Stephen Paddock massacred 60 and wounded nearly 500 people at an outdoor music festival in Las Vegas in 2017. In response, amazingly, Donald Trump ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to ban “bump stocks,” the firearm accessory that, in effect, turned Paddock’s semi-automatic rifles capable of one shot per pull of the trigger into weapons capable of spraying bullets far more rapidly.
Forensic experts concluded that from his 32nd-floor hotel room, Paddock poured nine bullets per second into the crowd in the slaughter during which he fired an estimated 1,000 bullets. The Trump administration called for a rule “banning all devices that turn legal weapons into machineguns.” The ATF, which had for the previous decade concluded that rifles with attached bump stocks were not machine guns, reversed course and passed the ban.
Subsequently, several federal district and appeals courts have weighed in on the ban but with opposite rulings. In the most recent case, the ultra-conservative Fifth Circuit Court of Appeals ruled 13-3 in Michael Cargill vs. Merrick Garland on the first anniversary of the Jan. 6 insurrection, when most eyes were turned elsewhere, that:
The definition of “machinegun” as set forth in the National Firearms Act and Gun Control Act does not apply to bump stocks. And if there were any doubt as to this conclusion, we conclude that the statutory definition is ambiguous, at the very least. The rule of lenity therefore compels us to construe the statute in Cargill’s favor. Either way, we must REVERSE.
Although it is frequently labeled a “ban,” the National Firearms Act (NFA), first passed in 1934 and much amended since, does not bar everyone from owning a machine gun or other automatic firearm. Rather it restricts ownership to individuals who undergo thorough FBI background checks, must pay an excise tax for each such weapon they purchase, and must register it with the ATF. Also, as a result of changes in the law, no such firearm made or owned after 1986 may be legally owned. There are hundreds of thousands of these in private hands even though they are hugely expensive.
Foes of the bump stock rule argue that while a semi-automatic rifle with a bump stock allows for much faster firing than an unassisted semi-automatic weapon, it does not work the way the NFA defines a machine gun. That is, it must work “automatically,” firing bullets as long as the trigger is held down as opposed to requiring it to be pulled for each shot. Bump stocks push the trigger against the shooter’s finger, which is, they say, the same as one pull per shot even though this method is much quicker. Therefore, the plaintiffs contend, a rifle with a bump stock cannot legitimately be labeled a machine gun.
The en banc Fifth Circuit agreed that bump stocks do not machine guns make, noting that the ATF itself did not previously call bump stock-assisted firearms machine guns. That difference means little to anyone facing the hail of bullets that bump stocks make possible. The question is whether it will make a difference to the U.S. Supreme Court when the ATF rule finally finds its way there. Gun-related rulings from the court since 2008 don’t offer much hope to anyone who thinks the bump stock rule makes sense, as 82% of Americans do.
At The Nation, Elie Mystal wrote last week:
The Supreme Court will eventually rule in favor of death. But the legal wrangling about the technical function of how these things are designed to kill us highlights a larger problem: the legal futility of one-off weapon bans. It’s a bitter pill for people to swallow, because bans focused on specific weapons are practically effective and feel politically achievable.
But legally, their impact is fleeting. They don’t offer permanent solutions to our problems. Gun bans are a temporary therapeutic, not a long-term cure to our disease of gun violence. That’s because the gun industry will always produce a newer, better bump stock. It will always make different, more deadly weapons. It will always refine the speed and killing power of firearms. And the plodding regulatory process simply will not, and likely cannot, keep up with whatever gunmakers do to murder people next. ...
Our gun laws are a deadly joke. They will continue to be jokes as long as we try to solve this problem one weapon at a time. It’s folly to try to regulate which particular overcompensation machine aggrieved men are allowed to smuggle into their trousers. Instead, we should regulate the category of people allowed to purchase any weapon, of any kind, at all.
The Supreme Court could, presumably, surprise us in this matter. But that seems highly doubtful. And there’s probably more to come.
Given the high court’s gun decisions over the past 15 years, including its reasoning on concealed-carry permit restrictions in the New York State Rifle & Pistol Ass’n, Inc., v. Bruen, assault weapon bans like those now in force in nine states may soon be tossed, too. Although the Supreme Court has in the past rejected more than 60 challenges to state-legislated assault weapons bans, it has recently granted certiorari in the case of Bianchi vs. Brian Frosh, Attorney General of Maryland, et al., which challenges Maryland’s decade-old ban on such weapons. If the ruling in that case overturns Maryland’s ban—and by implication the bans of the other six states and Illinois’s newly enacted ban—it would mean that a renewed federal assault weapons ban, however unlikely of Senate passage that is, would also be up for grabs.