The Cult of the Result: Bump Stocks and Mifepristone.
Posted by Ed Folsom, June 21, 2024.
Last week, the Supreme Court issued opinions in FDA v. Alliance for Hippocratic Medicine and Garland v. Cargill. In Alliance, the Court reversed a lower court ruling that threatened the ready availability of the abortion drug mifepristone for use without medical supervision. In Cargill, the Court set aside a ruling of the Bureau of Alcohol, Tobacco, and Firearms that semi-automatic firearms equipped with so-called bump stocks meet the statutory definition of a “machinegun.”
To many who favor the result in Alliance and oppose the result in Cargill, the result in Alliance is somewhat surprising because the current Supreme Court is able to muster a majority of votes for what these people call “far-right” decisions. After all, the result in Alliance leaves mifepristone readily available as an abortion drug. In this line of thought, the Supreme Court decides all issues that are freighted with political policy implications purely along lines of the majority’s political leanings. This is a threat to Our Democracy™ when it is done by a “far right” majority, while it is a wonderful thing, representative of the best features of Our Democracy™, when it is done by a “progressive” majority.
This lens for viewing Supreme Court opinions treats the facts of the case and controversy at issue as secondary, at best, to the political implications of the result. But for some mysterious reason, the “far right” Supreme Court majority deviated from expectation in Alliance and joined the “progressives” in reaching the desired “progressive” result. For that reason, the Alliance case does not present the urgent need to dismantle the Court and run out the “far right” majority that the Cargill case presents.
Cargill, on the other hand, falls in line with the results-oriented lens of interpretation because, there, the “far right” majority reached the anticipated “far right” result, against restrictions on firearms. This is, of course, the undesired result from a “progressive”-centric point of view. Again, the case facts and the details of the actual controversy before the Court matter very little. The only thing that really matters is whether the correct (“progressive”) or incorrect (“far right”) result was reached. The Court’s stated reasoning matters only to the degree it can be caricatured as stupid, used to convince the public that the majority is not only “right wing” but intellectually dull and worthy of mocking contempt.
The less informed the public is about the structure of American government in general, and about the constitutionally limited roles of the judicial, executive, and legislative branches more specifically, the more sense it makes to them to view Supreme Court decisions strictly through the lens of the desired versus the undesired political result.
Yesterday, in the local paper, there was a political cartoon commenting on the Cargill case. In middle of the sketch, Chief Justice Roberts hovers over the Supreme Court building with raised arms, uttering the words: “These two things are Not the same…for reasons too sublime for mere mortals to grasp.” Below him to his left, a cartoon figure fires a rifle equipped with a bump stock. Opposite that figure, another one fires a machine gun.
But, in fact, the reasons that a semi-automatic rifle equipped with a bump stock and a machinegun are not the same are in fact very easy for mere mortals to grasp. And Cargill, in any event, did not deal with whether the two are different but with whether the semi-automatic rifle equipped with a bump stock is a “machinegun” as defined in law by Congress. If it is a “machinegun,” as defined in law by Congress, the ATF has the power to regulate it as such, and if it is not, the ATF has no such power. That was the issue in Cargill. Deciding it had nothing to do with whether it is desirable or undesirable for the ATF to regulate bump stocks, just as the decision in Alliance has nothing to do with whether it is desirable or undesirable to ban mail-order mifepristone. The people who want you to believe otherwise prefer you to be stupid because it serves their political interests for you to be stupid.
The Alliance decision.
In Alliance, a group of doctors sued the FDA to stop the easy dispensing of mifepristone as an abortion drug, claiming that it resulted in women having to be treated for medical complications that they would not have had if the FDA’s regulation of mifepristone was not currently loose and unsafe. These doctors claimed that the resulting medical emergencies impact them directly. They are forced to treat women in emergency circumstances, in competition with other patients needing emergency care and against the conscience of these doctors regarding the performing of abortions.
The Supreme Court explained that it does not exist to decide which policies are wise and which are unwise. The Court has a very particular role, assigned to them under Article III of the U.S. Constitution. That role is to decide cases and controversies. Part of that role is to ensure that anyone bringing a claim for relief is so affected by an actual controversy, in an actual case, that they have what is called “standing.” If things were otherwise, anyone who dislikes an FDA policy might be allowed to drag their dislike before the courts for a ruling on the policy at stake. In the Alliance case, the Court decided that the doctor-plaintiffs are simply not directly enough affected by the FDA’s policies to have standing to complain about them. Therefore, their case is tossed and the FDA’s mifepristone policies continue as before.
Are the FDA’s mifepristone policies wise? Maybe not. Would it be appropriate to return to tighter control of the drug, requiring more medical supervision of its use? Maybe. These, however, are matters the doctor-plaintiffs can take up with the political branches: the legislative branch that has the Article I constitutional power to enact laws, and the executive branch that has the Article II power to execute the laws, which includes instructing and directing the administrative behemoth, the FDA, in its role of executing the laws that Congress has enacted.
In current vernacular, each branch has its own constitutionally prescribed “lane.” The constitution requires that each must stay in its lane. All the Supreme Court did in Alliance was stay in its Article III lane, regardless whether mifepristone should or should not be more tightly regulated, or dispensed like Pez, or banned. Get it? It had nothing to do with the desirability or undesirability of the political result that mifepristone remains available, with its conditions of use regulated as loosely as before.
The Cargill decision.
In Cargill, Plaintiff Cargill was forced to surrender bump stocks to the ATF, after the ATF suddenly reversed a longstanding position and ruled that bump stocks meet the statutory definition of “machineguns.” That placed Cargill in legal jeopardy if he continued to possess them. So he surrendered his bump stocks and then sued. This was an actual case and an actual controversy in which Cargill was directly affected. Cargill therefore had standing to complain.
Many years ago, Congress passed a statute regulating machine guns. The function of the executive branch of government is to execute the laws passed by Congress. The ATF exists as a regulatory agency within the executive branch, executing the laws passed by Congress that pertain to firearms. The ATF does not have the power to act beyond the scope of legislation passed by Congress.
For many years and over multiple presidential (executive branch) administrations, the ATF opined that it did not have the power to regulate bump stocks as machine guns. Then, in 2017, a lunatic in Las Vegas shot a whole bunch of people from the window of his hotel room, overlooking a country music festival. He used semi-automatic rifles equipped with bump stocks to fire rapidly in what approximated the speed of machine gun fire. In the wake of this incident, and at the urging of then-President Trump, the ATF reversed itself. Suddenly, they decided that bump stocks are machine guns such that it is illegal for nearly anyone to possess them. That is what led Cargill to surrender his bump stocks and then sue the ATF. Cargill claimed the ATF lacked the authority to regulate bump stock as machine guns, because bump stocks are not machine guns as defined in the law enacted by Congress.
As the Supreme Court framed the issue in Cargill:
Congress has long restricted access to “machinegun[s],” a category of firearms defined by the ability to “shoot, automatically more than one shot . . . by a single function of the trigger.” 26 U. S. C. §5845(b); see also 18 U. S. C. §922(o). Semiautomatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns. This case asks whether a bump stock—an accessory for a semi-automatic rifle that allows the shooter to rapidly reengage the trigger (and therefore achieve a high rate of fire)—converts the rifle into a “machinegun.”
That sums up the entire matter. The sole question in the case was whether or not Congress enacted legislation that allowed the ATF to regulate bump stocks as machine guns. If so, the ATF may regulate them. If not, the ATF has no power to regulate them. Whether it would be wise for Congress to regulate bump stock or not is irrelevant. Whether it would be wise if the ATF had the power to regulate bump stocks as machineguns is irrelevant. Those are political questions outside the Supreme Court’s lane to decide.
The Cargill Court quotes the pertinent statutory language in the following passage:
Under the National Firearms Act of 1934, a “machinegun” is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). The statutory definition also includes “any part designed and intended . . . for use in converting a weapon into a machinegun.”
Regarding all the nonsense you might have read, mocking the Court for deciding that a semi-automatic weapon with a bump stock is not a machinegun because it only fires one shot each time the trigger is pulled, well, the Court decided the case that way because Congress defined the term “machinegun” as a weapon that automatically fires more than once each time the trigger functions. Therefore, if a firearm doesn’t automatically fire more than one shot each time the trigger is pulled, it isn’t a “machinegun” as the controlling statute defines that term.
It has always been understood that a firearm that fires multiple shots automatically once the trigger is engaged, and continues firing until the trigger is released, is a machine gun. A firearm that fires only a single shot and then automatically reloads the chamber each time the trigger is engaged is a semi-automatic firearm.
Some people discovered that semi-automatic weapons can be made to fire very rapidly by taking advantage of the recoil action of the firearm which moves the firearm back and forth while the shooter holds the trigger finger stationary. In other words, even without a bump stock, a person can pull the trigger once on a semi-automatic weapon and, by holding the weapon just right, with forward pressure on the front stock, can cause the trigger to bump rapidly against the person’s finger as the weapon’s recoil action causes the weapon to rapidly move back and forth. With that discovery made, the bump stock was designed to make it much easier to capture this action than it is without a bump stock.
After the Las Vegas shooting, the ATF suddenly began to construe the phrase “by a single function of the trigger” as a phrase focused on what the shooter does with his trigger finger instead of what happens in the firearm’s trigger mechanism each time the trigger mechanism is engaged. In other words, because a person using a bump stock uses muscle action to only pull the trigger back once and then the firearm equipped with the bump stock does the rest, causing the trigger to bump against the person’s stationary finger repeatedly, that initial and only muscle action of the trigger finger falls within the statutory meaning of “a single function of the trigger.”
The Supreme Court majority decided that the plain language of the statute is not credibly amenable to that interpretation, that the statute addresses only what the firearm does when the trigger function, or mechanism, is engaged or pulled a single time. Does it fire only a single shot, or does it automatically fire multiple shots? Only the latter is what Congress defined as a machinegun. The former is not a machinegun, whether anyone thinks it might be desirable to treat it the same as a machinegun under certain circumstances or not, because that is not what Congress defined as a regulatable “machine gun.”
As the majority points out, because any semi-automatic rifle can fire in rapid succession without a bump stock when its trigger is caused to bump into the shooter’s stationary finger in rapid-fire succession, any old semi-automatic rifle meets the definition of a machinegun under the ATF’s most recent interpretation of the statute. And yet, the ATF concedes that a semi-automatic rifle without a bump stock is not a machinegun. Why? Because they want to ban the possession of bump stocks, not semi-automatic weapons more generally (for the time being anyway). Such is the level of principle involved in the ATF’s position.
And yet, about all we hear from those who don’t like the result in Cargill is something like: “Duh—It amounts to the same thing. Who’s dumb enough not to figure that out?
People who spend a lot of time concerned about threats to Our Democracy™ ought to be happy with the Supreme Court’s position in Cargill. It keeps the branches of our federal government firmly in their respective lanes. Whether bump stocks should or should not be regulated is a question exclusively to be worked out through the democratic process, in Congress. It is not a matter to be ordered by unelected bureaucrats acting outside their constitutional authority. If the people’s elected representatives in Congress don’t regulate bump stocks, the people can press them to do more. If the votes can be mustered for a ban on bump stocks, Our Democracy™ will enact a ban on bump stocks. If not, Our Democracy™ will not enact a ban on bump stocks.
The Cargill dissent.
There was a dissent in Cargill, written by Justice Sotomayor, joined by Justices Kagan and Jackson. It ends this way:
The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter. I respectfully dissent.
Notice that Justice Sotomayor is firmly focused on the desirability of the result. In her view, it is desirable to have the “Government” regulate bump stocks. The majority has an “artificially narrow definition” that hamstrings the “Government’s” efforts to keep “machineguns” from gunmen like the shooter in Las Vegas. Justice Sotomayor would make sure not to “hamstring the Government’s efforts.” She would construe the term “machinegun” to include bump stocks, thereby reaching the right political result, because she knows what the right political result is.
But the thing is, the Cargill majority did not have its own definition of “machinegun.” It was Congress’s definition of the term that the Court was tasked with interpreting, and the majority interpreted it to mean what it says. Under Congress’s definition, the question is: When the trigger functions a single time, how many shots does the weapon fire? The majority opinion also does not in any way hamper efforts to regulate machineguns. As Congress’s definition of “machinegun” and the majority opinion demonstrate, it isn’t machineguns that the “Government” was attempting to regulate here – it was bump stocks.
But just as importantly, the ATF’s actions were beyond the scope of its constitutional powers. It was entirely appropriate to hamstring the ATF’s efforts, because the ATF was acting outside its executive branch lane. As for the “Government,” it consists of three separate, equal branches. Only one has the power to address the matter – the legislative branch, Congress and the elected representatives that fill its ranks. The rest of the “Government” has no business trying to keep bump stocks away from the Las Vegas shooter or anyone else by force of law. It is beyond their constitutional powers, outside their respective lanes, unless and until Congress passes legislation regulating bump stocks.
“Progressives” tend to believe that we just need to get all right-thinking judges on the Supreme Court. Those right-thinking judges will always know what must be done for the greater good. They will never let the Government be hamstrung in its efforts to achieve the right result because of narrow-minded concerns over who has the constitutional power to do what. And each time the right-thinking judges reach the right result, it will always be a shining representation of Our Democracy™ at its finest, just as every time the wrongthinkers prevent the right result, it threatens Our Democracy™. ‘Cause anyone can see that a machinegun and a bump stock walk like a duck and amount to the same thing. Right?
Wat RU?…stupit or sumthing?
