Skip to content

Justices weigh if old machine gun ban covers new ‘bump stocks’

Justices split at oral argument on whether the government has authority to ban the devices

The Supreme Court building in Washington.
The Supreme Court building in Washington. (Bill Clark/CQ Roll Call)

The Supreme Court sounded skeptical Wednesday of arguments that a law meant to ban machine guns does not cover “bump stocks” that help a shooter mimic an automatic firearm.

The attorney for Michael Cargill, the man at the center of the challenge to a Trump-era rule from the Bureau of Alcohol, Tobacco, Firearms and Explosives, told the justices the agency went too far when it decided bump stocks fit the definition of a machine gun, which are generally banned under federal law.

A bump stock is an add-on to a gun that uses recoil to “bump” the gun back into the trigger finger of the shooter, firing faster than usual, and became an issue after authorities said a shooter had several of them on guns when he killed more than 50 people at a Las Vegas music festival in 2017.

Jonathan F. Mitchell, Cargill’s attorney, argued that the statute focuses on the “function” of the trigger when it defined a machine gun, which the bump stock does not alter. Mitchell said the stock uses recoil to “bump” the gun backward and the shooter pulls the barrel forward, allowing the gun to fire faster than usual.

The bump stock “is not changing the nature of the trigger mechanism at all,” Mitchell said.

When the rule went into effect, Cargill surrendered several of the devices and then challenged the ATF rule in Texas federal court. Cargill argued the ATF had it correct when the agency previously approved the devices.

But justices questioned whether Cargill’s argument missed the target, during nearly two hours of oral arguments in which the justices at times mimed holding guns as part of their questions about how the devices worked.

Justice Elena Kagan and the other two justices on the liberal wing of the court pointed out that the statute also contains language meant to also ban devices that change a semi-automatic rifle into a machine gun, which had been used in the past.

“The entire way this statute is written suggests that Congress was very aware that there could be small adjustments of a weapon that could get around what Congress meant to prohibit,” Kagan said.

Kagan pointed out that under Mitchell’s argument, a gun that required two buttons to fire automatically would be banned but the bump stock that requires the shooter to press the trigger and press the barrel forward would not.

“I can’t understand how anyone could say those two things should be treated differently,” Kagan said.

Justice Clarence Thomas asked whether the court should look at the statute more broadly, rather than focus on the nature of the trigger mechanism.

“I think the difference is that there may be some who believe, when you look at it, the nature of the firing has changed as a result of the bump stock,” Thomas said. “So if that’s changed, why don’t you simply then look backwards and say that the nature of the firing mechanism has changed, thus the nature of the trigger has changed?”

Justice Samuel A. Alito Jr. questioned why Congress would write a statute to cover machine guns but not other devices that would create similar weapons.

“Can you imagine a legislator thinking ‘we want to ban machine guns but not ban bump stocks’?” Alito said.

Mitchell responded that bump stocks can allow people with disabilities such as arthritis to fire a rifle when they may otherwise have difficulty — a policy Congress may consider.

‘What Congress intended’

The Biden administration asked the justices to reverse a decision from the U.S. Court of Appeals for the 5th Circuit that nixed the rule for going beyond the definition of machine gun currently in the law. The appeals court wrote that the definition hinges on a single operation of the trigger mechanism rather than any action by the trigger finger.

“Those weapons do exactly what Congress intended to prohibit when it prohibited machine guns,” Brian H. Fletcher, principal deputy solicitor general, told the justices.

At several points, conservatives on the court expressed hesitance to side with the Biden administration’s approach to the statute. Justice Amy Coney Barrett said she was “entirely sympathetic” to the Biden administration’s approach to the law, but she noted that Congress could have written the statute to more explicitly cover devices like bump stocks.

Justice Neil M. Gorsuch pointed out the “very old” statute was first written in 1934 in response to machine gun use by gangsters like Al Capone and did not explicitly include devices like bump stocks. The statute was last amended by Congress in 1986.

“And maybe they should have written something better. One might hope they might write something better in the future. But that’s the language we’re stuck with,” Gorsuch said.

Both Gorsuch and Justice Brett M. Kavanaugh noted that the statute comes with criminal penalties.

Gorsuch pointed out that because of the uncertainty surrounding the devices it would be difficult for the government to prove someone knew they broke the law.

Fletcher responded that the statute was meant to cover all the ways that a person may mimic automatic fire on a semi-automatic rifle. Upholding the 5th Circuit decision would open the machine gun ban to “all sorts of evasion,” Fletcher said.

The Trump administration pursued the rule after the Las Vegas shooting.

Congressional leaders declined to act on bipartisan legislation introduced after the shooting, and the ATF issued a rule banning the devices by defining them as machine guns, which are restricted under long-standing federal law.

The Democrat-led House advanced a bill that contained a bump stock ban, among other measures in 2022, but the measure was not included in a broader compromise bill that included gun control provisions that was enacted that year.

The justices will likely decide the case before the conclusion of the current term at the end of June.

Recent Stories

Total eclipse of the Hart (and Russell buildings) — Congressional Hits and Misses

House plans to send Mayorkas impeachment articles to Senate on Tuesday

Harris sticks with Agriculture spending, Amodei likely to head DHS panel

Editor’s Note: What passes for normal in Congress

House approves surveillance authority reauthorization bill

White House rattles its saber with warnings to Iran, China about attacking US allies