Civilians own automatic weapons?????

The Supreme Court will decide whether to let civilians own automatic weapons

Garland v. Cargill asks whether gun makers can evade the ban on machine guns with a device called a bump stock.

By Ian Millhiser 

On February 28, the Supreme Court will hear a case that could effectively make it legal for civilians to own automatic weapons capable of firing as many as nine bullets every second.

The case, known as Garland v. Cargill, involves bump stocks, devices that use a gun’s recoil to repeatedly fire the weapon. Bump stocks cause a semiautomatic firearm’s trigger to buck against the shooter’s finger, as the gun’s recoil causes it to jerk back and forth — repeatedly “bumping” the trigger and causing the gun to fire as if it were fully automatic.

A “semiautomatic” weapon refers to a gun that loads a bullet into the chamber or otherwise prepares itself to fire again after discharging a bullet, but that will not fire a second bullet until the shooter pulls the trigger a second time. An “automatic” weapon, by contrast, will fire a continuous stream of bullets — though the shooter often must hold down the trigger to do so.

The Trump administration issued a regulation banning bump stocks in 2018, after a gunman used one to kill 60 people and wound hundreds more during a country music festival in Las Vegas. A 1986 law makes it a crime to own a “machinegun,” and the Trump administration determined that this law extends to bump stocks.

But federal courts have divided on whether federal law defines the term “machinegun” broadly enough to include bump stocks, and the law does appear to be genuinely ambiguous on this point.

If this case, which was brought by an individual gun owner who wants to own bump stocks, had arisen just a few years ago, it would have been a slam dunk victory for the government. The Supreme Court’s decision in Chevron v. Natural Resources Defense Council (1984) generally calls for judges to defer to a federal agency’s reading of an ambiguous federal law, so Chevron calls for the courts to defer to the government’s interpretation of what constitutes a “machinegun.”

But the Court is likely to overrule Chevron in a pair of cases it heard in January, shifting final authority over a simply enormous array of policy questions away from the executive branch of government and to the Court itself. And that means that the fate of the current ban on bump stocks most likely rests entirely upon whether five justices want such a ban to exist.

The federal ban on automatic weapons is genuinely ambiguous

Federal law defines a “machinegun” to include “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.” The plaintiff in Cargill makes two separate arguments that this definition doesn’t extend to bump stocks.

One of these arguments is fairly plausible, while the other is not.

Starting with the plaintiff’s weaker argument, his lawyers claim that a gun equipped with a bump stock does not fire “automatically.” The US Court of Appeals for the Fifth Circuit, a far-right court that routinely issues dubiously reasoned decisions implementing conservative policy goals, agreed with this argument, concluding that the bump stocks at issue in this case do not allow automatic fire because they only function if the shooter maintains “manual, forward pressure on the barrel and manual, backward pressure on the trigger ledge.”

The problem with this argument is that it proves far too much. If a gun cannot be an automatic weapon if it requires the shooter to maintain continuous pressure on some part of the gun, then virtually all automatic weapons do not qualify as “machineguns.”

As the Justice Department explains in its brief to the justices, most traditional machine guns “fire only by maintaining constant rearward pressure on the trigger” — that is, the shooter must hold down the trigger or the gun stops firing. As the DOJ argues, there is “no meaningful difference” between a weapon that requires continuous pressure on the trigger and one that requires continuous pressure on some other part of the gun. Both types of guns should be considered automatic weapons because both kinds of guns continue firing until the shooter stops making the gun fire.

The Cargill plaintiff’s stronger argument, meanwhile, turns on the federal law’s statement that a machine gun must engage in automatic fire “by a single function of the trigger.” Federal judges are quite divided on how to read this provision, which does appear to be genuinely ambiguous.

Some courts, like the left-leaning DC Circuit, concluded that this reference to “a single function of the trigger” should be read to mean “a single pull of the trigger from the perspective of the shooter.” Thus, as that court said in Guedes v. ATF (2019), a semiautomatic weapon equipped with a bump stock counts as a machine gun because “the shooter engages in a single pull of the trigger with her trigger finger, and that action, via the operation of the bump stock, yields a continuous stream of fire as long she keeps her finger stationary and does not release it.”

Alternatively, much of the Fifth Circuit concluded that a bump stock-equipped gun does not count as a machine gun because the trigger itself moves back and forth while such a gun is being fired. Although these judges conceded that bump stocks allow semiautomatic weapons to be rapidly fired, they claimed that “the fact remains that only one bullet is fired each time the shooter pulls the trigger.”

So how should the Supreme Court resolve this ambiguity?

Both sides of this case can point to competing rules guiding how statutes should be interpreted to support their preferred outcome.

Many judges who’ve ruled against the bump stock ban point to something called the “rule of lenity” to justify that decision. Generally speaking, this rule establishes that, when a criminal law is ambiguous, it should be construed in favor of defendants. As the Supreme Court said in Rewis v. United States (1971), “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”

But the rule of lenity is also a very weak peg to hang any legal decision upon. That’s because, in Barber v. Thomas (2010), the Supreme Court concluded that “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a ‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to what Congress intended.’”

The Justice Department, meanwhile, points to a rule known as the “presumption against ineffectiveness” to justify leaving the bump stock ban in place. This rule holds that statutes generally should not be construed in ways that aid in “evasion of the law.”

It is also a very old rule. The DOJ’s brief cites a 200-year-old Supreme Court decision, known as The Emily and the Caroline (1824), which warns against reading laws in ways that would render “the law in a great measure nugatory and enable offenders to elude its provisions in the most easy manner.” (“Nugatory” means that the law is inoperative or unable to function.)

“In construing a statute, penal as well as others,” the Court explained in The Emily, “we must look to the object in view, and never adopt an interpretation that will defeat its own purpose if it will admit of any other reasonable construction.” Thus, if a law can fairly be read in more than one way, a court should avoid reading it in a way that renders the law ineffective.

There is some recent evidence, moreover, that a majority of the justices may be sympathetic to the DOJ’s argument that laws should not be read to make them ineffective — even though this very conservative Supreme Court tends to be sympathetic to arguments made by gun rights plaintiffs.

Last August, the Supreme Court temporarily blocked a lower court’s decision permitting the sale of “ghost guns,” firearms that are sold in a dismantled state in order to evade certain federal gun laws.

Federal law typically requires gun purchasers to submit to a background check, and it also requires guns to be marked with a serial number to help track the weapon if it is used in a crime. These requirements apply to “any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” To prevent gun sellers from evading this law by selling dismantled guns as individual parts, the same federal law also applies to “the frame or receiver of any such weapon,” the skeletal part of a firearm that houses other components, such as the barrel or trigger mechanism.

Ghost guns seek to evade these requirements because they are sold dismantled, and the frame or receiver is sold incomplete — although often they can be completed with minimal work, such as drilling a single hole in the frame.

In any event, a majority of the justices decided, in Garland v. VanDerStok, to block a lower court decision that would have allowed these ghost guns to be sold without background checks or serial numbers. VanDerStok was a 5-4 decision, with Chief Justice John Roberts and Justice Amy Coney Barrett crossing over to vote with the Court’s three Democratic appointees.

So that’s, at least, some evidence that this Court will apply a presumption against ineffectiveness to gun laws like the one at issue in Cargill.

Regardless, the bump stocks case does turn on a genuinely ambiguous provision of federal law. That means that, in a world without Chevron, the question of whether gun manufacturers can sell devices that evade the ban on machine guns will turn on which outcome a majority of the justices prefer.