The Supreme Court appeared divided Wednesday over whether a 1930s ban on machine guns should be applied to bump stocks — modern devices that allow rapid, repeated fire.
The justice repeatedly asked lawyers how many times a trigger is pulled with a bump stock versus the standard pull of a trigger on a machine gun.
“What would I have to do to fire a machine gun,” Justice Clarence Thomas asked. “With a bump stock, what would I do differently? … The same thing is happening with the trigger?”
“I am having a little trouble with the non-trigger hand,” said Chief Justice John G. Roberts Jr. “Are you just holding the gun or are you moving it forward and then back?”
The high court heard oral arguments Wednesday on a challenge to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ 2018 ban on bump stocks in the wake of 2017 Las Vegas shooting that killed 60 people.
Bump stocks were used by the gunman in the massacre. Though they are not firearms themselves, they allow semiautomatic weapons to fire at high speed.
Michael Cargill, owner of Central Texas Gun Works, surrendered his bump stocks under the ATF ban in 2018, then filed a lawsuit arguing the ban violates the Administrative Procedure Act, which governs how agencies make regulations.
The full 5th U.S. Circuit Court of Appeals ruled in his favor, reasoning that the government’s use of a decades-old ban on machine guns and applying that to bump stocks was ambiguous.
The government’s appeal of that ruling is now before the justices, who will decide if bump stocks can be classified as machine guns and be banned under the National Firearms Act of 1934.
The Trump administration, through the ATF, prohibited bump stocks after the Las Vegas shooting, in which the gunman used the devices to shoot more than 500 people in 11 minutes.
The ATF’s 2018 rule cited Congress’ law restricting ownership of machine guns manufactured after 1986 under an application of the National Firearms Act. The feds’ position is that bump stocks make nearly any gun a machine gun when attached to a firearm.
“There is just a single action of the trigger,” Brian H. Fletcher, principal deputy solicitor general, told the justices on Wednesday. “It would have been irresponsible for the ATF not to take a closer look at this classification.”
But Jonathan Mitchell, representing Mr. Cargill, said shooters have to take more action with bump stocks, unlike the firing of a machine gun.
“The trigger must reset after every shot,” Mr. Cargill said. “There is no automatic fire.”
The court’s liberal wing appeared ready to move past technicalities over the trigger’s action, saying that’s irrelevant to the intent of the machine gun ban.
“Textualism is not inconsistent with common sense,” said Justice Elena Kagan. “What this statute comprehends is a weapon that fires a multitude of shots with a single human action.”
But the conservative wing raised concerns over a statute from the 1930s being applied to modern devices, suggesting that Congress could ban bump stocks with more precise language if it desired.
“It’s a very old statute,” Justice Neil M. Gorsuch said. “Maybe they should have written something better. One might hope they write something better in the future, but that’s the language we’re stuck with.”
The case isn’t a challenge under the Second Amendment, but Mr. Cargill said a win will help bolster gun rights. The focus of his argument is alleged errors made during the ATF’s rulemaking process.
Owners had until March 2019 to surrender their bump stocks after they were outlawed.
According to the ATF, more than 500,000 Americans purchased bump stocks during the nearly 10-year period they were lawfully available. The expected loss of property value is expected to exceed $100 million, according to court documents.
The high court had previously declined to review the legality of a bump stock ban at least three times. The U.S. Courts of Appeals for the 6th, 10th and D.C. circuits refused to hear challenges over the ATF’s rule.
For nine years, ATF had concluded that bump stocks are not machine guns because they “they did not ‘automatically’ shoot more than one shot with a single pull of the trigger,” according to court records.
That changed after the 2017 mass shooting.
The case is Garland v. Cargill. A ruling is expected by the end of June.