A Few Thoughts on Garland v. Cargill

The recent SCOTUS decision, along partisan lines, in Garland v. Cargill was both predictable and legally correct.  The ruling is based on the language of the 1934 National Firearms Act, which, in outlawing private ownership of machine guns, defined such a gun as “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.”

At issue was an initiative by the ATF to ban bump stocks in the aftermath of that asshole in Las Vegas killing 60 country music fans and wounding over 200 others in 2017 by employing the device.  Bump stocks don’t, technically, transform a semi-automatic weapon into a “machine gun” according to the specific definition of that law; they merely create fundamentally the same effect.  In other words, this case was a showdown between ontology and phenomenology or, less pretentiously, between literality and functionality.

It is not surprising that the trio of liberals on the Court argued for more restrictions on weaponry and the sextet of conservatives thought otherwise.  But it may be that those political perspectives weren’t really at the center of the justices’ respective votes.  Giving them the benefit of the doubt, we could reasonably argue that the majority simply looked at the definition of “machine gun” in the law, and the minority chose to rely on the way the term is used in common parlance.  (Both sides, of course, are slaves to semantics when it suits them, and to mind-reading when literality doesn’t achieve their desired goals.)

Bump stocks weren’t invented until the 2000s and therefore could not have been explicitly included in a law written nearly three generations earlier, but it’s reasonable to view the inclusion of bump stocks as a logical extension of that law’s intent.  Bump stocks do indeed create the effect of an automatic weapon, even though the way they achieve that end is not exactly what the 1934 law describes.  Justice Sotomayor’s dissent even invokes a familiar aphorism: “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.”

Side note: it was almost exactly three years ago when Curmie wrote about a SCOTUS case in which the fact that a law specified a definition of a term thereby made the conventional meaning of a term irrelevant.  Part of that ruling was, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.”  So, the majority is correct in legal terms… and that’s what matters.

Let me also say that headlines like the one used by the  Fox affiliate (!) in Spokane, “The gun technology used in the 2017 Las Vegas shooting was just okayed by the Supreme Court,” are technically accurate but clearly misleading, intended to titillate rather than inform.

SCOTUS didn’t say that bump stocks ought to be permissible; they determined, rather, that they were not banned by existing law, and therefore that ATF overstepped their authority.  Justice Alito makes this clear in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

Curmie notes in particular two things about what isn’t said: first, most (not all) of the news coverage of the ruling omits the fact that the ATF that sought to ban bump stocks was part of the Trump administration.  Presumably, then, the Grand Wizard of the GOP approves of the ban, or at least did nothing to stop it under his regime.  The chances his minions would let a redefinition of “machine gun” make it to the floor of either house of Congress in this election year: zero.

More importantly, take a good look at what Alito says above, Gentle Reader.  He argues that ATF exceeded its authority by, in effect, attempting to enforce a law that doesn’t exist.  But he also suggests that Congress not only could, but “need to” amend the law to include bump stocks.  That’s about as close as a conservative jurist is ever going to come to endorsing anything in the same universe as gun control.

What’s really significant, though, is that nowhere in Justice Thomas’s rambling majority opinion (did he get his degree in the Department of Redundancy Department, or what?) or in Alito’s more succinct and cogent concurrence is there any indication that there would be anything constitutionally problematic about a law that did explicitly outlaw bump stocks. 

This relates to an argument that Curmie has made several times, most comprehensively and explicitly here, that we already have limitations on private ownership of certain kinds of weapons, including, for example, nuclear submarines, surface-to-air missiles… and automatic rifles. 

So we’re left with two points.  First, that not banning weapons systems that perform the same function as what were described as “machine guns” in 1934 makes no logical sense, and failure to do so can only be ascribed as capitulation to the gun lobby at the expense of the populace.  But we all know that, just as we all know that such legislation won’t happen until the GOP starts caring more about constituents than about their campaign contributors, or until the Dems have control of the White House, a clear majority in the House, and the ability to enforce cloture in the Senate.  Not in the foreseeable future, in other words.

Second, that adjusting an existing line that separates the legal from the illegal is a fundamentally different thing than creating a line that was hitherto non-existent.  In other words, discussions about also limiting or denying access to semi-automatic weapons are absolutely legitimate, and should not be derailed simply by a blinkered interpretation of what is and is not constitutional. 

What, other than adherence to a reading of the 2^nd amendment that casually ignores the phrase “well-regulated militia,” is the argument in favor of allowing these weapons to be available to the likes of Adam Lanza, Nikolas Cruz, or Stephen Paddock?  Somehow I suspect I’ll never be satisfied with the answer to that question.