Never Interrupt Your Opponent When She’s Making a Mistake

Sonia Sotomayor the wise Latina
Supreme Court Justice Sonia Sotomayor  (AP Photo/Mark Schiefelbein)

With the announcement of Friday’s 6-3 Supreme Court decision overturning the block on bump stocks, there were the usual responses from the industry (yay!), the Brady bunch (boo!) and the typical bloviation from observers on both sides of the issue. On the pro-gun side, comments were calm and measured. At the same time, pro-gun leaders expect no slowing of the administration’s ceaseless assault on the Second Amendment. Judging from the president’s response on Friday, that’s an accurate assessment.

The anti-gun side predicts the deaths of tens of thousands of innocents entirely because the Supreme Court ruled (correctly) that a piece of plastic most of us regard a toy isn’t a machine gun. You can call a banana a machine gun, but that doesn’t make it one. The Supreme Court’s ruling was neither surprising nor unexpected. The high court may have its faults, but the ability to think clearly isn’t one of them.

Well, until one of the Justices gets their dander up. That’s when they get overwrought and wrapped around the axle of emotion. That’s when they make statements that can’t be recalled. Statements that might at some point in the not too distant future will come back to bite them.

After Friday’s dissenting opinion to the Cargil decision, Justice Sotomayor, joined by Justices Kagan, and Jackson might have, to use a trite phrase, “spiked her own cannon.”

The tactical mistake was brought to my attention by Alan Gottlieb of the Second Amendment Foundation. No stranger to legal opinions and their long-term implications, his reading of Justice Sotomayor’s opinion picked up a key portion of what the mainstream is praising as her “fiery and impassioned dissent” to the ruling.

Read the opening statement (full opinion here) and see if you see the key phrase:


On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U.S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest.

I missed it, but Gottlieb didn’t. What he’s seen may come back to haunt the anti-gun movement. Here’s the phrase Gottlieb finds so important . . .

He did so by affixing bump stocks to commonly available, semiautomatic rifles.

“Commonly available semiautomatic rifles”…as in AR platform rifles. In her overheated dissenting rhetoric (my words, not Gottlieb’s) Justices Sotomayor, Kagan, Jackson have made the legal admission that AR-15s are in common use.

Under the Heller and Bruen decisions, “common usage” precludes bans. In other words, words matter. Especially if you’re a Justice on the Supreme Court of the United States and they’ve just been entered into the record, even in a dissenting opinion.

Justice Sotomayor’s dissent also argues that “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.” She conveniently ignores the fact that her “duck” — or whatever bird it might be — only quacks once per activation of its “quacker.” In other words, you can stimulate the bird to quack faster, but it still requires outside action. One quack. One pull. One round.

Justice Sotomayor also acknowledges a simple fact in section II of her dissent . . .

A machinegun does not fire itself.

Neither does a semiautomatic rifle. And bump stocks require more than a trigger pull. They require two coordinated motions, which I have never been able to perform with any predictability…a press of the trigger while pushing the gun forward. Riding a bump stock-equipped rifle isn’t instinctive, it’s an acquired ability.

My favorite response to the decision came from National Association of Gun Rights president Dudley Brown. “The ATF,” he said, “has wandered so far out of its lane for so long, it can’t even find the road any more.”

That’s important, because the significance of Garland v. Cargill isn’t about the Second Amendment. The enumerated right was never in question. Cargill is important for gun owners, but it may be equally important to people who don’t really care at all about bump stocks.

This decision speaks to the “rubber ruler” syndrome frequently used in Washington. Eager to please their political bosses, bureaucrats reinterpret existing laws or rules in order to please the ideological leanings of their current political bosses. It’s important to note that the ATF had no problem with bump stocks until President Trump directed them to “do something” after the Las Vegas shooting.

That’s where Cargill is most important. It reestablishes guardrails saying the ATF exceeded its statutory authority. Cargill sets the groundwork for other bureaucrats having their collective hands slapped for overreach in other government agencies.

While the Mock v. Garland (pistol brace) and Cargill decisions certainly slap both the ATF’s figurative hands for overreach, Cargill sets a tone by the high court that should give hope to anyone finding themselves being impacted by a federal bureaucrat’s arbitrary reinterpretation of existing law. And there may still be more coming from the Court in that regard.

From bureaucratic restrictions on certain “disfavored” uses of public lands to overly broad interpretations of the “waters of the US,” Friday’s action by the high court serves notice that the rules are not to be adjusted to suit political whim. The rules are the rules. That should encourage all of us. Until the next time.

We’ll keep you posted.

3 Responses

  1. I’m not sure Sotomayor knows what a duck is, and because this wasn’t a 2A challenge, it doesn’t matter if it was a duck.

    The ATF reversed a decades-old “approval”, which was sought by a company in good-faith (just like pistol-braces). The majority opinion held that is clearly “illegal” and provided appropriate relief (striking down the reinterpreted rule). They went further to say that the original ATF opinion was correct according to the statute. They also provided the process for legally altering the statute (although it’s key that if the statute were changed, there likely would be 2A challenges that resulted).

    The minority opinion was simply “a lot of people died this one time. Society mandates that we do something”. Except Bruen already said interest balancing tests have no place when it comes to rights.

    1. “The minority opinion was simply “a lot of people died this one time. Society mandates that we do something”. Except Bruen already said interest balancing tests have no place when it comes to rights.”

      It was much more than that, an argument they have been making is that semi-auto, magazine-fed firearms aren’t very common, and therefore not protected by the 2A, so they can simply be banned.

      Yes, this was a *serious* tactical error on their part that they can’t walk simply back, it’s now black-letter law etched in stone, and they did it all on their own… 🙂

  2. If you set up a random lottery in any run-of-the mill state university in the country, you would find a better Supreme Court Judge that this illiterate front hole. Her ignorance of the law is legendary; just read some of her past opinions. She is a minority hire chosen for political purposes, kind of like our latest Justice.

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