The lack of humanity in Clarence Thomas's bump stock decision
Last week the Supreme Court ruled that bump stocks, which modify semi-automatic rifles so they can shoot up to 800 rounds per minute and had been banned by the ATF, are legally permissable again. I think most people who aren’t committed gun-rights proponents would wonder how this decision makes any sense. How can the nation’s highest court decide our government can’t ban a tool who’s only purpose is to allow already-powerful guns to spray more bullets than your average soldier would need to fire on a battlefield?
The courts can arrive at such a decision, it turns out, by maintaining a fetish-level focus on one isolated aspect of a gun’s anatomy – the trigger – and almost completely ignoring the people on either side of a fired weapon. Clarence Thomas, who wrote the decision in Garland v. Cargill, implicitly justifies his circumscribed focus by limiting the question of the case to whether or not a bump stock literally transforms a semi-automatic rifle into an automatic rifle (which of course it does not), rather than whether a bump stock allows a semi-automatic to do what an automatic does (which of course it does)..
He can get away with this, in part, because of the way the gun regulations relevant to this case were written, so here are the facts of those laws and this case.
For years, the ATF said bump stocks were perfectly legal and did not change a semi-automatic rifle to an automatic rifle. Then, after a gunman fired more than 1,000 rounds into a Las Vegas concert crowd with semi-autos outfitted with bump stocks, killing 58 people and injuring hundreds more, the ATF changed course and banned them. The new rule “ordered owners of bump stocks either to destroy or surrender them to ATF to avoid criminal prosecution” (Cargill, “Syllabus,” pg. 1).
The ATF can’t create new bans on its own – it must do so through its interpretation of existing law. The relevant laws here are the National Firearms Act of 1934 and updates to the NFA in 1968 and 1986 [1]. The NFA was the first to limit the availability of machine guns and the first to legally define what a “machinegun” is: “any weapon which shoots, or is designed to shoot, automatically … more than one shot, without manual reloading, by a single function of the trigger.” Also covered was “any part designed and intended for use in converting a weapon into a machinegun.”
So, after the ATF ban in 2017, a man named Michael Cargill surrendered his bump stocks, then sued the ATF claiming they didn’t have the authority to institute the ban. A district court ruled against Cargill, siding with the ATF, but reversed its decision after hearing the case en banc (with all the judges on the court rather than with only some, as in Cargill’s previous “bench trial”). The SCOTUS decision, written by Thomas and signed by the other five GOP-appointed judges, upheld the district court’s decision.
It would be accurate to say that Thomas’s decision lacks humanity, in the sense that there are no humans present in his reasoning. And this makes sense, because it turns out that removing humans from the semi-auto/bump-stock/auto equation is the way to make his argument work logically. Here’s an example. Thomas says that a semi-auto outfitted with a bump stock isn’t an automatic weapon because, even with the bump stock, “the trigger still must be released and re-engaged to fire each additional shot” (Cargill, “Opinion,” pg. 3). But this is only true if we don’t consider the person pulling the trigger, because the experience of the shooter is not one of engaging, releasing, and re-engaging, but of applying continuous pressure on the trigger.
We need a quick detour to understand how bump stocks work. Any semi-automatic rifle can be “bump” fired; a bump stock just provides a convenient way you can do it that allows for more accuracy. To bump-fire, you maintain continuous backward pressure on the trigger, rely on the rifle’s recoil to drive the rifle backward (re-setting the trigger), and maintain continuous pressure with your forward hand in the opposite direction that makes the rifle jump forward, slamming the trigger into your finger and engaging it again, over and over, potentially up to hundreds of times per minute. For this to work, the rifle needs to be held in place, but with enough play that it can rock back and forth sufficiently to engage, disengage and reengage the trigger. You could do this, as Sonia Sotomayor notes in her dissent, by firing from the hip and hitching the thumb of your trigger hand through your belt loop. But with the bump stock you’re free to take better aim, since the gun isn’t attached to your hip.
So, when a person is using a bump stock, they are not “releas[ing] and reengag[ing]” their trigger finger for each shot, as Thomas suggests. In other words, they aren’t pulling their finger back, then pushing it forward, back, forward, back, etc., as they normally would when shooting a non-modified semi-auto. But the trigger itself is engaging, disengaging, reengaging with the combo of continuous backward and forward pressure and the loose stability of the bump stock. Thomas removes that finger and the the person it’s attached to, and – voila – his argument makes logical sense.
To back this up, Thomas includes several diagrams of the trigger mechanisms of semi-automatic rifles. And he does indeed prove that affixing a bump stock to the outside of a gun does not transform its internal parts (eyeroll emoji). Therefore, in his logic bump stocks can’t be banned through the statutory language currently on the books because that language focuses on the “function of the trigger” and whether something “convert[s] a weapon into a machinegun,” never explicitly mentioning fingers or people. The law, he says, “does not define a machinegun based on what type of human input engages the trigger” (“Opinion,” pg. 13), freeing Thomas, in his mind, to ignore humans almost entirely.
He also ignores the people on the receiving end of the bullets – for example, the people in the Las Vegas crowd who had more than 1,000 rounds sprayed at them for 10 minutes during a Jason Aldean concert. Those people, to the extent they had time to consider such things, likely surmised they were under attack by automatic weapons. One woman said (as reported by NPR), “‘I told my husband it's firecrackers,’ Gayle said to a local CBS affiliate. ‘He goes, “No it's not, it's machine gun or something — an automatic rifle.”’”
The experience of the Las Vegas crowd, beyond its horrifying tragedy, tells us something important about the slipperiness of Thomas’s view of the law. He is consistently identified as an originalist and a textualist, meaning that he interprets the Constitution and statutes strictly according to the common meaning of their text at the time they were written. But in Cargill, Thomas is so hyper-focused on the text of gun regulations and the technicalities of trigger functionality that he blows right past people’s common understanding of what a “machinegun” is: a gun that fires continuously if you hold down the trigger. This is what the Las Vegas crowd experienced. It is what the shooter himself experienced. But Thomas’s textualism in this opinion means only “strict attention to the text, excluding all else,” and not “people’s common understanding” of the matters under consideration. He has so thoroughly removed the human from his opinion that he says, “Nothing changes when a semiautomatic rifle is equipped with a bump stock” (“Opinion,” pg. 12). Only a textualism bereft of human experience could come to such a conclusion.
Sotomayor’s dissent serves as a good comparison. Her method of deciding whether something is a machine gun is essentially to take Thomas’s method and add people. “When I see a bird,” Sotomayor says, “that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.” She is saying that when we define something, our perceptions of it matter. This seems especially important when we are talking about tools designed to kill. Defining such tools with no regard for the effects they have on people is, at best, unrealistic and narrow.
Leaning into Thomas’s removal of the human from his reasoning, Sotomayor says,
“A machinegun does not fire itself. The important question under the statute is how a person can fire it. … 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” (“Dissent,” pg. 6).
But Sotomayor insists that no such technical pedantry is necessary to interpret the law. “This is not a hard case,” she says (pg. 6).
Referencing Thomas’s corrupted textualism, she continues:
“The majority’s ruling flies in the face of this Court’s standard tools of statutory interpretation. By casting aside the statute’s ordinary meaning both at the time of its enactment and today, the majority eviscerates Congress’s regulation of machineguns and enables gun users and manufacturers to circumvent federal law” (pg. 7).
Nevertheless, it is Thomas’s opinion that now defines the law on bump stocks. It is grossly ironic that the argument returning them to gun store shelves is missing the very thing they endanger: people.
Note [1]: When the NFA was written, the public was extremely aware of horrific crimes being committed with machine guns, most famously in the 1929 Valentine’s Day Massacre perpetrated by Al Capone’s men. But the NFA instituted a tax on machine guns (not a ban), making them prohibitively expensive for most people. It also created registration requirements that included fingerprinting, dissuading gangsters from buying them. The 1968 Gun Control Act limited who could register machine guns to only manufacturers and importers, and the 1986 Firearms Owners’ Protection Act “prohibit[ed] possession of machine guns that were not legally possessed prior to its enactment. Thus, the [FOPA] allowed newly manufactured machine guns to be available only to the U.S. government (such as the U.S. military) and law enforcement entities after May 19, 1986” (Office of the Inspector General).
Image credit: Associated Press