Liberal Justices claim Conservatives “Duck” on Bump Stocks
Has the Supreme Court gone MAGA? Or is the left just iMAGAing it? If Congress ducks an issue, should it up to the courts?
Can you believe those crazy MAGA conservative Justices on the Supreme Court? They believe that Congress should be making the laws—not judges, or federal agencies! How dare they rule in favor of…the Constitution!
In a 6-3 decision, pitting the Court’s conservative wing against the liberal, the Court on Thursday ruled that the Trump-era Justice Department exceeded its authority by classifying “bump stocks,” devices that alter semiautomatic weapons, like AR-15’s, as “machine guns.”
Following the deadly 2017 massacre in Las Vegas, where a gunman used bump stocks to modify semi-automatic rifles to murder 60 concert goers and wound 500 more, the ATF reclassified bump stocks as machine guns to force them off the market. A lawsuit challenging the decision, Garland v. Cargill, was filed on behalf of Michael Cargill, a Texas gun store owner who bought two bump stocks and had to surrender them to the government.
Not unexpectedly, much of the mainstream media is hyperbolic over the Court’s ruling, and with the six conservative justices who comprised the majority. “Conservatives on the U.S. Supreme Court,” writes Washington Post columnist E.J. Dionne, “have decided that more Americans must die in mass shootings because they have a quibble over the word ‘function.’” New York Times Deputy Editor David Firestone called it “one of the most astonishingly dangerous decisions ever issued by the court, and it will almost surely result in a loss of American lives in another mass shooting.”
But as much as Dionne and Firestone would like to make the ruling about bump stocks and an out-of-control, out-of-touch, MAGA conservative court, the decision wasn’t really about bump stocks. It was about who ultimately makes the laws.
“The opinion in Garland v. Cargill, written by Justice Clarence Thomas, is a straightforward case of statutory interpretation,” writes the Wall Street Journal Editorial Board. “Regulating bump stocks may be a reasonable policy, but it’s up to Congress.”
While on it’s face it’s about bump stocks, and by extension, guns—at its heart it reveals the stark differences between the Court’s conservatives and liberals—and the contrasting theories they have over the role, and power, of the Supreme Court. Should, for example, the court be traditionalist, or activist? Should the court step back and let the legislative process unfold (or not), or should the court step in when, or if, they fear Congress might not?
The Framers intended the three branches of government—the legislative, the executive and the judicial—to be superior, each within their own sphere. Lawmaking was solely to be the prerogative of the Legislative branch. “In republican government,” Madison wrote in The Federalist, “legislative authority necessarily predominates.” Hamilton, also writing in Federalist, explained that the courts “were designed to be an intermediate body between the people and the legislature.”
While much of the majority decision in Cargill is a technical explanation about how bump stocks work, and why they don’t meet the legal statutory definition of a “machine gun,” it also expressly considers the role of the Court itself, and its place in a government predicated on checks and balances and separation of powers.
“The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning,” Justice Alito wrote in a concurring opinion. “That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b) [the federal law banning machine guns]. But an event that highlights the need to amend a law does not itself change the law’s meaning.”
“There is a simple remedy for the disparate treatment of bump stocks and machineguns, Congress can amend the law.”
“There is, continued Alito, “a simple remedy for the disparate treatment of bump stocks and machineguns, Congress can amend the law.”
That was not good enough for the liberals on the court, however. Writing for the liberal minority, Justice Sotomayor chided the majority for ignoring what she believed to be the obvious—that bump stocks transformed a legal weapon into a illegal one, and by doing so, endangers the public.
Are conservative Justices “ducking” the issue?
“Today, “she wrote, “the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of ‘machinegun’ and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”
“The majority,” the dissent continues, “arrogates Congress’s policymaking role to itself by allowing bumpstock users to circumvent Congress’s ban on weapons that shoot rapidly via a single action of the shooter.” Kagan takes it further. “Today’s decision to reject that ordinary understanding will have deadly consequences. The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.”
In an amusing irony, both the conservatives and liberals accused each other of the same thing—claiming the other is ignoring the “plain language” of the statute and meaning of the law, and instead seeking to usurp the legislative powers of Congress by judicial fiat.
But the philosophical differences between the two are not just academic arguments, and here’s why.
In his majority opinion, Justice Thomas notes that “For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) consistently took the position that semiautomatic rifles equipped with bump stocks were not machineguns,” but that “ATF abruptly changed course,” in the wake of the horrific Las Vegas shooting. “ATF,” writes Thomas, “subsequently proposed a rule that would repudiate its previous guidance and amend its regulations to ‘clarify’ that bump stocks are machineguns.”
As Thomas notes, “its [ATF] consistent position for almost a decade in numerous separate decisions was that §5845(b) [the machine gun statute] does not capture semiautomatic rifles equipped with bump stocks.” Certainly, in the wake of the Las Vegas massacre, a re-examination of what constitutes a “machine gun” was in order, or the outlawing of bump stocks outright. But that’s the job of Congress, not unelected bureaucrats or judges. Courts and bureaucrats shouldn’t be reinterpreting a law because circumstances changed, Congress should change the laws because they do.
It bears pointing out that the court’s conservative majority didn’t say that banning bump stocks was unconstitutional—only that bump stocks don’t “meet the legal statutory definition” of a “machine gun.” Nowhere in their ruling does the conservative majority, either implicitly, or explicitly, rely on the Second Amendment to invalidate the ATF’s guidance banning bump stocks. Congress can outlaw them according to the majority—it’s just that they haven’t. In fact, the Court’s conservative majority invites Congress to do so.
You might have read or seen that Justices Alito and Roberts were recently ambushed at a charity event by an “advocacy journalist” trying to trick one, or both, of them into admitting that their true agenda was to “return our country to a place of godliness.” Roberts, refusing to be baited, “pushed back,” reasserting his view of the limited role of the Supreme Court.
“[I]n response to efforts by a liberal operative to goad him into saying that there was ‘a role for the court’ in ‘guiding us toward a more moral path,” writes Nick Robertson of The Hill, Chief Justice Roberts replied, “Would you want me to be in charge of putting the nation on a more moral path? That’s for people we elect. That’s not for lawyers. It’s our job, to decide the cases the best we can.”
“This is an especially important message in an era when regulators in both parties have decided they can rewrite laws regardless of the plain language of a statute,” according to a Wall Street Journal editorial. “In this and other cases, the Supreme Court has been saying loud and clear that regulators can’t exceed their authority—and that Congress needs to get back in the business of debating and writing laws rather than ducking difficult votes in favor of the administrative state.”
Has the Supreme Court gone MAGA?
Last August New York Times columnist and lawyer David French wrote an interesting commentary on the US Supreme Court in response to cries from the left that the court has gone “MAGA.”
“If you ask folks on the left to describe the contemporary Supreme Court, you may hear one or more common words used to describe it: ‘rogue’ or ‘extremist’ or ‘illegitimate’ or ‘broken,’” writes French, “But when I look at the court, I see something quite different: the last federal bastion of the pre-Trump right.”
Despite having nominated three of the justices now sitting on the court, “The Supreme Court is in many ways a throwback to the status quo before Donald Trump,” French argues, “The court is definitely not liberal. But it’s equally clear that it is not MAGA.”
Actually, French argues, the court has managed to enrage both liberals and the Trump right alike. Like the liberal approach to jurisprudence, the “MAGA” approach values a result that fits their political and social views, “consequences be damned.” The current conservative Court’s jurisprudence, according to French, is best summed up as “apply the text and original public meaning of the law, consequences be considered.”
I understand many, especially those on the left, are frustrated with the Court’s decision in Cargill. But it’s not, nor should it be, the role of the courts, or the bureaucracy, to legislate. Especially when they fear Congress won’t. That duty, as Justices Roberts, Alito, and the rest of the Court’s conservative majority argue, rightfully belongs only to Congress. If Congress isn’t doing its job—the people can replace them with those who will.
Yet, there are those who believe Congress is not up to the task. “Defenders of the court majority will no doubt say that Congress can clarify the law by banning bump stocks directly, and of course that is what should happen now,” warns the Washington Post’s Dionne, “But will congressional conservatives, who fall over themselves to venerate Donald Trump, be eager to restore a policy instituted by his administration? Call me skeptical.”
That’s illogical. The logic would be that conservatives who “venerate” Trump would be eager to uphold a Trump policy—which in this case was the ATF’s defining bump stocks as machine guns.
“Less than six years ago,” reports the AP’s Adriana Gomez Licon, “then-President Donald Trump took on the influential gun lobby after the deadliest massacre in modern U.S. history. He announced that he had told the National Rifle Association that ‘bump stocks are gone,’ arguing they ‘turn legal weapons into illegal machine guns.’”
We’ve already seen multiple occasions where far-right Republicans in the House heel when Trump commands. Take, for example, the far-right’s abandoning a border deal that included much of what they claimed they wanted when Trump refused to support it. Or the far-right’s backing off Speaker Johnson after Trump said he was “doing a very good job.” Why would Dionne think they would buck him now?
Perhaps it’s prudent, like Dionne, to be skeptical of Congress when it comes to agreeing on just about anything. But as the Wall Street Journal asks, “Why should Congress ever take a vote if lawmakers can simply defer hard policy choices to the regulatory state?”