Clarence Thomas Rejects Bump Stock Ban After Praising Skill Involved In Mass Shooting
Somehow, Thomas penning a love letter to the 'balancing act' involved in drawing automatic performance from a rifle wasn't the weirdest part.
This morning, the Supreme Court struck down a Trump administration gun regulation banning “bump stocks” under its authority to ban “machine guns,” defined by statute as a weapon that shoots more than one shot “by a single function of the trigger.” 26 U.S.C. §5845(b). Bump stocks — the device used in the 2017 Las Vegas shooting that killed 60 and injured an additional 413 directly and a total of 867 all told — allow a shooter to achieve fully automatic, machine gun results from a semiautomatic weapon. Essentially, a gunman pulls the trigger once and the force of the recoil combined with the bump stock keeps the trigger moving at inhuman rapidity until the shooter chooses to disengage their trigger finger.
In an opinion penned by Clarence Thomas, the conservative majority of the Supreme Court decided that bump stocks do not fall under the power to ban machine guns because the external trigger itself still moves with each shot even if the human has only engaged the trigger once. And, perhaps as importantly, will continue shooting until the user moves their finger again.
But before we get into the statutory interpretation, Thomas threw in this:
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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.
I did not have “you’ve really got to appreciate the skill involved in mass murder” on my Supreme Court Bingo card.
What is even the point of this? The Court doesn’t need to pat the Vegas shooter on the back at bump stock speeds to establish that the majority thinks someone firing more than one shot on a single function of a trigger refers to the trigger and not the shooter’s act of pulling it.
It’s cliche at this point to say The Onion is real life, but this as close to “Supreme Court Rule Death Penalty Is ‘Totally Badass’” as it gets.
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Charitably, Thomas might have been trying to set up one of his dumber arguments later in the opinion: that a shooter with certain semiautomatic rifles could get a limited bump firing routine going with a regular stock and therefore the dissent’s reading of the statute would authorize regulation of even stock semiautomatics. Except this would involve the shooter employing affirmative human effort as opposed to letting the, for lack of a better term, “machine” handle it, which is sorta the whole point.
And, not for nothing, the practice that Thomas is praising is the “skill” that bump stock-less mass shooters try to achieve to maximize their analog slaughter just to add to the absolute ghoulishness of this interlude.
In any event, the Court’s interpretation of this statute is pedantic nonsense. It’s like walking into a sci-fi convention and saying “well ACTUALLY the Enterprise does not travel faster than light because it’s standing still while warping space around it.” Alas, Clarence Thomas will not receive the wedgie that this reasoning deserves.
Remember the whole “guns don’t kill people, people kill people” line? Well, it turns out human act of choosing to engage the trigger just isn’t all that important.
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Anyway, in case you’re wondering how much the user is engaging the trigger and whether or not this transforms a semiautomatic into a machine gun:
There are Rambo films with slower weaponry. (Hat tip to Matthew Stiegler who posted a link to this video this morning).
For his part, Sam Alito went out of his way to write a concurrence noting that the whole legislative history and intent and the common sense understanding of the terms of the statute would cover bump stocks, but also “fuck you.”
I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U.S.C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.
Certain adverbs should set off a red flag for the reader. Or some other sign of distress. “Simply” no other way is a pretty glaring signal that the writer understands that, in fact, there are other ways that they don’t want to talk about. Including looking at the text of the whole statutory regime and noting that Congress explicitly included provisions to deal with circumvention devices — like, say, a thing that makes an otherwise semiautomatic weapon perform as a machinegun.
In dissent, Justice Sotomayor out textuals the textualists:
This is not a hard case. All of the textual evidence points to the same interpretation. 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.
Burn. Thomas actually tries to spin the “maintaining forward pressure” line to say that it can’t be a machinegun if the human is doing anything as if an actual fully automatic gun just fires itself without any human “pressure.” Sotomayor displays little patience for this sophistry:
Just as the shooter of an M16 need only pull the trigger and maintain backward pressure (on the trigger), a shooter of a bump-stock-equipped AR–15 need only pull the trigger and maintain forward pressure (on the gun).
Sotomayor even points out that the Court has dealt with this question before and explicitly recognized “function of the trigger” as “a single pull of the trigger.” Staples v. United States, 511 U.S. 600 (1994).
But, you know, now Thomas has access to dictionaries from 1933 so he can cobble together some reason why that’s not what words mean.
Every Member of the majority has previously emphasized that the best way to respect congressional intent is to adhere to the ordinary understanding of the terms Congress uses. See, e.g., Jam v. International Finance Corp., 586 U.S. 199, 209 (2019) (ROBERTS, C.J., for the Court) (“‘[T]he legislative purpose is expressed by the ordinary meaning of the words used’”); Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 (2009) (THOMAS, J., for the Court) (“‘Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose’”); Wall v. Kholi, 562 U.S. 545, 551 (2011) (ALITO, J., for the Court) (“‘We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import’”); BP p.l.c. v. Mayor and City Council of Baltimore, 593 U.S. 230, 237 (2021) (GORSUCH, J., for the Court) (“When called on to interpret a statute, this Court generally seeks to discern and apply the ordinary meaning of its terms at the time of their adoption”); Sackett v. EPA, 598 U.S. 651, 723, 727 (2023) (KAVANAUGH, J., concurring in judgment) (reasoning that departing from “all indications of ordinary meaning” will “create regulatory uncertainty for the Federal Government… and regulated parties”); Bartenwerfer v. Buckley, 598 U. S. 69, 77, 83 (2023) (BARRETT, J., for the Court) (declining to “artificially narrow ordinary meaning” to “second-guess [Congress’s] judgment”). Today, the majority forgets that principle and substitutes its own view of what constitutes a “machinegun” for Congress’s.
That would be devastating if any of these people exhibited shame.
But still not quite as succinct as the opening.
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.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
