SCOTUS STRIKES DOWN ATF BUMP STOCK RULE
INTRODUCTORY 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. A bump-stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ . . . Because I, like Congress, call that a machinegun, I respectfully dissent.” ~ A sarcastic, impudent, inane, and irrelevant quotation from Associate Justice Sonia Sotomayor, who penned the Dissenting Opinion in Cargill vs. Garland. The New York Times cited this on June 14, 2024, the day the U.S. Supreme Court published its decision.
A Duck is a Duck that quacks and quacks, and a horse is a horse, of course of course.
But, although coots, grebes, and loons are all waterfowl that have some of the characteristics of ducks, they aren’t ducks. And, although mules and donkeys may have characteristics of horses and are related to horses, they aren’t horses. And there are nonvenomous snakes that “mimic” venomous snakes. But the one is not the other. See, e.g., the article in wildlifesos.
And semiautomatic rifles accessorized with some features found on selective fire assault rifles aren’t assault rifles notwithstanding that some people will treat them like assault rifles anyway. They will invent a name. They will call them “assault weapons” since the name carries emotional weight, or they will use that expression interchangeably with ‘assault rifle’—because “assault weapons” mimic “assault rifles” and how many members of the public would know the difference anyway?
A semiautomatic rifle accessorized with a “bump stock” may mimic a machinegun but it remains a semiautomatic rifle, not a machinegun, notwithstanding. But wait a minute.
Doesn’t a device that increases the rate of fire of a semiautomatic rifle to “mimic” a machine gun change the nature of it so that, for all intents and purposes, the semiautomatic rifle, so reconfigured, is legally” a machine gun?
After all, increasing the rate of fire of a semiautomatic rifle is that aspect of a transformed semiautomatic rifle that changes its essential nature of it so that it becomes a machine gun—Right?
In other words that is what makes a Duck a Duck at least according to the Liberal wing of the U.S. Supreme Court.
But taking that assumption as self-evident true isn’t sound in law or logic.
On the contrary, what is empirically true and legally sound is this:
Increasing the rate of fire of a rifle with a “bump stock” doesn’t change the nature of the rifle.
See this simple even simplistic narrative from Northeastern Global News that nonetheless aptly demonstrates the idiocy of calling a bump stock a machine gun.
The seditious New York Times, likely, unwittingly, acknowledges the truth:
“The bump stock allows a weapon to fire at nearly the rate of a machine gun without technically converting it to a fully automatic firearm.” [emphasis our own].
Well, technically then, a semiautomatic rifle accessorized with a bump stock isn’t legally a machine gun. Right? Right!
But even with true machine guns, the rate of fire ranges dramatically among them. Compare, e.g., the rate of fire of an M-16 assault rifle to an M134 Minigun.
An old model, originally patented Gatling gun has a high rate of fire but it isn’t a machine gun. But, it isn’t a machine gun. See the article in gatdaily.
“By law, a Gatling gun is not an NFA regulated weapon. You can order one and transfer it through your normal FFL; no SOT or tax stamp is necessary. Tippman makes Gatling guns in 9mm and .22LR, and they are considered semi-auto firearms. The crank requires the user to operate movement to fire, and a machine gun, by law, requires a trigger that must be continually pressed to fire. Yet, Gatling guns were called machine guns back in their day. They certainly have the rate of fire of a machine gun.”
So, then, here’s a question for astute readers: When does a semiautomatic rifle truly “become” a “machine gun?”
THE ANSWER:
It’s simple: When a semiautomatic rifle is “legally” converted into a machine gun. Okay. Fine. But this raises a thorny question:
What CONSTITUTES a “conversion” (transformation (?), say, or a transmutation (?), or transmogrification (?) of a semiautomatic rifle such that—IT IS NOW LEGALLY A MACHINE GUN?
Ah, that’s the rub because Congress only defined what a machine gun IS, and NOT what constitutes a change in a semiautomatic rifle or any firearm for that matter sufficient for it to BE CONSIDERED or CONSTRUED “legally”—a machine gun.
Wouldn’t the statutory definition of ‘machine gun’ need to be amended to point to the type of conversions that satisfy calling the non-machine gun a machine gun?
But, on further thought, is it necessary for Congress to be required to systematically lay out the nature of the changes necessary for a semiautomatic rifle’s nature—its essence—to be changed so that legally it is a machine gun? Is not the answer already implied in the definition of a machine gun? Let’s see.
The Federal Statutory definition of ‘machine gun’ is found in the Internal Revenue Code Section of the United States Code.
Under 26 USCS § 5845——
The term ‘machinegun’ means 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 term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
This legal definition of ‘machine gun’ is plain, succinct, categorical, coherent, and unequivocal.
The operative phrase, here, is “single function of the trigger.” Note: Congress never changed the definition of ‘machine gun’ since first enacting the statute, which became effective on November 1, 1968—almost fifty-six years ago.
Does not that phrase explain the essence of what makes a weapon a machine gun? If so, Congress need not expand further on it to discuss whether this or that modification of a semiautomatic rifle suffices to transform its essence from a semiautomatic weapon into a machine gun.
It’s important because machine guns fall under the purview of the National Firearms Act of 1934 (NFA). Semiautomatic rifles do not.*
But——
Why should this be of pressing concern to Americans who have semiautomatic rifles? It is of concern because of this ruling of the ATF:
On December 18, 2018, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger. [Note: the phrase ‘single pull of the trigger,’ made to appear that bump stock operation coheres with the Statutory Definition of a machinegun, but ‘a single pull of the trigger’ is not in the statutory definition. The operative phrase is ‘a single function of the trigger.’]
Current possessors of bump-stock-type devices must divest themselves of possession as of the effective date of the final rule (March 26, 2019).
One option is to destroy the device, and the final rule identifies possible methods of destruction, to include completely melting, shredding, or crushing the device. Any method of destruction must render the device incapable of being readily restored to function.
Current possessors also have the option to abandon bump-stock-type devices at the nearest ATF office. ATF advises that it is best to make an appointment beforehand with the nearest ATF office.
An Administrative Agency (ATF), comprising nonelected Bureaucrats—NOT ELECTED MEMBERS OF CONGRESS—outlawed “Bump Stocks.” Unsurprisingly, this angered more than a few Americans. One of them was Michael Cargill, an Austin Texas gun shop owner. See the article in Texas Tribune.
Assiduously mindful of the law, and not under any disability that would prohibit him from possessing firearms, Cargill dutifully surrendered his two bump stocks to the ATF and then filed suit against the agency.
Plaintiff Cargill filed his complaint in Federal District Court on March 25, 2019. In support of his petition for injunctive relief, Cargill argued, one, that the ATF lacked legal authority to promulgate a rule banning bump stocks under the Administrative Procedures Act; two, that, in promulgating the Rule, the ATF violated the separation of powers doctrine by engaging in a legislative function—a power that only belongs to Congress; and three, that the Rule promulgated is inconsistent with the statutory meaning of ‘machine gun.’
The Federal District Court dismissed all counts on November 30, 2020. Cargill appealed the adverse decision to the U.S. Court of Appeals for the Fifth Circuit. The Circuit Judge affirmed the decision of the lower District Court on all counts, on December 14, 2021. Cargill didn’t give up. He requested a hearing of the full complement of Judges (en banc) which was granted on June 23, 2022. The Fifth Circuit granted Cargill’s Petition, reversing the lower District Court’s ruling and its own initial ruling that favored ATF.
As an aside, the reader might reflect on a couple of interesting facets:
First, of no real surprise, Higginson was one of the three Fifth Circuit Judges who dissented from the decision of the Circuit Court Majority. But he also penned the Dissenting opinion in the en banc case.
Second, the ATF bump stock ruling came on Trump’s watch as U.S. President. Why did he take this stance as an avowed supporter of the Second Amendment? He did so less because of massive public pressure and less because of the instigation of a seditious Press, harping on the Las Vegas shooting incident, but because Wayne LaPierre, then Executive Vice President of NRA had betrayed its members.
An NBC News Report that came out, not years ago, but oddly only recently, on June 14, 2024, perhaps as an ostensible assist to Biden, who is failing miserably at the Polls and in every other conceivable way, and an oblique attack on both Trump and on the Conservative wing of the Supreme Court, particularly Justice Thomas, who penned the Majority opinion in Cargill.
NBC News said,
Former President Donald Trump didn't really want to ban bump stocks. When he did, he knew the Supreme Court was likely to overturn his action.
In a 6-3 decision Friday, that's exactly what the justices did.
The ruling revealed Trump's true feelings on the issue after a seven-year political drama, as he accepted the court reversing him, with his spokesperson saying that Americans should respect the decision.
It is possible that the Supreme Court — at a lower level but in similar fashion to its decision to overturn abortion rights — will unleash a backlash that helps President Joe Biden and hurts Trump in their November rematch.
But for the time being, Trump's strategy for sidestepping a lasting response to the 2017 Las Vegas mass shooting appears to have played to plan.
In the immediate aftermath of that massacre, which claimed 58 lives and resulted in hundreds of injuries, Trump found himself faced with a thorny political dilemma.
Shocked and outraged by the murders, roughly 4 in 5 Americans said that the government should cut off access to bump stocks, the style of shoulder-pad device that allowed the killer, Stephen Paddock, to fire a semiautomatic rifle at the speed of a fully automatic weapon. Democrats, then in the minority in both chambers, demanded congressional action, and some Republican lawmakers agreed with them.
Trump was faced with an unpalatable choice: do nothing and alienate mainstream voters or push Congress to legislate a ban, which would infuriate some gun-rights voters in the GOP's base and highlight divisions within his own party. . . .
Taking a cue from the National Rifle Association, Trump used his executive authority to write a Bureau of Alcohol Tobacco Firearms and Explosives regulation banning bump stocks.
‘I went with them,’ Trump said of the NRA in a 2023 interview on CNN.
Like him, the gun lobby's biggest player wanted to avoid both a new firearm-control law and the perception of inaction in the face of the Las Vegas massacre. It would be harder to repeal a law than roll back a regulation, and the legislative process is messy enough that a new law might have ended up including other restrictions on firearms.
Top executives at the NRA said the ATF should look at whether bump stocks conformed to federal law.
‘The NRA believes that devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations,’ Wayne LaPierre and Chris Cox, then of the NRA, said in a statement at the time, stopping short of explicitly concluding that bump stocks in fact do just that.’
It was exactly that language that Justice Clarence Thomas homed in on in writing Friday's majority opinion. . . .
Trump followed the gun lobby's lead in relying on the court to ensure that shooters have access to bump stocks. It took seven years for that plan to come together. But it did.”
Had Trump served in the White House for a second term, as he rightfully should have, he would not have authorized the DOJ-ATF to take the case up to the High Court because he already had the decision of the Fifth Circuit, en banc.
Yet, ironically, a U.S. Supreme is one Court decision better because this Court decision works in the favor of the entire Nation, reconciling the squabbling among the Circuits about whether a “bump stock” is or is not a machine gun.
The DOJ-ATF under Joe Biden now had to sweat as Petitioner in a case they had lost when the full complement of Judges in the Fifth Circuit found for the Plaintiff Cargill.
The DOJ-ATF filed its Writ of Certiorari, and the U.S. Supreme Court granted the Writ on November 3, 2023.
The case was argued on February 14, 2024, and decided in favor of Cargill on June 14, 2024, affirming the decision of the U.S. Court of Appeals for the Fifth Circuit.
The sole issue in the case concerns whether a bump stock is a machine gun as defined under the Federal Statute.
Justice Thomas, writing for the Majority, said,
“We granted certiorari, 601 U. S. ___ (2023), to address a split among the Courts of Appeals regarding whether bump stocks meet §5845(b)’s definition of ‘machinegun.’”
That in a nutshell, is the issue that the High Court wrestled with in Cargill vs. Garland.
BUT, ONCE AGAIN, AND MORE IMPORTANTLY, THAT IS THE ONLY ISSUE, contrary to what the Liberal Wing of the Court and the seditious newspapers like the Washington Post and the New York Times may think.
The facts of the case are not in dispute.
The decision turns solely on a matter of law, namely the definition of ‘machine gun’ as defined by Congress.
A consideration of that definition was the High Court’s starting point and ending point of resolution of the case.
IS A BUMP STOCK A MACHINE GUN?
The Conservative wing majority answered with a definitive, “no.” Contrariwise, the Liberal wing minority answered with a definitive, “yes.”
The Conservative wing ruled that——
A semiautomatic rifle accessorized with a bump stock does not convert that rifle into a machine gun. Swapping out a stationary rifle stock for a bump stock may, at best, simulate a machine gun, but in operation, that semiautomatic rifle doesn’t function like a true machine gun. Hence it isn’t a machine gun. It remains a semiautomatic rifle. The definition is singularly important and crucial to resolution of the sole issue in the case.
Semiautomatic rifles accessorized with bump stocks do not convert or transform those rifles into machine guns. And bump stocks in and of themselves are not machine guns.
Therefore, neither semiautomatic rifles accessorized with bump stocks nor bump stocks alone fall under the purview of the National Firearms Act.
The reasoning of the Majority and the inference drawn from that reasoning is sound, coherent, and unequivocal. The ATF Rule is inconsistent with the plain meaning of Congressional Statute and must therefore be struck down.
The Liberal wing, true to form, demurred, arguing——
“Bump Stocks” are machine guns, and that semiautomatic weapons accessorized with them are machine guns. Thus, both fall under the purview of the NFA. This conclusion is in contradistinction to the finding of the Conservative wing majority, point for point.
Unlike the Liberal wing Dissenters, the Conservative wing looked at the Congressional Statute and abided by the plain meaning of the Statute.
The Conservative wing Justices found the Congressional language of the Statute defining ‘machine gun,’ concise, precise, categorical and unequivocal—unambiguous.
Where, as here, the language of a statute is plain, an administrative agency does not have wiggle room to maneuver around it, crafting a rule that defies the import of it. The High Court warns agencies not to transgress this.
Agency transgression unlawfully invades the province of Congress (The Legislative Branch) by the Executive Branch. The Legislative Branch makes the law. That is an Article I task. The salient task of the Executive Branch, under Article II, is to execute those laws that Congress (all of whom are elected by the people) enacts.
Administrative agencies (all of which are part of the Executive Branch) comprise unelected bureaucrats who tend to go their own way, like ATF. The Conservative wing of the High Court frowns on this. It should.
But Executive Branch usurpation of the functions of Congress also invades the purview of the Judiciary, the U.S. Supreme Court whose singular power and authority is outlined in Article III of the Constitution, and the seminal case Marbury vs. Madison, which established, in 1803, the Doctrine of Judicial Review, a fact never contested. Only the Third Branch of Government has the ultimate authority to say “what the law is.”
The judge-made canon the Supreme Court uses against wayward agencies that promulgate transgressive illegal and unconstitutional rules that transcend the import of a Congressional Statute is referred to as the “canon of narrow construction” of statutes. The legal word for this canon is ‘Lenity.’
The Conservative wing abides by this canon of “narrow construction of statutes” (“Lenity”), where for example the language of a statute is ambiguous. How would this apply in the case at bar?
Suppose the Majority found the Statutory definition of ‘machine gun’ to be ambiguous. In that event, the canon or principle of Lenity would require the Court to find for the aggrieved Party, Cargill, that a bump stock is not a machine gun and a semiautomatic rifle accessorized with a bump stock does not convert a semiautomatic rifle into a machine gun.
The Liberal wing does not abide by this canon to rein in injurious, unconstitutional agency rules.
High Court application of Lenity operates to rein in the attempts of rogue agencies to justify the crafting of expansive rules beyond the rule-making authority they have by claiming that a Congressional statute is ambiguous.
The rogue agency, ATF, claims ambiguity of statutory language. It then uses ambiguity to engage in the act of legislating—an activity beyond the authority of the Executive Branch of Government. And, the Liberal Wing of the U.S. Supreme Court enables this unlawful behavior because it sympathizes with the agenda to chip away at civilian possession of firearms.
Since administrative agencies fall within the Executive Branch, these agencies do not have Article I authority because the President has no Article I powers or authority. But as we see Presidents often use agencies as quasi-legislative instruments to maneuver around Congress. They illegally piggyback on Congressional Statute NOT to make operational rules to effectuate Congressional intent which they are supposed to do, but, instead, to craft operational rules that supersede Congressional intent in pursuit of unconstitutional aims and objectives.
Such ulterior aims and objectives, contrary to Congressional intent as manifested in the language of a statute have no place in our Free Constitutional Republic.
The Administrative State doesn’t care. It goes, blithely ignoring the will of the people, reflected in Congress, the people’s elected representatives.
The Cargill case should have been decided 9-0, not a 6-3 decision.
This didn’t happen because the Activist Liberal wing enables unconstitutional agency rule-making when it is in sympathy with the agenda and aims of those agencies, as is the case here.
The intention to place personal predilections over judicial responsibilities is what turns these Liberal wing Justices into injurious Activists—the robe they wear—instead of Judicious Jurists.
FURTHER REMARKS
Although the holding of the U.S. Supreme Court in Cargill redresses a massive wrong, it is easy to lose sight of a couple of legal matters that Plaintiff Cargill asked to be taken up by the District Court and then by the Fifth Circuit:
Did the ATF overstep its authority by intruding on the Article I authority of Congress by legislating and, in so doing, violate the separation of powers between the Executive and Legislative Branches of Government?
While these issues may not be considered important to the sanctity of a Free Constitutional Government and the sovereignty of the American people over Government in the short term, they are problems in the long term.
Agency transgression of the legislative function unlawfully invades the province of Congress (The Legislative Branch) by the Executive Branch. The Legislative Branch makes the law. That is an Article I task. The salient task of the Executive Branch, under Article II, is to execute those laws that Congress (all of whom are elected by the people) enacts.
Administrative agencies (all of which are part of the Executive Branch) comprise unelected bureaucrats who tend to go their own way, like ATF. The Conservative wing of the High Court frowns on this. It should.
As mentioned, supra, the judge-made canon the Supreme Court uses against wayward agencies that promulgate transgressive illegal and unconstitutional rules that transcend the import of Congressional Statute is referred to as the “canon of narrow construction” of statutes: ‘Lenity.’
High Court application of Lenity operates to rein in the attempts of rogue agencies to justify the crafting of expansive rules beyond the rule-making authority they have. Such transgressive rules serve an agenda.
The rogue agency, ATF, claims ambiguity of statutory language. It then uses ambiguity to engage in the act of legislating—an activity beyond the authority of the Executive Branch of Government.
Since administrative agencies fall within the Executive Branch, these agencies do not have Article I authority because the President has no Article I powers or authority.
But as we see, Presidents often use agencies as quasi-legislative instruments to maneuver illegally around Congress.
They illegally piggyback on Congressional Statute not to make operational rules to effectuate Congressional intent which they are supposed to do, but, instead, to craft operational rules that supersede Congressional intent in pursuit of unconstitutional aims and objectives.
The Liberal Wing of the High Court does not deter illegal agency action when that action, although antithetical to the Doctrine of the Separation of Powers coheres with their socio-political belief system. That is what makes them Political Activists instead of Jurists.
One need only consider the damage that Merrick Garland has done to this Country as a lackey of the Biden Administration as head of the DOJ, and of the shadowy, sinister forces that the Administration is beholden to. Imagine the more extensive and long-standing damage that Garland could have done were he sitting on the U.S. Supreme Court. And, it is within the realm of possibility that Garland may get his chance if Biden or some other Democrat Party stooge wins the U.S. Presidency this November 2024.
The decision in Cargill would have been the reverse of what we have. A Liberal-wing majority would chip away at Heller, McDonald, and Bruen. The Court would consider taking up Second Amendment cases and Administrative Law cases just to destroy the right of the people to keep and bear arms.
This fact is decisive on whether a weapon is readily available to Americans not under disability, i.e., not subject to disqualification from the keeping and bearing of firearms, under State or Federal Law.
A semiautomatic rifle accessorized with a bump stock does not convert that rifle into a machine gun.
Swapping out a stationary rifle stock for a bump stock may, at best, simulate a machine gun, but in operation, that semiautomatic rifle doesn’t function like a true machine gun. Hence it isn’t a machine gun. It remains a semiautomatic rifle. The definition is singularly crucial to the resolution of the sole issue in the case.
What is so difficult about it? Nothing, really, except that activist Justices on the U.S. Supreme Court, and Judges on both lower State and Federal Courts, tend to render their decisions and ground their reasoning on personal predilection, on ideological bent, and in the furtherance of a socio-political agenda. That goal and the means to attain it, i.e., the agenda, are directed to the confiscation of most civilian firearms and tight regulation and registration of the few remaining in the hands of the public.
This is irresponsible and unconscionable. Anti-Second Amendment Justices, Judges, Government officials, and members of the public who scoff at and rebuff the fundamental and unalienable God-given right to armed self-defense demonstrate naked contempt instead of deference for the sanctity of our Constitution and for our Nation’s laws. All of them pervert the very institution whose purpose is to give efficacy to the Constitution as the Founders intended, and to the plain meaning of the Laws of Congress, as enacted.
They perfunctorily and arrogantly dismiss over two centuries of definitive well-honed American jurisprudence, and exhibit a lack of judicial restraint. None of this troubles them, but it should.
This deliberate, concerted effort to defy our Constitution and Laws bespeaks scarcely disguised hatred toward or blithe indifference to our most sacred right: the right of the people to keep and bear arms to protect self and family from predatory man, predatory beast, or the predatory man-beast of Government.
Fortunately, the Conservative wing of the High Court does what it can to keep the Liberal wing activist Justices on the Court and in the myriad Federal and State Courts throughout the Land, in check. It is a formidable task.
The Conservative wing of the High Court operated conspicuously consciously, and meticulously to cohere to their duties under the Constitution. The liberal wing unsurprisingly went off on a tangent.
Penning the Majority Opinion, Justice Thomas laid out cogently, succinctly, and unerringly, the sole issue at bar and the holding of the Court. He said, at the outset,
“Congress has long restricted access to ‘machinegun[s],’ a category of firearms defined by the ability to ‘shoot, automatically more than one shot . . . by a single function of the trigger.’ 26 U. S. C. §5845(b); see also 18 U. S. C. §922(o). Semiautomatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns. This case asks whether a bump stock—an accessory for a semiautomatic rifle that allows the shooter to rapidly reengage the trigger (and therefore achieve a high rate of fire)—converts the rifle into a ‘machinegun.’ We hold that it does not and therefore affirm.”
Justice Thomas then proceeded to lay out clearly, comprehensively, and cogently why a bump stock is not a machine gun and why a semiautomatic rifle does not become a machine gun when that rifle is accessorized with a bump stock.
He writes, in pertinent part,
Shooters have devised techniques for firing semiautomatic firearms at rates approaching those of some machineguns. One technique is called bump firing. A shooter who bump fires a rifle uses the firearm’s recoil to help rapidly manipulate the trigger. The shooter allows the recoil from one shot to push the whole firearm backward. As the rifle slides back and away from the shooter’s stationary trigger finger, the trigger is released and reset for the next shot. Simultaneously, the shooter uses his nontrigger hand to maintain forward pressure on the rifle’s front grip. The forward pressure counteracts the recoil and causes the firearm (and thus the trigger) to move forward and ‘bump’ into the shooter’s trigger finger. This bump reengages the trigger and causes another shot to fire, and so on.
Bump firing is a balancing act. The shooter must maintain enough forward pressure to ensure that he will bump the trigger with sufficient force to engage it. But, if the shooter applies too much forward pressure, the rifle will not slide back far enough to allow the trigger to reset. The right balance produces a reciprocating motion that permits the shooter to repeatedly engage and release the trigger in rapid succession.
Although bump firing does not require any additional equipment, there are accessories designed to make the technique easier. A ‘bump stock’ is one such accessory. It replaces a semiautomatic rifle’s stock (the back part of the rifle that rests against the shooter’s shoulder) with a plastic casing that allows every other part of the rifle to slide back and forth. This casing helps manage the back-and-forth motion required for bump firing. A bump stock also has a ledge to keep the shooter’s trigger finger stationary. A bump stock does not alter the basic mechanics of bump firing. As with any semiautomatic firearm, the trigger still must be released and reengaged to fire each additional shot.”
The reader should note Justice Thomas’ recitation is matter-of-fact, complete, and objective, without personal embellishment.
He acknowledges at the outset that bump stocks, like other devices, allow “for firing semiautomatic firearms at rates approaching those of some machineguns semiautomatic rifle,” knowing that rate of fire is the centerpiece of the dissenting Justices argument against bump stocks and semiautomatic rifles accessorized with them. However, the rate of fire is not relevant to the legal issue here.
We must reiterate that: The “Rate of Fire” is not a relevant or legitimate legal issue in Cargill. It has nothing to do with the issue of statutory construction.
But the Liberal wing minority insists on making “Rate of Fire” the centerpiece of their argument that bump stocks and rifles accessorized with them are machine guns even if it tends to skirt gingerly around the issue.
What is relevant and dispositive of the issue is found in this portion of the Conservative wing Majority Opinion:
“A bump stock also has a ledge to keep the shooter’s trigger finger stationary. A bump stock does not alter the basic mechanics of bump firing. As with any semiautomatic firearm, the trigger still must be released and reengaged to fire each additional shot.” [emphasis our own].
The New York Times, albeit for ulterior purposes, provides a decent simulation of a bump stock in operation, in an article updated on June 14, 2024, when the Cargill case came out. But, it doesn’t help to make a legal case for inferring bump stocks are machine guns. Rather, it serves to support the holding of the High Court, that bump stocks are not machine guns.
The key to the Court’s ruling is consistent with the key phrase in the Statute’s definition of a ‘machine gun’:
“Single Function of The Trigger.” There is nothing vague or ambiguous about this, yet the Liberal wing of the High Court would make it so.
The importance of this phrase in the definition cannot be overstated The U.S. Court of Appeals in its en banc decision had much to say about this and the Conservative wing of the U.S. Supreme Court was obviously much impressed by the cogency and comprehensiveness of that Court of Appeal’s Opinion and incorporated much of that reasoning in the High Court’s own Opinion.
We cite that portion of the Fifth Circuit Court’s opinion at length below:
[Cargill v. Garland, 67 F.4th 447 (5th Cir. 2023)]
The first phrase we consider is "by a single function of the trigger." At the time the statute was passed, "function" meant "action." Webster's New International Dictionary 1019 (2d ed. 1934); see Guedes, 920 F.3d at 43 (Henderson, J., concurring in part and dissenting in part); Aposhian, 989 F.3d at 895 (Tymkovich, C.J., dissenting). Thus, the relevant question is whether a semi-automatic rifle equipped with a non-mechanical bump stock fires more than one shot each time the trigger "acts."
It does not. As illustrated above, a semi-automatic weapon utilizes a simple mechanical process: the trigger disengages the hammer from the sear, the hammer strikes the firing pin, the bullet fires, and the recoil pushes the hammer against the disconnector, which resets the trigger. This process happens every single time one bullet is fired. To be sure, a non-mechanical bump stock increases the rate at which the process occurs. But the fact remains that only one bullet is fired each time the shooter pulls the trigger.
The Government contends that "single function of the trigger" means "a single pull of the trigger and analogous movements." 83 Fed. Reg. at 66553. That is, according to the Government, "function" means "pull." But that argument fails on its face because a shooter still pulls the trigger of a semi-automatic weapon equipped with a non-mechanical bump stock each time he or she fires a bullet. Without a bump stock, the trigger activates because the shooter flexes his or her finger; with a bump stock, the trigger activates because the recoil of the previous shot re-engages the trigger and the shooter's maintained force on the gun's forebody bumps the trigger against the shooter's finger. This is a distinction without a difference—the end result in both cases is that the trigger is pulled. See Guedes, 920 F.3d at 48 (Henderson, J., concurring in part and dissenting in part) ("A semiautomatic rifle shoots a single round per pull of the trigger and the bump stock changes only how the pull is accomplished."); Gun Owners of America, 992 F.3d at 469-73, vacated, 2 F.4th 576. Even if "single function" meant "single pull," the definition would still not include a non-mechanical bump stock. Moreover, even though pulling the trigger can sometimes begin the bump firing sequence, the process is more typically begun by pushing forward on the fore-body of the firearm.
For several of our sister circuits, however, the plain language is not so plain. They reason that single function of the trigger "could mean 'a single pull of the trigger from the perspective of the shooter.'" Guedes, 920 F.3d at 29; see also Gun Owners of America, 19 F.4th at 905 (White, J., in support of affirmance). Considering the definition of "function," one court understood the issue as such: "[T]hat definition begs the question of whether 'function' requires our focus upon the movement of the trigger, or the movement of the trigger finger. The statute is silent in this regard." Aposhian, 958 F.3d at 986. According to that logic, for a semi-automatic rifle equipped with a non-mechanical bump stock, the act of pulling the trigger—which begins the bump firing sequence—is a single pull for purposes of the Gun Control Act and National Firearms Act.
The problem with that interpretation is that it is based on words that do not exist in the statute. The statute "uses 'single function of the trigger,' not single function of the shooter's trigger finger." Guedes, 920 F.3d at 48 (Henderson, J., concurring in part and dissenting in part); see also Aposhian, 989 F.3d at 895 (Tymkovich, C.J., dissenting) ("The statute speaks only to how the trigger acts, making no mention of the shooter."). The Navy-Marine Corps Court of Appeals likewise refused to read words into the statute:The best read implies that the shooter initiates the trigger function by some action, such as pullingthe trigger—or it could be by just pushing a button—and it is the follow-on action where the trigger acts out its mechanical design or purpose that speaks to the "function of the trigger." The statute does not say "by a single function of the trigger finger" nor does it say "by a single pull of the trigger in addition to external pressure from the shooter's non-firing hand." . . . . Had Congress wanted to use the phrase "by a single pull of the trigger" for machine guns, it could have. But it did not.
We agree. The statutory definition of machinegun utilizes a grammatical construction that ties the definition to the movement of the trigger itself, and not the movement of a trigger finger. Nor do we rely on grammar alone. Context firmly corroborates what grammar initially suggests by demonstrating that Congress knew how to write a definition that is keyed to the movement of the trigger finger if it wanted to. But it did not. The Government offers nothing to overcome this plain reading, so that we are obliged to conclude that the statutory definition of machinegun unambiguously turns on the movement of the trigger and not a trigger finger.
Grammar rejects a reading based on the shooter's perspective. Each component of the statutory definition supports the mechanical perspective, not a shooter's perspective. Again, the definition reads as follows: "[M]achinegun means . . . any weapon which shoots . . . automatically more than one shot . . . by a single function of the trigger." 26 U.S.C. § 5845(b). The subject of the sentence, of course, is machinegun. The linking verb means connects the subject to the subject complement—weapon. Next, the adjectival phrase which shoots modifies weapon. The adverbial phrase automatically more than one shot then modifies shoots. Finally, two prepositional phrases follow. The first, by a single function, modifies the adverbial phrase. The second, of the trigger, modifies the first prepositional phrase. See also Guedes, 920 F.3d at 44 n.13 (Henderson, J., concurring in part and dissenting in part) (diagramming the statutory definition).
The first thing to note is that the ultimate subject is machinegun, and the subject complement is weapon. In other words, a machinegun is defined by reference to what kind of weapon it is. But identifying the subject of the sentence is only our first step. We next look, second, to the fact that the term weapon is defined by how it shoots. So, again, the definition refers to the device being made to shoot, not the person or thing doing the shooting. Third, the manner of shooting must be automatic. Fourth—and critically—the prepositional phrases define the firing process's requirements from a mechanical perspective. The process must occur by a single function, and the single act must be by the trigger. In short, there is no mention of a shooter. The grammatical structure continuously points the reader back to the mechanics of the firearm. The statute does not care what human input is required to activate the trigger—it cares only whether more than one shot is fired each time the trigger acts.
We do not stop with the grammar. With statutes, "[c]ontext is a primary determinant of meaning. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). So, we look next to context for further clues. And context confirms that the statute must be read from the mechanical perspective. Specifically, context tells us that Congress knew how to write a definition that explicitly turns on the action of a shooter rather than the action of a trigger, but chose not to do so here. Immediately following the definition of machinegun provided in 26 U.S.C. § 5845(b), Congress defined the term "rifle" to mean a weapon designed "to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger." § 5845(c) (emphasis added). The statute next defines "shotgun" to mean a weapon designed "to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger." Id. § 5845(d) (emphases added). "[W]here the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea." Reading Law at 170.
To summarize, the definition of machinegun must turn on the action (or "function") of the trigger because no other actor is mentioned or implied. This conclusion is only strengthened by the fact that other definitions within the same statutory provision explicitly turn on the action of a shooter, showing that Congress knew how to write a definition that proceeds from a shooter's perspective, rather than a mechanical one, if it had wanted to. The notion that the definition turns onthe action of an unnamed shooter is inconsistent with both the grammatical and statutory contexts.
The Government says that this straightforward interpretation defies common sense. It would not have been prudent for Congress to "zero[] in on the mechanistic movement of the trigger," the Government says, because the problem sought to be remedied was "the ability to drastically increase a weapon's rate of fire." Aposhian v. Barr, 374 F. Supp. 3d 1145, 1152 (D. Utah 2019)). Perhaps Congress's choice of words was prudent, or perhaps it was not. That is not for us to decide. But the Government's objection only accentuates the fact that Congress did not use words describing the shooter's perspective or the weapon's rate of fire. See Alkazahg, 81 M.J. at 781 ("Congress could have suggested that a shooter-focused approach or even a rate-of-fire approach was the way to read the statute by enacting those words. Even the term 'machine gun' suggests a mechanical approach where the shooter interaction is extremely limited."). Instead, it made up an entirely new phrase—by a single function of the trigger—that specifically pertains to the mechanics of a firearm. Prudent or not, Congress defined the term "machinegun" by reference to the trigger's mechanics. We are bound to apply that definition as written
Even if a non-mechanical bump stock caused a semi-automatic rifle to operate by a single function of the trigger, the rifle would still need to operate automatically in order to be a machinegun. All generally agree that here, automatically means "self-acting." Oxford English Dictionary at 574 ("[s]elf-acting under conditions fixed for it, going of itself"); see also Cargill, 20 F.4th at 1012; Guedes, 920 F.3d at 30; id. at 43 (Henderson, J. concurring in part and dissenting in part); Aposhian, 958 F.3d at 986; Aposhian, 989 F.3d at 895 (Tymkovich, C.J., dissenting); Gun Owners of America, 19 F.4th at 905-06 (White, J., in support of affirmance); id. at 912-13 (Murphy, J., in opposition to affirmance). But the parties dispute whether the firing process enabled by a non-mechanical bump stock is self-acting.
It is not. As an initial matter, we must remember that the phrase "by a single function of the trigger" modifies the adverb "automatically." Thus, the condition is satisfied only if it is the trigger that causes the firearm to shoot automatically. See Guedes, 920 F.3d at 43 (Henderson, J., concurring in part and dissenting in part) ('"Automatically' cannot be read in isolation. On the contrary, it is modified—that is, limited—by the clause 'by a single function of the trigger.'"); Aposhian, 989 F.3d at 896 (Tymkovich, C.J., dissenting). That is not how a bump stock works. Bump firing does not maintain if all a shooter does is initially pull the trigger. Rather, to continue the firing after the shooter pulls the trigger, he or she must maintain manual, forward pressure on the barrel and manual, backward pressure on the trigger ledge.
The Government argues that, taken together, those actions create automatic fire. But Cargill would prevail even if that were true because those actions are not "a single function of the trigger." For example, the ATF's treatment of the Ithaca Model 37 "slam fire" shotgun confirms that bump stocks do not enable automatic fire. With the Model 37, a shooter can pull the trigger once and hold it. Then, after each pump with the shooter's non-trigger hand, a new shell is loaded and immediately discharged. According to the ATF, the Model 37 fires multiple shots by a single function of the trigger, but it does not do so automatically because the shooter must manually pump the shotgun with his non-trigger hand. See 83 Fed. Reg. at 66,534. By this same logic, a rifle equipped with a non-mechanical bump stock does not fire automatically because the shooter must manually apply forward pressure on the barrel with his or her non-trigger hand.
The Government recognizes this logic but argues that it proves too much. After all, the Government says, to operate a traditional automatic rifle, the shooter must pull and hold the trigger to fire more than one round. No one doubts that a traditional automatic weapon is a machinegun for purposes of federal law. And so it cannot be that a process is not automatic simply because it requires sustained input. See Guedes, 920 F.3d at 31; Aposhian, 958 F.3d at 987.
That argument makes the same mistake as before: it untethers "single function of the trigger" from "automatically." Restated, the statute requires that a machinegun be capable of firing automatically once the trigger performs a single function. An automatic weapon satisfies this requirement because the act of pulling and holding the trigger is one function, and that function produces more than one shot. That force must be maintained on the trigger does not change this conclusion. Stated succinctly:
[A] gun shoots automatically by a single function of the trigger as long as the shooter need only manually cause the trigger to engage in a "single" function in order to fire multiple shots . . . So a typical machine gun qualifies even though the shooter pulls the trigger and keeps it pressed down because that combined external influence still does no more than result in one action of the trigger.
Gun Owners of America, 19 F.4th at 915 (Murphy, J., in opposition to affirmance); see also Guedes, 920 F.3d at 44 (Henderson, J., concurring in part and dissenting in part) ("The statutory definition of machinegun does not include a firearm that shoots more than one round automatically by a single pull of the trigger and then some (that is, by constant forward pressure with the non-trigger hand).") (internal quotation marks omitted and emphasis omitted). As understood by the Navy-Marine Corps Court of Appeals:
It is incorrect to equate the holding of the trigger in an automatic weapon with the holding of the trigger and the forward motion in a semi-automatic weapon equipped with a bump stock. That is because the former is shooting automatically by a single function of the trigger, while the latter is relying on an additional human action beyond the mechanical self-acting and impersonal trigger function.
Alkazahg, 81 M.J. at 782-83.We reiterate that a shooter can bump fire an ordinary semi-automatic rifle even without a bump stock. But nobody, not even the Government, contends that semi-automatic rifles are machineguns. That concession damns the Government's position. As Cargill recognizes, if ordinary bump firing constituted automatic fire, the Final Rule would "convert a semiautomatic weapon into a machinegun simply by how a marksman used the weapon." That absurd result reveals the flaw in the Government's line of reasoning.
In addition to implying absurd results, the Government's position is quite telling. It would allow the use of semi-automatic rifles, which can bump fire, but prohibit the use of non-mechanical bump stocks, even though there is no mechanical difference between the two forms of gunfire. Rather, the meaningful difference is that, with a non-mechanical bump stock, bump firing is easier and can occur at a faster rate. That is a distinction Congress certainly could have addressed in the National Firearms Act and Gun Control Act. But Congress did not prohibit machineguns according to how quickly they fire. It prohibited machineguns according to the way that they fire. And semiautomatic weapons do not fire "automatically," even when equipped with a non-mechanical bump stock.
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The definition of machinegun as set forth in the Gun Control Act and National Firearms Act establishes two conditions that must obtain in order for a weapon to qualify. The weapon must operate "automatically" and "by single function of the trigger." According to the statute's unambiguous language, neither condition obtains as applied to a semi-automatic rifle equipped with a non-mechanical bump stock. The failure of either condition is sufficient to entitle Cargill to judgment.
Now Compare the Fifth Circuit Majority’s well-reasoned en banc Opinion and the well-reasoned and articulated Opinion of the Conservative Wing of the U.S. Supreme Court (recited supra) with the Minority Liberal Wing’s Dissenting opinion recited below.
Justice Sotomayor, writing for the Liberal wing of the Court, rails on the evils of machine guns. She commences her polemic with this:
On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly ‘bump’ the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.
Justice Sotomayor then proceeds with the obvious that may be of some historical interest but has no relevance to the case.
Congress has sharply restricted civilian ownership of machineguns since 1934.” . . .
Machineguns were originally developed in the 19th century as weapons of war. . . . Gangsters like Al Capone used machineguns to rob banks, ambush the police, and murder rivals.
This history lesson, meant to tug at one’s emotions, with careful use of Anti-Second Amendment slogans, has absolutely nothing to do with the legal issue at bar. But Justice Sotomayor uses this as an introduction to slither around the plain meaning of the statute to argue that, because a person’s finger remains on the trigger, the bump stock adds nothing substantive to alter the definition of ‘machine gun.’ But is that true?
Justice Sotomayor continues,
A bump stock automates and stabilizes the bump firing process. It replaces a rifle’s standard stock, which is the part held against the shoulder. . . . A bump stock, unlike a standard stock, allows the rifle’s upper assembly to slide back and forth in the stock. . . . It also typically includes a finger rest on which the shooter can place his finger while shooting, and a ‘receiver module’ that guides and regulates the weapon’s recoil. . . . To fire a semiautomatic rifle equipped with a bump stock, the shooter either pulls the trigger, . . . or slides the gun forward in the bump stock, which presses the trigger into his trigger finger, . . . . As long as the shooter keeps his trigger finger on the finger rest and maintains constant forward pressure on the rifle’s barrel or front grip, the weapon will fire continuously. A rifle equipped with a bump stock can fire at a rate between 400 and 800 rounds per minute. . . .” [citations omitted; emphasis our own].
This attempt at conflating a bump stock and trigger is obfuscation and a piece of legerdemain. It is not an accurate scientific explication of the operation of a bump stock.
Justice Sotomayor acknowledges that a bump stock is distinct from the trigger and receiver assembly. Her point is that the high rate of fire emulates machine gun fire. That fact is enough for her and Kagan and Brown-Jackson. But emulation of a machine gun is not sufficient to meet the standard under the Statutory definition of what constitutes a machine gun.
Justice Sotomayor continues with a specious explication of firearm operation, erroneously taking to task Justice Thomas’ clear use of diagrams to explain the working of a bump stock. She engages in disingenuous deflection. Justice Thomas’ explication is grounded on the expertise of firearms experts.
Justice Sotomayor makes light of this and substitutes her imprecise interpretation of the operation of a bump stock to buttress her position that the ATF was correct in treating bump stocks as machine guns.
A bump-stock-equipped semiautomatic 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. The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text. Then, shifting focus from the internal mechanism of the gun to the perspective of the shooter, the majority holds that continuous forward pressure is too much human input for bump-stock-enabled continuous fire to be ‘automatic.’” [citations omitted, emphasis our own].
Contrary to her tortuous attempt to fit the operation of a bump stock into the statutory definition of ‘machine gun,’ and despite her cheeky remarks punctuated and plastered in her Dissenting Opinion about “Ducks,” the fact remains that a “semiautomatic rifle” doesn’t “become” a “machine” gun nor does it “become” a “submachine gun” or a selective fire “assault rifle” simply because a particular device, in this instance a bump stock, happens to increase the rate of fire—a point that Thomas acknowledged and properly dismissed out-of-hand, as irrelevant to the issue at hand.
But, she insists on calling a bump stock accessorized semiautomatic rifle a machine gun—that they are both the same thing.
This is like saying an Eagle is the same thing as a Pigeon. Well, they are both Birds, granted. They belong to the same taxonomic Class, “Aves,” true, but drilling down into the nuances of each they are quite unlike each other. And, neither one is a “Duck.”
Semiautomatic weapons accessorized or not with bump stocks, and machine guns (of which there are many types as used in the armed forces) are all firearms.
But it would take substantial work to transform a semiautomatic rifle literally into a “machine gun.” Accessorizing the rifle with a bump stock may at best create a simulacrum of a machinegun, but it isn’t one, and that simulacrum is not the sort of thing the military would be interested in, anyway.
There are a couple of other approaches that can be adapted for semiautomatic rifles to simulate the operation of a machine gun, but none of them are equivalent to or even approach the manner of operation of a true machine gun. To truly mirror a machine gun, a semiautomatic rifle would require substantial modification, essentially reengineering the rifle, to duplicate not merely emulate, or simulate the operation of a machine gun.
A Forced Reset Trigger (FRT) approach or Binary Trigger approach both of which involve a modification of the trigger assembly, as we understand this, or a Bump Stock approach that doesn’t involve a modification of the trigger assembly but appears to mimic the FRT approach, all assist in increasing the rate of fire of a semiautomatic rifle. That much is true.
But the kicker here is that none of these approaches can legitimately be construed as a conversion kit of the sort that would, consistent with Statutory Definition, literally turn a semiautomatic rifle into an automatic weapon like a machine gun, submachine gun, or selective fire assault rifle such that it no longer truly is a semiautomatic rifle but has transmuted into something else markedly different.
Mimicking something does not change the nature of the thing.
Many species of Non-venomous snakes mimic venomous snakes in color or behavior. The mimicry doesn’t change the nature of what a thing is.
“Bump-stock-enabled” isn’t equivalent to the “single function of a trigger,” try as Sotomayor might to argue that bump stocks convert a semiautomatic rifle into a machine gun.
Justice Sotomayor concludes with this:
“The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.”
The argument is spurious. The definition of ‘machine gun’ isn’t ambiguous. So the Majority didn’t create anything, artificial or not.
Bump stocks are not machine guns. But, assuming arguendo, the Statutory definition of ‘machine gun’ is ambiguous, then under the canon or rule of Lenity, the Court must construe the definition narrowly, and that requires finding in favor of the aggrieved Party, Cargill.
Justice Sotomayor doesn’t even mention the canon of Lenity. She can’t. But she needs to employ it, doing so deliberately incorrectly to reach to support the inference she wants./
Justice Sotomayor and the two other Justices who joined her on the Dissenting Opinion are wrong on both legal and logical grounds in their analyses and inferences. Their arguments are specious, unsound, incoherent, and contrary to law.
They stamp their imprimatur on an ATF Rule that effectively and unlawfully operates to rewrite the Statutory definition of ‘machine gun’ and then disingenuously and arrogantly deflect, insisting that it is the Conservative wing majority that has improperly (or, in her words, “artificially” narrowed the definition to “hamstring” the Government efforts to keep machineguns from gunmen like the Las Vegas shooter.”
Justice Sotomayor’s conclusion begs the very question at issue:
Are bump stocks and bump stock accessorized semiautomatic rifles “machine guns” under the statutory definition?
No, they are not, as the Majority correctly held. And Court’s Conservative Majority did not need to rely on the canon of narrow construction (“lenity”) to make its determination because the statutory definition of ‘machine gun’ is, on its face, plain and unequivocal.
The Majority simply looked at the Statutory definition, saw it to be plain and unequivocal on its face and adhered to it to make the only rational finding it could.
The Liberal wing attempted to force a round peg in a square hole, beginning with a false assumption, grounded on an agenda—to hurt a citizen’s ability to exercise his or her fundamental right.
In that regard, we must emphasize that reference to the “Las Vegas shooter” is irrelevant. To discuss this at all belongs in a different forum—perhaps a newspaper article or an Op-Ed, but this does not belong in a legal opinion.
But to bring this matter up in a newspaper article or Op-Ed, one may well ask how it is that “the shooter” could so easily evade cameras in a Las Vegas casino, hauling up. Even if, as some newspaper reports point out, the killer, Stephen Paddock, planned his shooting spree meticulously, knowing much, perhaps, about Casino security. He could not know everything. To this day, there is incredible incompleteness to the entire incident. The public is left in the dark.
Did this shooting just happen or did it happen because someone aside from the killer himself wanted this horrific incident to happen to serve, perhaps, as a useful pretext for the crafting of just such an administrative ATF Rule that derived from and expressly because of the incident.
The Las Vegas incident served a purpose and recitation of and emphasis of it draws light on what drives her and the two other Liberal wing Justice Activists to dissent from the Majority Opinion.
The aim here is obvious: to inexorably chip away at the right of the people to keep and bear arms without which a Free Constitutional Republic cannot exist.
Tyranny in America is in the process of consolidation. A Democrat Party victory in November will see the completion of that process.
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* Of course, if Congressional Statute is facially unconstitutional, then the High Court must, on review, strike it down, regardless, because the Constitution trumps Congressional Statute where the two are in conflict.
But, where, as here, if a Statute is not Constitutionally suspect, the impact of the Statute on Americans turns on the plain meaning of its words. And a Justice who abides by the plain meaning of the law must need render a ruling that coheres with that plain meaning.
We have presumed here since the matter isn’t relevant to this essay, that the NFA is Constitutional. But is it? We leave for another day whether the NFA is consistent with the Heller decision. If not, then the NFA must be struck down. See, e.g., “Dangerous and Unusual: How an Expanding National Firearms Act Will Spell Its Own Demise,” 127 Dick. L. Rev. 273 (Fall 2022) by Oliver Krawczyk. In light of Heller, the High Court should at some point determine the Constitutionality of the NFA of 1934. What is particularly troublesome is a proposition of the Anti-Second Amendment crowd that is taken as axiomatic and is then utilized as a cudgel to chisel away at the legality of Americans’ right to possess semiautomatic weapons.
The mantra of Anti-Second Amendment proponents and zealots is that military weapons (“weapons of war”) and facsimiles of them, i.e., semiautomatic weapons should be illegal as de facto military weapons.
The problem here is that the Second Amendment embodies the precept that Americans DO HAVE a legal right to keep and bear personnel weapons of war, i.e., military weapons. Since true, the idea that NO civilian has a right to keep and bear military weapons or anything the Government deems to be like a military weapon, as axiomatic, self-evident true, is simply wrong and always has been wrong, as a matter of law. Further, since the right of the people to keep and bear arms is Natural, God-given law, the State does not have the lawful right to regulate these weapons or ban them outright anyway.
There is another problem attendant to Government unconstitutional actions that have stood for years or even decades. It is that such actions are taken as true and therefore untouchable by virtue of their longevity. That has psychological impact but not logical nor legal impact. Worse, bad law is often invoked by unscrupulous individuals and rogue governments, such as the present Biden Administration, to piggyback off of—manufacturing more bad law from the original bad law.
New York Handgun Law is a case in point. The original Sullivan Act, that created a regulatory handgun licensing regime has spawned more and more laws, infinitely more oppressive. And that has taken on a life of its own. Even when the U.S. Supreme Court has brought the guts of the Handgun Law—reliance on “Proper Cause” to a screeching halt, as facially unconstitutional, the State continues on its merry way to enact more oppressive laws in utter defiance of and contempt of the High Court and the Court’s Article III authority. This is evidence of Tyranny. The Government cannot lawfully hide in the mask of defying Fundamental right to Personal Armed Defense based on a pretext of a desire to curb “Gun violence” (political fiction) especially when that very Government does not actually curb gun violence or any other criminal violence.
It is all a mirage to blindside the Sovereign American citizen and to usurp his authority over Government, and turn the Government into the Master and the American people into its servants.
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