The Supreme Court of the United States on Friday, June 14 issued a 6-3 decision favoring the defendant in the case of “Garland v. Cargill,” and, in so doing, the majority offered what appears to be a win both for the abstract right to keep and bear arms and for those hoping to stop similar Executive Branch “bans” on gun accessories such as arm braces and possibly even 3-D kit parts.
Like many seeming “wins” for freedom in the SCOTUS, however, the victory is Pyrrhic, and the reasons for that dark stain on the ruling are very important.
First, a key look at the timeline of the “Trump bump-stock ban” case.
In a flagrantly unconstitutional move, then-President Trump on December 18, 2018, issued an “Executive Order” banning from future sale any gun accessory known as a “bump-stock.” He supposedly did this in “response” to a mass shooting in Las Vegas one year earlier – a shooting in which government officials claimed the assailant had used, among other things, a single-shot rifle with a “bump-stock” attached to facilitate faster trigger pulls.
Not only did that “ban” prohibit future sales, it compelled owners of the devices to turn them in, to police in their states.
That didn’t sit well for many freedom-lovers, and Michael Cargill is one of them. Cargill owns a gun store in Texas, and, as Justice Clarence Thomas notes on page 5 of the SCOTUS decision:
"...Cargill surrendered two bump stocks to ATF under protest. He then filed suit to challenge the final Rule, asserting a claim under the Administrative Procedure Act.”
Cargill’s legal team made the point that the ATF is an administrative arm of the Executive Branch, a branch that was expanding its purview to enforce new prohibitions without Congressional statute allowing for such expansion.
This particular facet of the Cargill case also is known as the “Chevron Standard,” a practice within the courts that allows “regulatory agencies” “leeway” "within reasonable parameters" of the agency-generating legislation or under which the agency is trying to expand its purview.
As an important aside, we must note that this glorious “Chevron Standard” also is being challenged in the Supreme Court – challenged by northeastern fishermen because the feds are trying to make them not only keep "fish counters" on their boats, but also to make the fishermen PAY their fed-agent salaries.
In this bump-stock decision, Thomas’ majority opinion adds more valuable context about how Cargill’s legal team tore apart the expanded ATF “enforcement against bump-stocks.” Cargill focused on the fact that the ATF was “enforcing” the ban under the dream-like auspices that bump-stocks turned single-shot firearms into “machine guns,” allowing the feds to “target” the accessories – now magically turned into machine guns – under the 1934 Firearms Act.
“As relevant, Cargill alleged that ATF lacked statutory authority to promulgate the final Rule because bump stocks are not ‘machinegun[s]’ as defined in §5845(b) (the 1934 Firearms Act). After a bench trial, the District Court entered judgment for ATF. The court concluded that 'a bump stock fits the statutory definition of a ‘machinegun.’”
For many defenders of freedom, alarm bells likely have been going off as they read, because the right to keep and bear arms is not in this picture. The argument assumes a deeper defeat; it assumes that the government can ban machine guns, per the 1934 “Firearms Act,” and that the problem merely is how malleable the 1934 "Firearms Act" is.
That mixture of frustration, misgiving, and anger is very justified, and lies at the heart of this entire misplaced ruling. But let’s continue with the “how many devilish angels can dance on the head of a poison pin” story, looking at their court focus on the devilish minutiae, before we get to that core of the poison pin that Thomas et al did not address.
All of the “Chevron-based” debate about whether Trump and the ATF could pretend that a “bump-stock” turns a single-pull-single-round gun into a machine gun hinged on what the 1934 Firearms Act defined as a “machine gun”. And the act clearly focuses on guns that fire multiple rounds with one trigger-pull.
A bump-stock simply uses recoil to push the trigger back against the finger and allow for a quicker second, third, fourth, etc, trigger-movement.
As Thomas noted, lower courts have flip-flopped on the definition:
“The Court of Appeals initially affirmed (…), but later reversed after rehearing en banc (…) A majority agreed, at a minimum (…) that §5845(b) (The 1934 Firearms Act) is ambiguous as to whether a semiautomatic rifle equipped with a bump stock fits the statutory definition of a machinegun. And, the majority concluded that the rule of lenity required resolving that ambiguity in Cargill’s favor. Id., at 469; see also id., at 450, n. An eight-judge plurality determined that the statutory definition of ‘machinegun’ unambiguously excludes such weapons. A semiautomatic rifle equipped with a bump stock, the plurality reasoned, fires only one shot ‘each time the trigger ‘acts,’’ id., at 459, and so does not fire ‘more than one shot . . . by a single function of the trigger,’ §5845(b). The plurality also concluded that a bump stock does not enable a semiautomatic rifle to fire more than one shot ‘automatically’ because the shooter must ‘maintain manual, forward pressure on the barrel.’”
Of course, Justice Thomas errs when using the term “semiautomatic.” There really is no such thing as a “semiautomatic” gun – there is fully automatic, with one trigger-pull releasing multiple rounds, or there is a single-pull-single-shot mechanism, that’s it.
But, as rights-backers know, none of that is pertinent to the heart of the matter, which is whether any agency of any level of government, be it done through legislation or via "Executive Order," can infringe on the right to keep and bear arms or any device that might help make a firearm work. The answer in the Second Amendment is a clear negative. And that fact is supposed to negate the very existence of the ATF and the 1934 Firearms Act, which infringed on the right by telling people they must pay a high tax on certain guns (and on silencers).
Thomas and his conservative allies on the bench didn't address this at all.
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Indeed, the Constitutional issue is barred from discussion, and we are left with people arguing about how their nauseating fantasy of a government is going to run, arguing about picayune details, not the fundamentally important natural rights undercut by the very 1934 statute that, essentially, created the ATF.
And it ought be noted that, even if the Constitution were amended to allow the existence of the ATF or "gun-grab" statutes, there would be no moral authority for government to “enforce” the ban.
As protective of our rights as many people think it is, the Constitution is not a voluntary “contract.” Like all forms of political control, the Constitution is imposed on us. It would be nice if the politicians who swear to operate by it came even a little close to their oaths to uphold it, since they are claiming power over us that they cannot claim in any ethical capacity, but, clearly, even Justices like Clarence Thomas are more willing to spend time debating the nuances of trigger-pulls than they are to dig into and protect either the right to keep and bear arms as protected by the Second Amendment or the deeper right itself.
Michael Cargill Friday took to X to announce the victory, saying, in part:
“I beat ‘em in the United States Supreme Court. I was told, over five years ago, ‘Why are you going down this road? No one cares about bump-stocks, let’s go ahead and let them take the bump-stocks.’ But, instead, I stood and fought. And because of this, the bump-stock case is gonna be the case that saves everything. It’s gonna stop the ATF from coming after your brace, the triggers, all different parts and pieces that they’re trying to ban. And I’m glad I stood up and fought.”
He is absolutely right, and has been extremely courageous, and dedicated with his time and money.
But the SCOTUS only has ruled on, first, whether the bump-stock can be “identified” as a machine gun, and, second, whether the Executive Branch can make such a broad move without a new statute being passed by Congress that enables such expansion.
What if Congress passes such a statute some day?
The vast majority of congressmen and senators over the decades have shown through their actions that they treat the Constitution like a placemat on which they can eat our rights. Its words mean nothing to them.
Which is why it is both heartening, but, over the long-term, disappointing that the “conservatives” on the bench did not address the underlying usurpation of rights that came with the 1934 Firearms Act and all federal, state, and local gun-grabs.
We either have rights or we do not. If the bump-stock had been categorized as a “machine gun” that should have afforded it even more protection against federal bans, because the Second Amendment is clear.
So, with every facet of this case, we can see positives in the short-term, and negatives overall.
While one celebrates the courage of Mr. Cargill, one also can bemoan the blindness and lack of courage exhibited by the SCOTUS Justices.
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— MRCTV (@mrctv) June 14, 2024