Preview of Supreme Court bump stock case [Oral argument on Wed 2/28/24]

Reason ^ | 2/27/24 | DAVID KOPEL

[CFW]

Tomorrow, February 28, the Supreme Court will hear oral argument in Garland v. Cargill; the case challenges the administrative prohibition on bump stocks imposed by the Trump and Biden administrations, via interpretation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). The Supreme Court docket is here.

I co-authored an amicus brief in the case. The brief is on behalf on 9 U.S. Senators, led by Cynthia Lummis (R-Wyo.), 10 law/history professors, and the Independence Institute (the Denver think tank where I work).

Garland v. Cargill v. is not a Second Amendment challenge. The case is about administrative law: is BATFE's new interpretation of the relevant federal statute (the National Firearms Act of 1934) correct?

Despite the procedural posture, some gun prohibition advocates have been sending frantic emails to prospective donors, warning that if Cargill prevails, all of the bump stock laws enacted by state and local governments will be overturned. This is false. Presuming that the state and local laws were enacted according to proper procedures by state legislatures or city councils, a decision in favor of Mr. Cargill would have no effect on these laws.

The right to arms appears in the case only by implication, as explained in an excellent brief by the Second Amendment Law Center and other civil rights organizations: if BATFE in Cargill can get away with an egregious misinterpretation of the National Firearms Act, then BATFE's next step could be to declare that all semiautomatic firearms are "machineguns."

There are two main issues in Cargill v. Garland: first, principles of statutory interpretation. Second, interpretation of the statute at issue. The Senators' amicus brief addresses both.

[TornadoAlley3]

Chemical? Not mechanical?

[Fury]

Thanks.

People seem moved more by what President Trump says in regards to the 2nd Amendment that what he does.

[Ransomed]

A butterfly flaps its wings, causing a chemical reaction which triggers 800 bullets to fire in a second...

Freegards

[CFW]

Gargill’s attorney needs to put emphasis on the fact that this should be an issue for Congress and not a governmental agency.

[publiusF27]

Yes, and I don't understand why people are moved by what Trump says.

And I’m going to write that out. Because we can do that with an executive order. I’m going to write the bump stock; essen- tially, write it out. So you won’t have to worry about bump stock. Shortly, that will be gone. We can focus on other things. Frankly, I don’t even know if it would be good in this bill. It’s nicer to have a separate piece of paper where it’s gone. And we’ll have that done pretty quickly. They’re working on it right now, the lawyers.

and

And don’t worry about bump stock, we’re getting rid of it, where it’ll be out. I mean, you don’t have to complicate the bill by adding another two paragraphs. We’re getting rid of it. I’ll do that myself be- cause I’m able to. Fortunately, we’re able to do that without going through Con- gress.

Authoritarian asshole. You can take the gun grabber out of New York but you can't take the grabbiness out of the grabber.

[publiusF27]

Gorsuch brings up the fact that a half million people depended upon previous interpretations that the bump stock was NOT a machine gun and the change in the rule turns them into a federal felon.

And businesses like RW Arms had a million bucks worth of inventory, relying on those previous 15 ATF determinations that they were making legal products.

Then Trump changed his mind about what the law said and those businesses had a very expensive disposal problem on their hands.

Fifth amendment? Just compensation? What do those things mean?

[publiusF27]

It is about the power of the regulatory state.

And that power has recently come from what Justice Kennedy once called "reflexive deference" to federal agencies.

Kagan is a big fan of deference to federal agency decisions, saying this in the oral arguments about Chevron deference:

... what Chevron says is now there are two possible decision-makers, there's the agency and there's the court, and what we think is that Congress would have preferred the agency to resolve this question when congressional direction has -- cannot be found because of the agency's expertise, because of the agency's experience, because the agency understands how this question fits within the statutory scheme. ...

Of course, she turned out to be talking about deference ONLY to their most recent decision, not the previous 15 times they said that bump stocka were not machine guns. Those were just mistakes. Oops. By the way, anyone who relied on those mistakes has been a felon this whole time.

[Fury]

By the way, anyone who relied on those mistakes has been a felon this whole time.

This ^

I have seen no one, media or otherwise, question President Trump about the bump stock ban. No "any regrets?", no "Would you direct ATF to review and rescind their classification of a bump stock as essentially a machine gun"? Nothing.

President Trump is right on several issues. He's wrong on bump stocks, and just stubborn enough to not admit he used administrative power - deep state power - to ban them.

[publiusF27]

One would think that the eager embrace of Trump's power grab by Biden, Kagan, Sotomayor, and Jackson would give people reason to doubt that it's a good idea.

OK, maybe two would dare think that, you and me. I wish we had company.

[Fury]

Yes, crickets. The bump stock threads are usually quiet.

I’ll predict 5-4 the ban is thrown out.

[publiusF27]

6-3, you were close.

Sotomayor had a brief footnote about the fact that ATF had issued 15 guidance letters saying that bump stocks don’t equal machine guns between 2008 and 2017. She said they found that other devices were equal to machine guns, so obviously they could have found that bump stocks were as well, they just needed Trump to come along and educate them.

Well, she didn’t really add that last part. It’s implied.

[Fury]

Thanks for the note.

I thought Barrett might squish, so was surprised.

I’m hopeful President Trump will learn from this.

[publiusF27]

I’m hopeful he won’t learn just because the lesson he might learn would be that he got tremendous praise for usurping legislative power and then, years later, when SCOTUS overturned his usurpation, there was no political price to pay.

[Fury]

Good point, thanks.