In October 2017, Stephen Paddock committed mass murder at a Las Vegas music festival when he fired over a thousand rounds from his 32nd-floor hotel window, killing 60 people and wounding over 400 more in the space of a few minutes. Paddock escaped justice by killing himself before he could be apprehended, but in the aftermath of the bloodbath he unleashed, attention turned to the reason he was able to fire so many shots so quickly. Paddock’s semiautomatic rifle was equipped with a bump stock—a device that harnesses the weapon’s recoil so that it jolts rapidly back and forth against the shooter’s trigger finger, thereby enabling it to fire at rates rivaling fully automatic rifles, i.e., machineguns.
Federal law has banned possession of machineguns since the 1930s, but at the time of Paddock’s atrocities, bump-stock-equipped semiautomatics were legal to possess. Accordingly, in 2017, there were widespread calls for Congress to ban bump stocks. However, as so often happens in the wake of mass shootings, Republicans refused to act, preferring to send thoughts and prayers, while seeking to divert public attention by falsely blaming most gun violence on mental illness.
Yet so great was the public call for action on bump stocks that then-President Donald Trump—who in most respects was and remains very supportive of the rights of gun owners—announced that his administration would ban them. It did just that in 2018, when the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) promulgated a regulation clarifying that henceforth the statutory definition of a machinegun would include bump stocks.
On Friday of last week, the Supreme Court—in a 6-3 opinion authored by Justice Clarence Thomas—invalidated the bump stock prohibition. The ATF regulation went beyond the scope of the statutory definition, the Court held in Garland v. Cargill.
Much of the disagreement between the majority (comprising all of the Court’s Republican appointees) and the dissent (comprising all of its Democratic appointees) focused on how to parse the statutory language. However, one would have to be especially naïve to fail to notice that the Court’s lineup in the Cargill case perfectly tracked the Justices’ ideological druthers when it comes to firearms. Although the statutory interpretation issue in Cargill was completely different from the issue the Court faced in a key Second Amendment case two years ago, it cannot be a coincidence that all eight of the Justices who remain on the Court from that time voted the same way: either to invalidate both New York’s gun-control law under the Second Amendment and the bump stock ban as beyond the scope of the federal statute (Republican appointees); or to uphold both forms of gun control (Democratic appointees).
What the Statute Says
The U.S. Code defines a machinegun as “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.” The statutory definition also includes parts “designed and intended[] for use in converting a weapon into a machinegun.” That additional language would seem to pretty clearly cover bump stocks, which are designed for the very purpose and have the precise effect of enabling a shooter to use a semiautomatic rifle as a de facto machinegun.
Why, then, did the majority in Cargill find otherwise? According to Justice Thomas, when a bump stock harnesses a semiautomatic rifle’s recoil, it results in an additional pull of the trigger for each shot. Thus, he said, the bump-stock-equipped semi does not result in “more than one shot . . . by a single function of the trigger,” much less does it do so “automatically.” Rapid repeat pulls of the trigger, he said, do not change the “function of the trigger.”
Writing for herself and the other dissenters, Justice Sonia Sotomayor disagreed. A shooter using a bump-stock-equipped semi needs to pull the trigger only once. Just as with a standard machinegun, the shooter must hold the trigger rather than release it, rendering the two forms of weapons functionally indistinguishable.
The majority resisted that conclusion by pointing to the fact that, in addition to holding down the trigger, a shooter of a bump-stock-equipped semi must also exert forward pressure (either via the trigger hand or with the other hand), so that the gun receives additional human input and thus does not repeatedly fire “automatically.” The dissent responded that exerting constant forward pressure is not different, so far as the statute is concerned, from maintaining pressure on a trigger.
There was more back and forth, but in the end, it is difficult to believe that the statutory words alone decided the case. It appears that the Justices’ ideological druthers regarding gun control did.
Is this Really a Methodological Disagreement?
But wait. Maybe a disagreement over the proper method for interpreting statutes, not policy divisions about gun control, accounted for the divide. In recent decades, conservative jurists have tended to prefer the methodology known as textualism, while liberals more frequently are purposivists.
The Cargill dissenters did look to statutory purpose. They said that Congress could not have had any sensible reason to care whether a device creates a de facto machinegun by modifying the trigger mechanism of the weapon itself rather than how it is used. Indeed, even Justice Samuel Alito, who joined the majority opinion, wrote a separate concurrence in which he acknowledged that the Congress that enacted the statutory definition “would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock.” However, he said, “the statutory text is clear,” leaving the Court no choice but to invalidate the bump stock ban.
Is that the secret sauce? Do the Republican appointees simply apply the statutory text while Democratic appointees look to legislative purpose to shed light on the text’s meaning and application?
Hardly. The Democratic appointees do not disregard statutory text. In fact, Justice Elena Kagan famously remarked in 2015 that “we’re all textualists now,” explaining that, thanks to the influence of Justice Antonin Scalia, jurists across the ideological spectrum came to accept the primacy of text in statutory cases.
Indeed, these days liberals no less than conservatives frequently write highly textualist opinions. For example, Justice Sotomayor’s opinion for the Court last year in Dubin v. United States—a case involving the health care fraud statute—could have been written by Justice Scalia. And in Cargill itself, Justice Sotomayor’s dissent emphasized that, in her view, “[a]ll of the textual evidence points to” the conclusion that bump stocks are machineguns.
How can it be that Justice Alito said—and the rest of the Cargill majority thought—that the statutory text clearly excludes bump stocks from the definition of machineguns, while the dissenters thought that the same text clearly requires the opposite conclusion? If nothing else, the very disagreement would seem to suggest that both sides are wrong. The fact of disagreement is a strong indication that the statutory text is unclear.
Does Cargill therefore illustrate the poverty of textualism? Yes, as does a mountain of further evidence. However, that does not mean that purposivism is substantially more determinative of outcomes in contested Supreme Court cases.
To be sure, as Justice Alito’s concurrence acknowledged and as Justice Sotomayor’s dissent explained at greater length, in Cargill, resort to legislative purpose should have been enough to tip the scales in favor of upholding the bump stock regulation. However, legislative purpose is not always so helpful. Indeed, some of the leading scholars who first advocated textualism did so precisely because they thought that purposivism was frequently used as a license for judicial creativity.
They were not entirely wrong. Statutes are the product of compromises among legislators with a variety of aims and, in any event, few statutes pursue their motivating purposes at all costs. Thus, critics of purposivism fairly object, reliance on the purpose of a statute to resolve ambiguity frequently means carrying out the purpose the judge would like to see pursued. Just as the supposedly clear meaning of statutory text is often in the eye of the beholder, so is the legislative purpose often constructed by judges after the fact.
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Thus, we are left to fall back on the obvious ideological explanation for the outcome of Cargill and so many other Supreme Court cases.
That is not to say that law in general is radically indeterminate. Over a great range of issues, the law is clear. However, few people bother to litigate when the law is clearly against them. And when they do, their cases rarely make it very far.
Because the Supreme Court grants review mostly in cases presenting questions that have divided the lower courts, its docket has a selection bias for difficult cases, those in which plausible arguments can be made for a variety of results. Hence, a Supreme Court case that involves ideologically divisive issues—such as gun control—will typically yield ideologically polarized voting patterns among the Justices, who inevitably filter text, legislative purpose, precedent, and the other under-determinative sources cited to them through their own values. Nothing could be clearer.
