Multiple Supreme Court Justices Exhibit Lack Of Gun & Constitutional Knowledge In Bump-Stock Arguments

P. Gardner Goldsmith | March 5, 2024
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Frustrated readers will be forgiven for thinking certain members of the Supreme Court of the United States (SCOTUS) acted like children February 28 when the justices heard oral arguments over the so-called “Bump-stock Ban.”

The case is entitled, Garland v Cargill and it not only hints that numerous members of the Supreme Court either can’t or don’t want to read the Constitution, it indicates that they also don’t have a clue about how firearms work.

Good thing they’re protected by armed guards whom we have to pay, even as these judges ruminate and cogitate over our right to keep and bear arms.

RELATED: Federal Judge Halts Enforcement of Biden's Pistol Brace' Ban (

SCOTUS Blog’s Amy Howe offers key background to the case, which saw its genesis in 2017 when under a Trump executive order the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF or ATF) moved to categorize bump-stocks as “machine guns,” ban their sale, and require owners to turn them in or destroy them.

The ATF did this in 2018, thus breaching not only the Constitution’s prohibition against ex-post-facto laws, but also claiming that a gun part is a gun, and, to cap that off, flipping the proverbial “bird” at the Second Amendment once they had categorized the tool as a “machine gun.”

In fact, some of the “Justices” saw fit to make things more absurd, by not only focusing on the irrelevant and Kafkaesque question of whether a “bump-stock” magically turns a single-pull-single-shot firearm into a “machine gun,” but by completely overlooking the key constitutional problems that so clearly are part of the ATF and its “bump-stock ban.”

Notes Howe:

“Michael Cargill, the owner of a gun store in Austin, surrendered several bump stocks he had in his store after ATF published its rule. He then went to court, seeking to have the rule invalidated.

The full U.S. Court of Appeals for the 5th Circuit ruled in Cargill’s case that the definition of ‘machinegun’ clearly does not apply to bump stocks. A machine gun, the court of appeals explained, is a gun that shoots multiple bullets ‘automatically’ and ‘by a single function of the trigger,’ or any accessory that allows a gun to do so. But even if the definition were not clear, the 5th Circuit continued, bump stocks should be excluded from the definition of ‘machinegun’ under the rule of lenity, a doctrine that instructs courts to apply ambiguous criminal laws in the way that is most favorable to defendants.”

Howe notes that the Sixth Circuit Court of Appeals reached “the same conclusion” to a similar challenge in its region, but that the DC Circuit Court of Appeals found in favor of the ATF in a third, similar, case.

And so the big issue seemed to be: did the ATF do wrong or right defining a bump-stock as a “machine gun”?

Yes, you will be forgiven if you think you’re looking at children playing make-believe.

As I noted last year when the SCOTUS accepted the case, the question of whether a bump-stock is a “machine gun” not only is a patently obvious “NO,” the question, itself, is completely irrelevant and a distraction from the serious problems presented by the ATF's activity. It also is a distraction from the problems presented by the existence of the ATF, itself, and presented by the very immoral idea that any political forces can “forbid” people from owning or buying something that, unto itself, brings no aggressive harm to another person or his property.

Like the royal subjects in “The Emperor’s New Clothes” pretended that a naked monarch was wearing fashionable attire and they made up details to describe his non-existent outfit, many on the SCOTUS bench overlooked the obvious, that there is no federal power to prohibit the purchase of any object, let alone a firearm, and that IF a bump-stock were to be categorized as a gun, it would get DOUBLE protection thanks to the Second Amendment.

Instead, they debated what the bump-stock does, and whether it turns a single-shot (they errantly call it “semi-automatic”) gun into a “machine gun.”

As Saheb Ettaba indicates for Barrons, that was where childish Justice Elana Kagan wanted to play. Kagan expressed her belief that a bump-stock allows multiple shots with a “single human action,” and that, as a result, the 1934 Firearms Act allows the ATF to “ban” it.

Even Neil Gorsuch focused on that question, though he disagreed with her conclusion:

"’It's a very old statute, and it was designed for an obvious problem in the 1930s and Al Capone,’ said Justice Neil Gorsuch.

‘Maybe they should have written something better,’ the conservative justice said. ‘One might hope they might write something better in the future, but that's the language we're stuck with.’"

But by focusing on whether the Firearms Act applies or doesn’t apply to a piece of hardware, both of them miss the point. It would not matter if the 1934 statute were applicable. The statute, itself, is unconstitutional.

One wonders which is more objectionable, the fact that judges like Kagan are so ignorant about guns, or the fact that even Gorsuch, a CONSERVATIVE, focuses on the 1934 Firearms Act to try to figure out if a bump-stock can be considered a "machine gun".

First, let's set him and Kagan straight: a bump-stock is an accessory. It's not a gun.

Second, it doesn't turn any gun into a machine gun that fires multiple rounds with one trigger-pull. It allows for faster trigger-pulling by utilizing recoil to push the trigger back up against the firing finger.

Third, even if it were a "machine gun" or they wanted to pretend that it made a rifle a "machine gun", the Trump executive order on bump stocks was not legislation.

Fourth, if it WERE legislation, it would not be any more constitutional or moral to pass or enforce the ban on a THING, the purchase of which not only doesn't harm someone, but also does not give any indication that it will be used for criminal purpose.

FIFTH, if they want to apply the 1934 Firearms Act to this, the act was not a "ban" on machine guns perse because the feds can't BAN items, especially guns. Because the Constitution allows for excise taxes in internal sales of goods, the '34 act was a TAX on machine guns, short-barreled shotguns, and silencers (the collection of which actually got the ball rolling for the official branch of the IRS called the BATF in 1952, which was originally purposed to be the gun-tax collection muscle). If the feds wanted to try to fold bump-stocks into the 1934 Firearms Act, they would have to apply the tax paradigm to the sale of the accessory, not outright ban it.

The FDR-gang move to foist onto machine gun sales a tax so high it made purchase of machine guns almost cost-prohibitive was their way to skirt the Second Amendment. 

But if one really studies that effort, and then considers the universality of the Second Amendment, one must acknowledge that ANY federal excise tax (or local or state tax) on guns or ammo is a breach of the Second Amendment. Since a tax is an imposition -- i.e. a REQUIREMENT by government to pay it or you cannot exercise your right -- it is an infringement of that right, placing a stipulation on how and at what tax threshold you can exercise your right.

This battle actually offers a great opportunity to see the unconstitutional nature (it's always immoral to block or tax) of any excise tax on guns or ammo, because they are government infringements on your right to keep and bear arms.

Making your right to keep and bear arms contingent on you paying a tax is a clear infringement of the right. Thus, if there is one silver lining to this troubling line of oral arguments in the bump-stock ban issue, it is that we can more clearly see that a tax on guns and ammo is an infringement of the Second Amendment.

But don’t expect any of the confused Supreme Court judges to consider that, or the other major problems tied to this ATF attack on our rights.

Instead, they would rather waste time making up things about bump-stocks, overlooking the fact that the ban completely breaches the Second Amendment, and the fact that it imposes punishment without trial and in an ex-post-facto fashion.

Childish? You bet.

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