OSD: The Cargill Ruling Makes Eventually Taking Down the NFA Look Problematic

machine gun belt fed

Antonin Scalia once described the presumption against ineffectiveness as “the idea that Congress presumably does not enact useless laws”. (He probably intended that to be read half-sarcastically.) The point is that courts should not interpret a law in a way that nullifies the law’s goal. In this case, Sotomayor uses that to suggest that courts should read this law to mean anything necessary to achieve the presumed goal, even if it violates the plain text of the law. She explains:

The majority tosses aside the presumption against ineffectiveness, claiming that its interpretation only “draws a line more narrowly than one of [Congress’s] conceivable statutory purposes might suggest” because the statute still regulates “all traditional machineguns” like M16s. Congress’s ban on M16s, however, is far less effective if a shooter can instead purchase a bump stock or construct a device that enables his AR-15 to fire at the same rate. Even bump-stock manufacturers recognize that they are exploiting a loophole, with one bragging on its website “Bumpfire Stocks are the closest you can get to full auto and still be legal.”

Gun companies back at it again with their dastardly tactics of complying with the law.

This is of course really what [Garland v. Gargill] was about. For people who want the machine gun ban to be a rate of fire ban, this was about whether that goal is worth making it official that federal agencies can simply make up their own laws. Intuitively you’d think that people would consider how a president they don’t like would use that power, but in these matters people aren’t incentivized to think about the long-term. They’re incentivized to score points today, consequences be damned.

There are a lot of political incentives for a rate of fire ban. Hoffnung, a user on our Discord, pointed out that there was a trend towards such bans after the Las Vegas music festival shooting. California had banned bump stocks since 1990, but D.C., Delaware, Florida, Hawaii, Maryland, Massachusetts, Nevada, New Jersey, New York, and Washington banned them after the shooting. Several states banned crank triggers too, and binary triggers are illegal in New Jersey. In 2022, the ATF issued an open letter saying that they’re going to treat some forced-reset triggers as machine guns. That’s a lot of social pressure to hold back with just a simple insistence on sticking to the text of the law. It’s good that the Supreme Court held their ground here.

But this case also showed us the limits of where the Supreme Court is going to go on the Second Amendment. Even the justices in the majority went out of their way during oral arguments to say, essentially, that they’d agree to an act of Congress banning bump stocks, and Alito went further with his concurrence — a sitting justice openly calling for Congress to pass a specific law. That’s abnormal.

The next test is the Rahimi case, for which the Supreme Court will release its ruling sometime in the next two weeks. (The next possible date is this Thursday.) That case is about someone who was charged with possessing a gun while under a domestic violence restraining order, and it might change the shape of the law around prohibited persons. Based on Garland v. Cargill, we shouldn’t expect the Court to make huge waves here. They might keep the law as-is, or they might issue a ruling laying out some principles, saying Rahimi’s as-applied challenge fails (i.e. he doesn’t get off the hook — he is by all accounts a violent criminal), and telling future defendants to work out the details in later cases.

The bigger test will be the cases coming through the system on assault weapon bans, magazine bans, and the Bruen response laws in California and New York. We’ve all been hoping those build towards an eventual case that strikes down the NFA. We have a clear signal now that that’s not going to happen with respect to machine guns. Whether it happens with respect to silencers and SBRs will depend on these upcoming cases. The NFA is essentially a federal licensing scheme similar to (and in fact lighter than) what New York City requires from its legal gun owners. If the status quo in New York survives the Court’s review, then it’s hard to see how the NFA wouldn’t. We’ll find out soon.

— Open Source Defense in Bump stocks are legal again. Does that matter?

15 Responses

  1. Alito went further with his concurrence — a sitting justice openly calling for Congress to pass a specific law.
    That’s not quite how I read Alito’s comment. His comment was that:

    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

    Congress has always had the authority to amend law – any law, and Alito is suggesting that is the proper course of action. I do not believe that he is indicating that doing so would not run afoul of the 2A – merely that the Government has a remedy. He might be “implying” that he feels it would not run afoul of 2A, but he doesn’t outright say that.

    Bruen makes clear that rights in general cannot be subject to political whims or societal influence. Heller makes clear that laws run afoul of 2A if an arm is not both dangerous and unusual. Bump Stocks, with over a million sold, cannot be unusual, and it is clearly an “arm” as it is an accessory, and the right extends prima facia to accessories.

    Of course, Miller held that arms of benefit to the militia are protected by 2A. So between Heller and Miller, an arm runs afoul of 2A if it is “dangerous and unusual” or it has use within a militia. MGs clearly fall into the later category.

    At the very minimum, the Hughes Amendment should be challenged as violating 2A. Then we can work on NFA as requiring a “tax” on a right.

    1. “At the very minimum, the Hughes Amendment should be challenged as violating 2A. Then we can work on NFA as requiring a “tax” on a right.”

      Quite a bit to digest, here –

      On the Hughes Amendment abomination, it was passed on a procedural ‘trick’ in 1986, not the normal way laws get passed and enacted, on that basis alone it needs to be struck down.

      Laws in general – I’m tired of the nasty ‘tricks’ being done like sneaking nasty surprises into unrelated bills (like the Hughes Amendment). Laws impacting the 2A need to be passed as stand-alone, if at all.

      We can kill the NFA tax on constitutional grounds, but they may respond by charging a ‘fee’ for the extended background check. A bit like how it’s against Islamic law for a bank to charge interest, so they just call it a fee.

      The NFA is a *little* easier to swallow these days with form 4 eFile approvals only taking a week these days, but I’d really like the actual 1920s-era stamp since it cost me so damn much….

    2. “Bump Stocks, with over a million sold, cannot be unusual, and it is clearly an “arm” as it is an accessory, and the right extends prima facia to accessories.”

      Did you see that the ‘Wise Latina’ herself, Sotomayor, handed us a full side of raw meat in her ‘Cargill’ dissent (that she probably thought was oh-so-clever)?

      I’m talking about her admitting to ‘common use’ screw-up :

    3. I demur.

      Alito did not need to say it would be just peachy for congress to amend the NFA to include bump stocks. It was a 100% gratuitous comment by him, and the implicit suggestion that it would satisfy Bruen (i.e., “Congress can act”) was especially inappropriate given that Cargill was not and never was a Second Amendment case.

      In theory, if all Congress did was add bump stocks to the NFA under the original meaning and practice of the law (i.e., as long as you file the paperwork and pay the tax, it’s OK (see Sonzinsky v. US (1937)), that *might* withstand a Bruen challenge. (This would treat bump stocks like SBR’s and SBS’s — still legal to possess so long as your paperwork is in order.) But that’s not what most people have proposed — if they redefine MG’s to include bump stocks (as Alito is suggesting that they can), then bump stocks are under the Hughes Amendment and are thus 100% prohibited because they were not on the registry as of 1986.

      I have never heard any cognizable defense of how the Hughes Amendment survives a Bruen challenge. MG’s were completely unrestricted until 1934, and could be made and possessed until 1986 with the proper tax paperwork (and still can be possessed today if you jump through the hoops and buy a transferrable MG that was on the registry in 1986). Historically, private citizens could and did own artillery and indeed entire warships in 1791 (and throughout the nineteenth century), so finding a historical analogue for the Hughes Amendment appears impossible.

      But politically, and especially to the inside the Beltway class, the mere thought that citizens can legally build and own MG’s is anathema.

      So why did Alito plainly telegraph that banning bump stocks would be OK under Bruen (especially given that as a Third Circuit judge, he had expressed doubts that the Hughes Amendment could be justified under the Commerce Clause post-Lopez) ? I suspect it’s a combination of Beltway virtue signaling (even Scalia was guilty of that on occasion), as well as a warning to the 2A community not to push the issue.

      It sucks, but to ignore that he’s sending a message is unwise.

        1. By design, Cargill was never a 2A case. Basic jurisprudence is to decide a case on the following legal grounds in this order (i.e., if it can be disposed on a higher ranked legal basis, you do that and go no further):

          Lack of Jurisdiction (subject matter or personal)
          Lack of Standing
          Procedural Flaws
          Statutory Construction
          Constitutional Interpretation

          You NEVER decide a constitutional issue if there is another way to decide a case.

          Cargill was always designed to laser focus on precisely the issue Thomas addressed: what’s the statutory definition of MG and can the rule be squared with it?

          1. Procedural Flaws, you say?

            Like how the Hughes Amendment was weaseled into that other bill in a decidedly non-standard fashion?

            Like that??? 🙂

          2. No, “procedural flaws” refers to things in the lawsuit like missing deadlines under the Federal Rules of Civil Procedure.

            The shenanigans surrounding the passage of the Hughes Amendment, unfortunately, fall under the “political questions” rubric. Because the bill was, in fact, reported out (albeit improperly), the courts aren’t going to touch that issue.

    4. No, Congress does not have the authority to pass laws outside of enumerated powers. Alito should absolutely know this. He is outright encouraging Congress to direct armed men to enact human rights abuses.

    5. Exactly. Justice Alito is mearly confirming the separation of powers: the legislature makes and amends laws, not the executive branch.

  2. “For people who want the machine gun ban to be a rate of fire ban, this was about whether that goal is worth making it official that federal agencies can simply make up their own laws.”

    Florida did that by passing a law that any device that increases rate of fire is now illegal, nuking bump-stocks, binary triggers, and the like…

    1. Sooo… does that mean my gun becomes illegal, in Florida, if I hand it to my friend Jerry? Guaranteed to increase the rate of fire over what I can do.

      1. Video Jerry Mic. blasting away and show it to a leftist and see what happens…

Leave a Reply

Your email address will not be published. Required fields are marked *