Five years, five months, and twenty-eight days. That’s how long it took from the time Donald Trump’s DOJ bypassed Congress to ex post facto outlaw bump stocks to last Friday when the Supreme Court, in a 6-3 decision, struck down that 2018 final rule. Michael Cargill and the organizations supporting him have fought a long and difficult legal battle trying to overturn an arbitrary and wholly illegal action on the part of the previous administration, and their dedicated efforts have finally culminated in a victory for the right to keep and bear arms and against executive overreach.
I highly encourage everyone to go out and read the Court’s decision here. When you do, you should read the dissenting opinion before the majority opinion; although the majority opinion is the binding one, the dissent can help us to understand the thought process (or lack thereof) behind anti-gun arguments laypeople often raise. It lends itself to the same kind of analysis as an anti-gun speech or op-ed piece, so in this blog post, I’ll try to break it down: what arguments does Justice Sotomayor make, how do they support her points, and how valid is her reasoning?
The dissenting opinion seems to be built around three lines of reasoning:
- A bump stock is a machine gun (“machinegun” in legal terms) because it enables the host firearm to discharge more than one round with a single function of the trigger.
- Regardless of the specific wording of the NFA’s provision against machine guns, its purpose was to restrict firearms which could discharge many rounds continuously at a high rate of fire.
- If the bump stock ban were overturned, it would make it difficult for ATF to enforce the NFA against actual machine guns.
Quote: “These simple devices harness a rifle’s recoil energy… All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.” (page 1)
Purpose: Supports the first line of reasoning. If a bump stock allows the host firearm to fire continuously with a single pull of the trigger, then it is a machine gun.
Rating: Mostly False.
Analysis: A bump stock cannot “harness… recoil energy” because it provides no mechanical function in itself, it is only an aid to the already-possible technique of bump-firing. A device known as the Akins Accelerator was available for sale in the early 2000s which contained a return spring enabling the host firearm, a Ruger 10/22, to fire continuously without any user input other than keeping the trigger finger stationary. After an initial decision letter ruling the Akins Accelerator legal, ATF reversed course and declared it a machine gun. Bump stocks lack this functionality, instead requiring the user to manually push the rifle forward so the trigger can reset each time.
Quote: “The Trump administration, with widespread bipartisan support, banned bump stocks as machineguns under the statute.”
Purpose: To imply legislative consent for the BATFE, an executive agency, to unilaterally ban bump stocks.
Rating: False.
Analysis: Federal legislators proposed several bills that would have banned bump stocks, but Congress did not pass them. In a 2018 public statement, the late Senator Dianne Feinstein issued a public statement in 2018 (cited by the majority) in which she said that “ATF has said as recently as April 2017 that it lacks this authority… Unbelievably, the regulation hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it. The gun lobby and manufacturers will have a field day with this reasoning.” She was right, we did! In his opinion concurring with that of the majority, Justice Alito implies that he believes bump stocks can and should be banned, but that legislation is the only way to do it.
Quote: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”
Purpose: Huh?
Rating: Quack.
Analysis: You’ve heard of the Twinkie defense, you’ve heard of the Chewbacca defense, now welcome to the era of duck jurisprudence! Although I can’t take credit for coining the term, this is a rhetorical technique using an irrelevant colloquialism to create the impression that the arguer’s viewpoint is more parsimonious, and therefore more correct.
Quote: “A bump stock automates and stabilizes the bump firing [sic] process.”
Purpose: By saying “automate,” Sotomayor references the text of the statute to imply that a bump stock is a machine gun, supporting the first line of reasoning.
Rating: Partially True.
Analysis: A bump stock does stabilize the bump-firing process, it does not automate it. This quote is preceded by an explanation of how bump-firing works and followed by an incomplete explanation of how bump-firing works with a bump stock. Notably, both explanations state that the rifle “will fire continuously” and do not mention that bump-firing, with or without a bump stock, is a technique to pull the trigger rapidly. The rifle still fires one time each time the trigger is pulled.
Quote: “Bump stocks… ‘conver[t]’ semiautomatic rifles so that a single pull of the trigger provides continuous fire as long as the shooter maintains forward pressure on the gun.”
Purpose: This is an explicit claim that a bump stock allows to host firearm to fire “more than one shot… by a single function of the trigger” as the statute states.
Rating: False.
Analysis: This statement can only be true if the first pull of the trigger is somehow fundamentally different from each subsequent pull of the trigger, or if the trigger ceases to be the trigger when the bump stock is installed. This opinion makes neither argument.
Quote: “A bump-stock-equipped semi-automatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure.”
Purpose: A restatement of the central thesis before addressing the majority opinion.
Rating: False and Disingenuous.
Analysis: As stated previously, a function of the trigger must still occur for the weapon to fire each round.
Quote: “The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull… fixates on a firearm’s internal mechanics while ignoring the human act on the trigger referenced by the statute… maintaining a myopic focus on a trigger’s mechanics rather than on how a shooter uses a trigger to initiate fire.”
Purpose: To support the second line of reasoning.
Rating: False and Disingenuous.
Analysis: This begins a segment of the dissenting opinion I can charitably characterize as interesting and creative. Here, Sotomayor’s understanding of the statute begins to drift away from the actual text. The reason the majority looks to the internal mechanism is because the statute regards a “function of the trigger,” not a “function of the shooter!”
Quote: “[The majority’s] interpretation requires six diagrams and an animation to decipher the meaning of the statutory text… flies in the face of this Court’s standard tools of statutory interpretation… eviscerates Congress’ regulation of machineguns and enables gun users and manufacturers to circumvent federal law.”
Purpose: An appeal to emotion.
Rating: Disingenuous.
Analysis: The two-paragraph passage in which this quote is found is another example of the fallacy of simplicity: by pointing to “six diagrams and an animation,” this quote implies that the majority opinion is overly convoluted and therefore more likely wrong. In fact, the aforementioned diagrams serve the exact same purpose as the previous section in this opinion—to explain the functioning of a trigger mechanism in a semi-automatic firearm.
Quote: “In a bump-stock-equipped AR-15, the mechanism for continuous fire is external: The shooter’s forward pressure moves the curved lever back and forth against his stationary trigger finger.”
Purpose: This quote serves to further divorce the minority’s understanding of the statute from the actual letter of the law as it has stood for the past 90 years.
Rating: Misleading.
Analysis: If I understand correctly, what’s being argued here is that the act of pushing the trigger against a finger is different from pushing a finger against the trigger, and that the initial pull of the trigger is the only one that counts. By that same logic, if a shooter chooses to fire a single shot with a bump-stock-equipped rifle, that shot has been fired with zero functions of the trigger (because the shooter moved the rifle, not his trigger finger). That “mechanism for continuous fire” is the shooter himself and the reason it is “external” is because he isn’t a part of either the firearm or the bump stock.
Quote: “The majority arrogates Congress’s policymaking role to itself by allowing bump-stock users to circumvent Congress’s ban on weapons that shoot rapidly via a single action of the shooter.”
Purpose: To support the third line of reasoning.
Rating: Misleading.
Analysis: The NFA isn’t a ban, first of all, it imposes taxes and registration requirements; second, the relevant provision says nothing about rate of fire or “action[s] of the shooter,” but instead about “function[s] of the trigger.” Here as before, the minority’s understanding of the law differs significantly from the text.
Quote: “[ATF] has reasonably classified many transformative devices other than bump stocks as ‘machinegun[s]…’ bump-stock [sic] manufacturers recognizing that they are exploiting a loophole.”
Purpose: To create a false equivalency between bump stocks and powered trigger actuators.
Rating: Missing the point.
Analysis: What Sotomayor calls “exploiting a loophole” is actually “following the law in a way that was explicitly approved no fewer than ten times!” You don’t get to call something a “loophole” just because it complies with the law in a way you don’t like. Unless you’re on the U.S. Supreme Court, I guess.
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