As usual, in the upcoming Term, important cases will turn on how the Supreme Court goes about interpreting federal statutes. Unfortunately, the Court does not always approach this core task as it should. For example, last Term in Garland v. Cargill the Supreme Court invalidated a regulation from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that effectively criminalized possession of so-called bump stocks. Bump stocks are rifle butts that replace traditional stocks of semiautomatic rifles and allow the upper assembly of each rifle to slide back and forth in its stock. When using a rifle equipped with a bump stock, a shooter pulls the trigger once and holds his trigger finger steady while maintaining pressure with his off hand on the barrel or forward grip of the weapon; the energy of the gun’s recoil combined with the pressure on the barrel will cause the trigger to “bump” on the shooter’s stationary finger, resulting in rapidly repeated fire. To appreciate what this means in practice, consider that a separate pull of the trigger for each round can enable an AR-15 semiautomatic rifle to fire at a rate of 60 rounds per minute in the hands of an ordinary shooter and up to 180 rounds per minute when fired by an expert. An M16 assault rifle, a full-fledged machine gun, operates at 800–950 rounds per minute. An AR-15 rifle outfitted with a bump stock can generate 400–800 rounds per minute, much closer to the latter than the former.
By 1934, what is now known as the traditional machine gun had become notorious as the weapon of criminals, particularly in its incarnation as the Thompson submachine gun, or Tommy gun. In that year Congress enacted the National Firearms Act, making criminal private possession of machine guns. The statute defined a forbidden gun as “any weapon which shoots . . . [i]s designed to shoot, or can be restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” At that time, bump stocks didn’t exist; bump stocks were first designed and used after 2000. For a number of years, the ATF held the view that these retrofits did not convert semiautomatic rifles into machine guns. Then, in 2017, in Las Vegas, a shooter armed with semiautomatic rifles equipped with bump stocks opened fire on a crowd from a hotel room window. In a matter of minutes, he killed fifty-eight people and wounded more than five hundred. When legislative efforts to amend the statute foundered, President Donald Trump ordered the Attorney General to have rifles with bump stocks classified as machine guns by regulation. The ATF obliged with a regulation that interpreted the term “machine gun” in the National Firearms Act as a weapon that can fire “automatically more than one shot, without manual reloading, by a single pull of the trigger.”
For Justice Clarence Thomas, writing for a majority of six in the Cargill case, bump stocks do not fall within the 1934 Act because they do not satisfy the two definitional aspects set out in the statute: Bump-stock-equipped rifles do not fire more than one shot with “a single function of the trigger” nor do they do so “automatically” (emphasis added). Although a rifle with a bump stock needs only one pull of the trigger to begin continuous fire, the weapon’s internal trigger mechanism is reset after each round, just as with an unmodified rifle; the bump just makes the firing cycle more rapid. The majority thus reads “function” as meaning “reset,” so each shot or firing cycle is a “separate function of the trigger.” Moreover, for the majority, a rifle with a bump stock does not operate “automatically” because the shooter must maintain forward pressure on the barrel with his off-hand; without that action by the user, the trigger won’t bump the shooter’s unmoving finger. Hence, the repeating fire of the rifle is not “automatic” but depends on additional manual input.
Justice Sonia Sotomayor’s dissent dismisses the first point concerning the internal operation of the weapon as irrelevant; however they operate, both kinds of weapons fire continuously with a single pull of the trigger. On the latter point, the dissent says that traditional machine guns continue firing only if the shooter keeps constant pressure on the trigger. The dissent’s argument here seems to be that if continuous pressure on the trigger is not considered additional “manual input,” then neither should be forward pressure on the barrel.
Thomas’s primary rejoinder to the dissent is that holding down the trigger is not manual input that alters or adds to a trigger’s single function—“it is what causes a trigger to function in the first place.” It is true that pulling the trigger of a traditional machine gun begins a firing cycle that can continue without reset of the trigger mechanism—with a single function of the trigger, as the majority would have it. But if the trigger were released, the weapon would stop firing and the trigger would be reset. Query why maintaining steady pressure on the trigger (in opposition to what would be mechanical pressure for the trigger to return to its original position) constitutes less additional manual input than does forward pressure on the barrel. (Neither opinion mentions that rapid-fire weapons demand constant downward pressure to prevent the recoil from causing the barrel to rise, another way in which neither gun is “automatic” in the sense that continued physical energy by the user is unneeded.)
The dissent concludes by invoking the so-called canon of statutory interpretation that legislation should not be read in a way that makes the statute “useless.” Thomas counters: “A law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest. . . . Under our reading section 5845(b) still regulates all traditional machine guns. The fact that it does not capture all weapons capable of a high rate of fire plainly does not render the law useless.”
Even a person who believes that Thomas was correct and Sotomayor wrong could find his approach to implementing the statute offensively mealy-mouthed. A more honest way of putting the matter—one that acknowledged responsibility for what the decision actually does—might read like this: Fidelity to the rule of law compels interpretation of the statute in strict accordance with its terms even at the cost of increasing the chance of horrific massacres like the one that motivated the regulation. Justice Samuel Alito, in a short concurring opinion, is at least a little more candid than Thomas. He says: “I have little doubt that the Congress that enacted 26 U.S.C. § 5848(b) would not have seen any material difference between a machine gun and a semiautomatic rifle equipped with a bump stock.” But he nonetheless goes on to say, “But the statutory text is clear, and we must follow it.”
But was the statutory text at issue in Cargill so clear? In my opinion, the majority and dissent each put forward a tenable reading of the Firearms Act. In insisting on its interpretation, the majority, I believe, neglected two related points: the malleability of most (all?) language, and the reason language is deployed in the first place. A string of words that is syntactically correct and appears to have semantic content does not just float in a vacuum; it does something. If I say during a Super Bowl watch party at which lots of food is served, “please pass the salt,” I am not asking someone to imitate with a salt shaker Patrick Mahomes’s most recent touchdown strike, but instead am requesting someone gently hand me the shaker so that I can add salt to my food. A piece of legislation is no different in this respect; it is a grouping of words aimed at accomplishing something. And judges should cooperate in accomplishing it, like a polite companion at the dining room table. Put another way, judges often (I don’t say always) ought to see themselves as partners or colleagues of the legislature. This approach resembles the so-called “mischief rule” of the British courts that can be traced to Hayden’s Case of 1584. Under this approach, judges look for the “mischief” Parliament was trying to remedy or, as I would prefer to put it, what policy the legislature sought to advance.
In the Cargill case, the answer seems obvious: Congress aimed to make rapid-fire weapons unavailable. If Alito is correct that there is no reason to think “that the Congress that enacted 26 U.S.C. § 5848(b) would . . . have seen any material difference between a machine gun and a semiautomatic rifle equipped with a bump stock,” that should be the end of the matter. To say, as Justice Thomas does, that eliminating rapid-fire firearms was no more than “a conceivable statutory purpose” is willfully oblivious. Given two possible interpretations of the statute, the Court should have chosen the one that carried forward, instead of frustrating, Congress’s purpose. As Justice Oliver Wendell Holmes once put it, it won’t do to say, “the major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is an inadequate discharge of duty for courts to say: we see what you are driving at, but you have not said it, and therefore we shall go on as before.”
Two slivers of consolation remain. First, all the Justices appear to take it for granted (or at least don’t question at all) that the ban on traditional machine guns is constitutional. Second, it is thus open to the states (even if Congress can’t get its act together) to ban bump stocks, as sixteen states and the District of Columbia have done. For example, California Penal Code section 32900 makes it a misdemeanor to possess “multiburst trigger activators.”
While there are still a few avenues for lawmakers to address the dangers of rapid-fire weapons, the Supreme Court’s decision in Cargill highlights the need for the judiciary to more seriously consider legislative purpose. In the meantime, lawmakers would be well advised to pay maximum attention to statutory language, which the Court may scrutinize hypertechnically.
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