, Tobacco, Firearms and Explosives rule banning “bump stocks,” was both an easy case and a limited one, for reasons Charlie Cooke has explained here and here, and which are apparent from reading Justice Clarence Thomas’s opinion for a 6–3 majority. As Justice Samuel Alito’s concurrence emphasized, Cargill left Congress free to ban bump stocks; it simply concluded that it had not already done so in 1934 when it heavily regulated machine guns.
That’s a modest ruling, respectful of how the statutory language was treated in practice for 80 years. ATF for decades had agreed that the law largely prohibiting “machineguns” did not also ban bump stocks. That didn’t change because of new scholarship or somebody suddenly noticing that everybody had been wrong all along about the language of the law; it changed because of political pressure to do something (proving that the Trump administration wasn’t so different from past administrations in this regard). Even when the agency did an about-face after the 2017 Las Vegas shooting, it did not conclude that all methods for bump-firing of a non–machine gun converted the weapon into a machine gun.
And yet, Justice Sonia Sotomayor’s dissent for the three liberals siding with the Trump administration’s rule insisted on detaching the statutory language from reality, history, and consistency.
Fully Automatic Statute
Because this case is all about how guns work, a quick primer is useful. Two aspects of a handgun or rifle can be automated. One is reloading the bullet (or other projectile) into the chamber, so that the gun can be fired again immediately by pulling the trigger again. This is commonly referred to as making a gun “semiautomatic,” because the user doesn’t need to do anything to reload the chamber. As Sotomayor’s dissent correctly noted:
block quote
Semiautomatic weapons are not “machineguns” under the statute. Take, for instance, an AR–15-style semiautomatic assault rifle. To rapidly fire an AR–15, a shooter must rapidly pull the trigger himself. It is “semi” automatic because, although the rifle automatically loads a new cartridge into the chamber after it is fired, it fires only one shot each time the shooter pulls the trigger.
block quote end
The other function that can be automated is automating the firing process itself. The distinguishing feature of a fully automatic firearm is that multiple, continuous shots can be fired with a single pull of the trigger. As Thomas explained, similarly using the AR-15 rifle as an example:
block quote
Machinegun variants of the AR–15 style rifle include an additional component known as an auto sear. The auto sear catches the hammer as it swings backwards, but will release it again once a new cartridge is loaded if the trigger is being held back. . . . An auto sear thus permits a shooter to fire multiple shots while engaging the trigger only once. ATF has accordingly recognized that modifying a semiautomatic rifle or handgun with an auto sear converts it into a machinegun. [Citations omitted.]
block quote end
When Congress strictly regulated “machineguns” in 1934 (all but banning them, a law upheld under the Second Amendment in United States v. Miller (1939) and thus far unquestioned by the Court), it drew a statutory distinction that is consistent with this dichotomy, sanctioning automatic weapons but not semi-automatic ones. It defined a “machinegun” 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.” (26 U.S.C. §5845(b) (emphasis added)).
Congress could have written a definition that limited the rate of fire, although this would have created some serious complexities in measuring rates of fire — which may vary widely by the person firing the gun. Instead, it chose a definition with two central elements: the “single function of the trigger” must “automatically” shoot more than one shot. That definition, apparently suggested at a hearing by the president of the National Rifle Association, has the virtue of clarity because it is keyed to how the weapon itself is designed or modified, not how it is used. That allows manufacturers to know which guns they are allowed to sell to the public and which are exclusively for military use.
Analytically, this is an easy distinction to grasp, and one that would have presented itself naturally to lawmakers in 1934. Think of a typewriter and a computer keyboard. Some people can type terrifically quickly with a typewriter, but fundamentally, you need to hit the keys each time you want to create a new letter. (The same is true for a piano, unless it’s an automated player piano.) Even many touchscreens work this way. By contrast, if you hold down a single key on your keyboard, you can zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
Bump It Up
A user seeking a workaround to increase the rate of fire without an automated mechanism or one that changes how the trigger itself functions can do so by rigging the way the gun is held to produce “bump firing.” Basically, the gun recoils after each shot; if you position the gun just the right way, you can use the rhythmic motion of the recoil to keep depressing the trigger.
Incorporating all methods of bump firing into the statutory definition would undermine its basic clarity, because it would turn all manner of legal semiautomatic firearms into potentially illegal machine guns without any modification of the weapon’s internal mechanism. Indeed, Sotomayor referred to the guns used in the Las Vegas shooting as “commonly available, semiautomatic rifles” — the very definition of arms protected by the Second Amendment. And ATF did not even try. Instead, it banned only one specific tool, the “bump stock,” which enables bump firing in a particular way. Sotomayor conceded this in her description of methods of bump fire and which of them ATF banned:
block quote
A shooter can . . . manually “bump” an AR–15 to increase the rate of fire by using a belt loop or rubber band to hold his trigger finger in place and harness the recoil from the first shot to fire the rifle continuously. . . . To use a belt loop, he must hold the rifle low against his hip, put his finger in the trigger guard, and then loop his finger through a belt loop on his pants to lock the finger in place. . . . With his other hand, he then pushes the rifle forward until his stationary finger engages the trigger to fire the first shot…If the shooter keeps pressing the rifle forward against the finger in his belt loop, the repeated backward jump of the recoil combined with his forward pressure allows the rifle to fire continuously. . . . A shooter using this method, however, cannot shoot very precisely. He has neither the advantage of the sights to line up his shot, nor his shoulder to stabilize the recoil. A shooter can also use a rubber band or zip tie to tie a finger close to the trigger. . . . If the shooter is strong and skilled enough physically to control the distance and direction of the rifle’s significant recoil, the rifle will fire continuously.
A bump stock automates and stabilizes the bump firing process. It replaces a rifle’s standard stock, which is the part held against the shoulder. . . . A bump stock, unlike a standard stock, allows the rifle’s upper assembly to slide back and forth in the stock. . . . It also typically includes a finger rest on which the shooter can place his finger while shooting, and a “receiver module” that guides and regulates the weapon’s recoil. . . . As long as the shooter keeps his trigger finger on the finger rest and maintains constant forward pressure on the rifle’s barrel or front grip, the weapon will fire continuously. [Citations omitted.]
block quote end
In other words, Sotomayor — and ATF — distinguished methods of bump firing not by how the trigger worked or whether the internal mechanism of the gun was automated, but by two things. One is the accuracy of fire, resulting in part from the position in which the gun is held; the other is the amount of physical strength and skill required to operate the gun in bump-fire mode. Neither of these is a factor mentioned anywhere in the statute. Neither of them changes the fact that bump firing still requires depressing the trigger for each individual shot.
The majority, by contrast, focused on the two things the statute actually used as definitions: the trigger function and automation. As to the former, “the statutory definition . . . hinges on how many shots discharge when the shooter engages the trigger.” Unlike the dissent, the majority actually engaged with the language of ATF’s rule, which “defines ‘function of the trigger’ to include not only ‘a single pull of the trigger’ but also any ‘analogous motions.’” This is a regulatory red flag similar to the since-discredited King v. Burwell IRS rule that said it applied “notwithstanding” the statutory language. As the Court noted, “Every bump is a separate ‘function of the trigger’” if one takes seriously ATF’s notion that “one such analogous motion that qualifies as a single function of the trigger is ‘sliding the rifle forward’ to bump the trigger.” The fact that the dissent can’t even defend the actual language of the regulatory rule is a tell that its reading of the statute is not legal analysis.
As Thomas further explained, the dissent and the rule still don’t fix the problem of defining “function of the trigger” — and therefore “machinegun” — in a way that turns on the user rather than the gun. This is what harmonizes the “function” requirement with the latter statutory requirement of an “automatic” mechanism:
block quote
Firing multiple shots using a semiautomatic rifle with a bump stock requires more than a single function of the trigger. A shooter must also actively maintain just the right amount of forward pressure on the rifle’s front grip with his nontrigger hand. . . . Too much forward pressure and the rifle will not slide back far enough to release and reset the trigger, preventing the rifle from firing another shot. Too little pressure and the trigger will not bump the shooter’s trigger finger with sufficient force to fire another shot. Without this ongoing manual input, a semi-automatic rifle with a bump stock will not fire multiple shots. Thus, firing multiple shots requires engaging the trigger one time — and then some. [Citations omitted.]
block quote end
While not every machine gun functions in the same way, the defining feature is that the firing of multiple shots is automated within the gun, requiring nothing further than holding down the trigger:
block quote
Simply pressing and holding the trigger down on a fully automatic rifle is not manual input in addition to a trigger’s function — it is what causes the trigger to function in the first place. By contrast, pushing forward on the front grip of a semiautomatic rifle equipped with a bump stock is not part of functioning the trigger. After all, pushing on the front grip will not cause the weapon to fire unless the shooter also engages the trigger with his other hand. Thus, while a fully automatic rifle fires multiple rounds “automatically . . . by a single function of the trigger,” a semiautomatic rifle equipped with a bump stock can achieve the same result only by a single function of the trigger and then some.
block quote end
The dissent had to get creative to respond to this:
block quote
When a shooter “bump” fires a semiautomatic weapon without a bump stock, he must control several things using his own strength and skill: (1) the backward recoil of each shot, including both the direction in which the rifle moves and how far it moves when recoiling; (2) the trigger finger, by maintaining a stationary position with a loose enough hold on the trigger that the rapidly moving gun will hit his finger each time; and (3) the forward motion of the rifle after it recoils backward. A bump stock automates those processes. The replacement stock controls the direction and distance of the recoil, and the finger rest obviates the need to maintain a stationary finger position. [Emphasis added.]
block quote end
To say that a rest obviates the need to hold a firing finger in place is a very different thing than saying that it “automates” what happens when the finger is depressed. When Aaron and Hur held up Moses’s arms during the battle with the Amalekites, they didn’t “automate” the position of his hands. When you have an ergonomic armrest aside your computer keyboard, you haven’t “automated” your arm position. The same is true of the replacement stock, which functions more like a bedspring than like a motor.
Sotomayor tried to call out the majority for preferring the statutory definition to what she claimed was the more common use of the words in the statute, but as Thomas noted, the Court before has concluded that “when Congress takes the trouble to define the terms it uses, a court must respect its definitions as virtually conclusive. . . . This Court will not deviate from an express statutory definition merely because it varies from the term’s ordinary meaning.” And noticeably, while the dissent quarreled with the majority’s choice of dictionary definitions for the word “function,” Sotomayor did not cite the dictionary definition of “automatically.” The same Oxford English Dictionary from 1933 that she cited offers some definitions. Consider how it defines “automatically”:
block quote
In an automatic manner; like an automaton; by spontaneous, or apparently spontaneous, action.
Without active thought or volition; unconsciously, involuntarily, mechanically. [Emphasis added.]
block quote end
Or “automatic”:
block quote
Lit[erally] Self-acting, having the power of motion or action within itself.
Self-acting under conditions fixed for it, going of itself. Applied to machinery and its movements, which produce results otherwise done by hand, or which simulate human or animal action, as an ‘automatic mouse.’
Of animal actions: Like those of mechanical automatons’ not accomplished by volition or consciousness; ‘mechanical.’
Not characterized by active intelligence; merely mechanical. [Emphasis added.]
block quote end
“Automaton,” which is referenced in the definition of “automatically,” gives as its literal definition “something which has the power of spontaneous motion or self-movement” and offers as well “a piece of mechanism having its motive power so concealed that it appears to move spontaneously; a machine that has within itself the power of motion under conditions fixed for it, but not by it,” again referencing clocks and mechanical mice, which must have been a bigger thing in 1933 than they are today. [Emphasis added.]
If you put yourself even briefly in the mindset of people from the 1930s — as a good textualist should, when reading a statute written then — it becomes clear that a reference to “automatic” operation of a gun for purpose of defining “machinegun” was one that ran like a machine due to an internal mechanism, not a way of rigging the user’s hands and arms to make manual operation of the machine easier.
History and Function
Sotomayor stressed the origins of the 1934 statute in popular and law-enforcement alarm over gangsters such as Al Capone using tommy guns and other machine guns to “rob banks, ambush the police, and murder rivals.” She noted that, while machine guns date back to the Gatling gun and other Civil War–era machine guns, “smaller and lighter submachine guns were not commercially available until the 1920s.” This history doesn’t help her.
What’s the distinction between the Gatling gun and the tommy gun? The tommy gun is light, handheld, and mobile. You can carry it into a bank. You can fire it at the cops from a moving Studebaker. You can track down a gangland rival in a dark alley or surprise him in the street, then get away.
None of this is characteristic of how a bump stock is used. It is designed for shooting from a fixed position. You wouldn’t use it to rob a bank or fire at a pursuing police car. It’s still far less accurate than a semiautomatic rifle firing normally, so it’s not very useful for targeting an individual. It traditionally has been more of a hobbyist gadget. A major reason that it attracted no demands for regulatory action before 2017 is that the unique setting of the Las Vegas mass shooting — a gunman operating from a window, spraying into a large crowd — is about the only case for its practical usefulness in committing crimes. That shooting in no way resembled the kind of thing that animated Congress in 1934.
Of course, the historical problem Congress was aiming to solve is far less important than the words it chose. And it doesn’t answer our question today of whether Congress ought to ban bump stocks. But it only further underlines the fact that Sotomayor’s closing — “the majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter” — ignores the fact that Congress simply didn’t write the definition with either the intent or the language to cover situations like the Las Vegas shooting.
No comments:
Post a Comment