What Today’s Ruling in Cargill Means for the 2A and Other Gun-Related Cases

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As Dan’s initial post reported, in an opinion by the ever-reliable Justice Clarence Thomas, the Supreme Court drop-kicked the ATF’s reinterpretation of the National Firearms Act, depositing it on the ash heap of history.

However, for those of you looking for another expansion of Second Amendment rights, you won’t find it here. Garland v. Cargill is and always has been strictly based on whether the ATF’s reinterpretation of the statutory definition of “machinegun” in the NFA was consistent with the law, as written. As I and others have long reported, this case has not and never has been Second Amendment-related.

Thomas’ opinion goes straight to the text of the 1934 NFA and its definition of “machinegun,” as well as giving an accurate description of what “bump firing” is and how it’s accomplished. He also noted the ATF’s prior position — that bump stocks do not convert a weapon into a machine gun — and that its abrupt change in position was purely a political one based on events in Las Vegas.

The guts of the opinion are as follows:

Section 5845(b) defines a “machinegun” as any weapon capable of firing “automatically more than one shot . . . by a single function of the trigger.” We hold that a semiautomatic rifle equipped with a bump stock is not a “machinegun” because it cannot fire more than one shot “by a single function of the trigger.” And, even if it could, it would not do so “automatically.” ATF therefore exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.

This is, of course, what everyone who actually knows anything about how guns work has been saying since the rule was first proposed. But Thomas then proceeded to really rub the ATF’s nose in it by showing exactly how the fire control group in an AR platform rifle actually works, complete with detailed diagrams.

The remainder of his relatively short opinion neatly disposes of the various straw men and other arguments advanced by Justice Sotomayor (who was joined in her dissent by — surprise, surprise — Justices Kagan and Jackson).

Justice Alito wrote a concurrence pointing out that the result in this case was obvious, “because there is simply no other way to read the statutory language.” However, he then added the following:

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.

For those of you hoping that a statutory ban on bump stocks or other weapons currently under the NFA would fail the Bruen test, Alito — who is probably second only to Thomas in his support of the Second Amendment — is pouring some very cold water on that idea.

Sotomayor’s dissent is predictably long on emotion and short on logic, dismissing Justice Thomas’ assessment of how the AR fire control groups works as a mere technicality. But she makes some interesting concessions in it.

For one, she repeatedly notes that semiautomatic AR’s are not machineguns. While that seems obvious to the People of the Gun, it undercuts an argument that some in the gun-grabber community have been developing recently and putting forward: that because an AR (or a GLOCK) can be “readily” converted to automatic fire (e.g., by adding a drop-in auto sear or a GLOCK switch), they claim these guns can fall under the NFA definition of a machinegun. Sotomayor’s dissent seems to cut that argument off.

She also notes that a professional sport shooter can fire an AR platform rifle at three rounds per second (180 rounds per minute). Again, that would seem to undercut the argument that rate of fire by itself can somehow be indicative of whether a firearm is a machinegun.

So what’s the likely impact on other cases out there? As for actual Second Amendment cases, there is likely no real impact, as the Second Amendment never even came up in Cargill. The real test there will be in the Rahimi case which, as you’ll see from the analysis I posted in the comments yesterday, I predict will be written by Chief Justice Roberts.

As for other cases that involve ATF’s reinterpretation of its regulations and federal statutes (e.g., Mock v. Garland, the pistol brace case, and Garland v. VanDerStok, the “frame or receiver” case), this decision certainly augurs well, as six Justices are clearly are not inclined to give ATF the benefit of the doubt when it comes to defining firearms.

How might it affect the challenges to the various “assault weapons” bans? That’s harder to say, but Alito’s concurrence certainly doesn’t give me a warm and fuzzy feeling. If he believes Congress can add bump stocks to the NFA, that may suggest he may be inclined to allow states to similarly restrict ownership of ARs. Then again, there was no Bruen analysis performed in this case, so I may be wrong. We’ll have to wait and see.

The bottom line is, for the moment, bump stocks are back on the menu. For Slide Fire and other adversely affected companies that were casualties of ATF’s redefinition, unfortunately they’re just out of luck. There’s not going to be any remedy for the ATF’s arbitrary destruction of their businesses. But I do suspect we will now see a concerted effort in Congress to formally add bump stocks to the NFA.

10 Responses

  1. “But I do suspect we will now see a concerted effort in Congress to formally add bump stocks to the NFA.”

    All it takes is for them to hold all three, House, Senate, and White House, and they can add them to the NFA.

    Would that also mean that re-opens the select fire registry?

    On an unrelated note, did your eyebrows rise when Kagan and the ‘Wise Latina’ (*gag*) voted with the majority on the Starbucks case? Only Jackson dissented. I found that… Interesting… 😉

    1. WRT reopening the registry, I’d hope that if it looks like the votes are there in both houses to add bump stocks to the NFA (and thanks to a lot of GOP squishes, there likely are), the GOP leadership would at least try and horse trade something for it — getting rid of the Hughes Amendment, fully reopening the MG registry, etc. But I also suspect that the Dems will similarly try to add the arm brace and “frame or receiver” rules to the statute. This could get messy.

      But other than blocking Garland from a confirmation vote, the current GOP caucus leadership has never demonstrated are sort of backbone or strategy.

      1. ” But I also suspect that the Dems will similarly try to add the arm brace and “frame or receiver” rules to the statute. This could get messy.”

        If I’m not mistaken, ‘Bruen’ held that the only constitutional gun laws were those in effect in the late 1700s.

        Factory-built guns were eye-watering expensive back then, so the colonists often imported the critical lockworks from Europe and forged their barrels here. That seems to me to be a perfectly analogous fit with today’s 80-percent ‘frame and receiver kits being sold today, no? Home-building was going on from nearly day one, it seems to me., but I’m no lawyer…

        1. Now that would make for some interesting reading….. especially when we have a NYC case regarding 80% (as well as our nonsense permit to touch let alone own a pistol).

    2. I think that any attempts to formally open up the definitions within the NFA would argumentatively expose other items to re-definition as well by pro-2A groups, and the Congress critters know that (well, maybe not AOC and her lower IQ ilk). So this may go in that direction, or it may not.

      1. “I think that any attempts to formally open up the definitions within the NFA would argumentatively expose other items to re-definition as well by pro-2A groups,…”

        Suppressors are little regulated in Europe, often simply cash-and-carry, exploit that to get cans off the NFA entirely. They say they want European gun laws here, lets make ’em choke on that… 🙂

  2. Don’t forget that the Fudds sold us down the river with the NFA and the FFA. Never back down on the RKBA: it’s not the right to keep and bear toys and sporting goods.

  3. @LKB, another fantastic write up, no surprise there but it is much appreciated. Correct me if I am wrong but people of the gun seemed to gain slightly more ground from the dissenting side then from the Thomas opinion. I have seen that Justice Sotomayor said “He did so by affixing a bump stock to commonly available, semiautomatic rifles”. I may be incorrect but aren’t most court arguments for AWB because they are claiming the guns are not in common use? Can this be used in upcoming court cases to debunk and allow strict scrutiny that bruen has suggested? And if Congress and whitehouse does cave and ban bumpstocks is there a possibility that it is struck down again by bruen, even with Justice Alito concurrence remarks? Thanks again.

  4. Bluster, one of my many progressive neighbors, has been complaining about SCOTUS’ “pro-gun’ stance. He went so far as to say that any Justice that owns guns or has family members who own guns, should be forced to recuse themselves from 2nd Amendment cases.

    I asked him whether Justices who own homes should recuse themselves from real estate related cases. He said “No, because houses aren’t dangerous and everyone needs a place to live”.

    So, there you have it.

    BTW, I call him ‘Bluster’ because he likes to yell about Trump. We actually get along very well. I clear the snow from his walks and driveway because he cannot.

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