The Supreme Court’s Next Big Gun Case Puts Us All in the Crosshairs


November 7, 2023

The Supreme Court’s Next Big Gun Case Puts Us All in the Crosshairs

If the court rules in favor of the gun lobby, we could see a return of bump stocks, which turn semiautomatic rifles into machine guns.

Elie Mystal

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A bump stock is installed on an AK-47 at Good Guys Gun and Range on February 21, 2018, in Orem, Utah.

(George Frey / Getty Images)

On Friday, the Supreme Court agreed to hear another gun case. That alone should make people hide under their desks at school, because at this point in our bloody republic, every time the Supreme Court decides to entertain the gun lobby, more children are likely to die.

The case involves a challenge to the federal ban on “bump stocks.” Bump stocks are a modification that can be attached to semiautomatic rifles to make them perform as fully automatic weapons. A shooter pulls the trigger to fire the weapon, and the bump stock uses the recoil from that action to pull the trigger again and again, resulting in a near continuous rate of fire, just like a machine gun.

I have never heard a reasonable argument for why a sportsman or a hunter needs to turn their rifle into a machine gun with the use of a bump stock to kill Bambi’s mom. The only purpose of a bump stock is to kill as many people as possible, as quickly as possible. That is, in fact, how a bump stock was used in the 2017 Las Vegas music festival mass shooting. Aided by bump stocks, shooter Stephen Paddock, 64, was able to fire 1,058 bullets from 15 of the 24 different weapons he brought with him to Vegas, killing 60 people and wounding hundreds more. He did this in around 10 minutes.

In response to this mass shooting, the Trump administration (yes, that Trump administration) banned bump stocks in 2018. Trump’s Bureau of Alcohol, Tobacco, and Firearms determined that bump stocks turned guns into machine guns, and machine guns have been banned in the US since 1986. Don’t worry, marksmen, you can still buy 24 guns and bring thousands and thousands of rounds of ammunition with you to “hunt,” as Paddock did… you just have to unload all of that lead semiautomatically instead of fully automatically. I’m sure that the National Rifle Association markets some kind of muscle-relaxing cream for shooters who get cramps in their trigger finger.

Still, ammosexuals and the gun lobby were not happy; apparently, the level of death shooters are able to unleash without bump stocks is not enough for them. So a collection of groups and individuals sued the government in multiple jurisdictions to keep their bump stocks.

The lower federal circuits disagreed with each other on whether the bump stock ban is constitutional; the reason was the wording of the 1986 ban on machine guns. The 1986 law defines machine guns as weapons that automatically fire more than one shot “by a single function of the trigger.” Bump stocks are designed to try to circumvent this precise formulation. The gun’s recoil “bumps” up against the shooter’s shoulder, causing additional pulls of the trigger without the shooter having to think about it, thus, ammosexuals argue, achieving multiple “functions of the trigger” instead of just one.

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The Court of Appeals for the District of Columbia rejected this obvious sophistry and upheld the bump stock ban. That court ruled that, from the shooter’s perspective, there is only one pull of the trigger, and that one pull results in continuous fire. The ultra-conservative and functionally deranged Fifth Circuit Court of Appeals, of course, saw things differently, and ruled that bump stocks are not machine guns because they still require one pull per bullet. Meanwhile, the Sixth Circuit Court of Appeals, which sprawls from Michigan to Tennessee, said that the 1986 law is itself ambiguous, and struck down the bump stock ban based on something called “the rule of lenity,” which is a legal term for the idea that when a criminal law is ambiguous, the benefit of the doubt should go to the criminal defendant.

These disparate court opinions highlight a consistent problem with federal weapons bans, even when Congress gets its hands out of the NRA’s pockets long enough to pass one: If you ban a gun, gun manufacturers will just make a different one that does the same thing but call it something else. That’s why I’ve never been in favor of an “assault weapons ban”: No matter how the government defines assault weapons, engineers will just view it as a challenge to make a slightly different, but still deadly, weapon of mass destruction that avoids the technical definition of what was banned. If you ban AR-15s today, they’ll start producing AR-1500s tomorrow, and Republicans in Congress and on the courts will argue that the new gun is totally different from the one that was prohibited. The way forward is to ban guns except as needed by a well-regulated militia. Everything else is just changing the retail name of the thing that will be purchased to murder children and ex-girlfriends.

In any event, the Supreme Court pretty much had to take up this case to resolve the disagreement between the lower circuits, but the ideologies of the conservatives who control the Supreme Court suggest that they will resolve the dispute in whichever way kills the most people. I can already hear Justice Neil Gorsuch dismissively saying that if Congress wanted to ban “multiple” pulls of the trigger to produce continuous fire, it would have.

On Vox, Ian Millhiser brought up a terrible potential effect of this case that somehow makes everything worse: If the court strikes down the bump stock ban now, based on the legal ambiguity of the machine gun ban, it’s likely that Congress will never be allowed to go back and make it clear that bump stocks are, in fact, banned. That’s because of the court’s disastrous ruling in New York State Rifle & Pistol Association v. Bruen. Bruen makes it functionally unconstitutional for Congress to ban types of guns that are in “common use.” If bump stocks are allowed to come back, it’s likely that this court will rule that any future attempts to ban them violates the standard they invented in Bruen.

A decision reinstating bump stocks would show, once again, how violently out of step the conservatives on the Supreme Court are with the rest of the country they rule over. Remember, bump stocks are a gun ban that Donald freaking Trump endorsed. If the court is to the right of Trump on violence, I just don’t know how the republic survives that. Indeed, for future victims of mass shootings, the Supreme Court’s decisions are not survivable.

We have six unelected conservative appointees who seem hell-bent on turning our streets, movie theaters, and music festivals into shooting galleries. I do not know how many more people have to die before the conservatives stop acting like there is a constitutional requirement for gun deaths, but I fear there is no number. As long as conservatives hold power, we will have a mass shooting epidemic.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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