How Amy Coney Barrett could save us from fully legal automatic weapons

“Intuitively, I am entirely sympathetic to your argument,” Justice Amy Coney Barrett told Brian Fletcher, the Justice Department lawyer defending a ban on devices that convert ordinary semiautomatic weapons into much more deadly guns capable of firing very rapidly, during a Supreme Court argument Wednesday morning.

That’s probably a good sign that Barrett, a conservative Trump appointee who sometimes breaks from her fellow Republican justices in gun cases, will uphold the ban on these devices, which are known as “bump stocks.”

Right now, lower courts are bitterly divided over whether an existing federal ban on “machineguns” is broad enough to encompass these bump stocks, with many (but not all) Republican appointees reading the ban narrowly, and many (but not all) Democratic appointees flipping in the other direction. Barrett asked a few questions that suggest she might break this partisan logjam and side with the judiciary’s more liberal faction in the process.

But Barrett and Chief Justice John Roberts, another Republican appointee who sometimes breaks with his party on guns, otherwise played their cards fairly close to their chests.

Roberts asked a few questions that suggest he is unsympathetic to the weaker of two arguments raised by Jonathan Mitchell, the lawyer attacking the ban, but the chief had little to say about Mitchell’s stronger argument. And Barrett’s questions largely dug into fairly granular details about how bump stocks function.

So, if you had to make a bet on how this case, known as Garland v. Cargill, will come down, you should bet on the bump stock ban being upheld. But you also shouldn’t have a very high level of confidence that your bet will pay off.

Federal law bans civilian ownership of “machineguns,” except in limited circumstances. It defines a “machinegun” to include “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.”

A bump stock, meanwhile, is a device that allows semiautomatic weapons — guns that are designed to fire just one shot every time the shooter pulls the trigger — to mimic a fully automatic weapon that is designed to fire a continuous stream of bullets. Bump stocks cause the firearm’s trigger to repeatedly buck against the shooter’s finger, as the gun’s recoil makes the weapon jerk back and forth.

In 2018, the Trump administration issued a regulation banning bump stocks after a gunman used one to kill 60 people and wound hundreds more at a country music festival in Las Vegas. Federal courts have divided, however, on whether the federal ban on automatic weapons’ reference to “a single function of the trigger” is broad enough to encompass bump stocks.

Some judges, including a pair of judges on the left-leaning United States Court of Appeals for the District of Columbia Circuit, concluded that this reference to “a single function of the trigger” should be read to mean “a single pull of the trigger from the perspective of the shooter.”

Thus, in that court’s words, a semiautomatic gun equipped with a bump stock counts as a “machinegun” because “the shooter engages in a single pull of the trigger with her trigger finger, and that action, via the operation of the bump stock, yields a continuous stream of fire as long she keeps her finger stationary and does not release it.”

Other judges, such as many on the far-right Fifth Circuit, read the statute differently, emphasizing that the gun’s trigger still moves many times when a bump stock is used, even if the shooter does not need to take any additional action to make that happen. Although these Fifth Circuit judges conceded that bump stocks allow semiautomatic firearms to be fired quite rapidly, they claimed that “the fact remains that only one bullet is fired each time the shooter pulls the trigger.”

As a simple matter of parsing the statute’s text, both of these interpretations of the law are plausible. So the task facing the Supreme Court is to choose between these two possible readings of an ambiguous federal law.

The Cargill case tees up a perennial problem for gun policymakers. When Congress writes a law banning pretty much anything, it typically must define the thing that is being banned. So, after Congress bans a type of gun or firearm accessory, gun manufacturers frequently look at the statutory definition of the banned device and try to design a new device that functions exactly the same as the prohibited item but that does not fit within the definition.

This problem arises so often that the Supreme Court decided a similar case just last August. That case involved so-called “ghost guns,” weapons that are sold in dismantled but easy-to-assemble kits, in an attempt to evade federal laws governing more immediately operational guns.

Notably, in that case, known as Garland v. VanDerStok, both Roberts and Barrett joined the Court’s three Democratic appointees in sustaining a federal rule prohibiting the sale of ghost guns.

During Wednesday’s oral argument, meanwhile, Justice Sonia Sotomayor suggested one way to extend that holding in VanDerStok to similar efforts to evade gun laws through creative engineering. As she pointed out, citing a very old Supreme Court case known as The Emily and the Caroline (1824), the Court has long warned against reading ambiguous laws in ways that render them ineffective.

“In construing a statute, penal as well as others,” the Court explained in The Emily, “we must look to the object in view, and never adopt an interpretation that will defeat its own purpose if it will admit of any other reasonable construction.”

But it was unclear whether Roberts or Barrett were prepared to go as far as Sotomayor in negating gun manufacturers’ attempts to evade regulation.

Barrett did float one possible way to resolve this case in favor of the government, without having to get into the larger issue of whether gun laws generally should be read to avoid sabotage.

Much of the argument session focused on the fact that not all guns have traditional triggers, a curved metal lever that the shooter pulls to make the gun fire. And the justices seemed to broadly agree that an automatic weapon fits the federal definition of a “machinegun,” even if it uses a nontraditional trigger such as a button or a switch to initiate fire.

Like such a gun with a nontraditional trigger, bump stocks change the method a shooter uses to make a gun fire. Instead of simply tugging on a curved metal lever, the shooter must place their finger by the trigger and then maintain continual forward pressure on the barrel to initiate automatic fire.

Barrett asked whether the government “could have defined the bump stock itself as the trigger” when it wrote the regulation banning them. That is, rather than conceptualizing a semiautomatic gun with a bump stock as a gun with a traditional, curved-lever trigger, it could instead be thought of the same way as a gun with a nontraditional trigger such as a button or a switch.

In other words, once the device is installed, the gun’s “trigger” is whatever mechanism allows the gun to begin firing, regardless of whether the weapon uses a simpler mechanism if the bump stock is removed.

Given Barrett’s earlier comment that she was “sympathetic” to the government’s argument and her vote in the VanDerStok case, this one question may preview what Barrett will eventually say if she’s asked to write a majority opinion in Cargill — although her question about what constitutes a trigger was brief and offered little certainty about how she is thinking.

All of this said, it was hard to listen to Wednesday’s argument without coming away with the impression that the bump stock ban will probably be fine.

Mitchell, the lawyer attacking the ban, is known for making hyper-formalistic arguments that make sense if you only pay attention to a law or legal doctrine’s naked text, but that produce absurd and often deeply harmful results. His arguments in this case fit that pattern, and he didn’t help himself by frequently responding to skeptical questions by simply repeating his same answers in increasingly condescending tones.

Nor did Mitchell help his case by dwelling on an argument that no justices appeared to find persuasive.

Recall that the federal definition of a “machinegun” applies to guns that fire “automatically.” Mitchell claimed that bump-stock-equipped weapons do not engage in automatic fire because the shooter must maintain continual forward pressure on the barrel. But traditional automatic weapons require the shooter to maintain continual backward pressure on the trigger to sustain fire, and no one thinks that these guns do not fire “automatically.”

In any event, this argument by Mitchell landed with such a thud before the justices that even Justice Samuel Alito, the Court’s most reliable Republican partisan, warned Mitchell that he found it confusing and urged Mitchell to move on to a different claim.

Similarly, while Justice Brett Kavanaugh asked several very skeptical questions of Fletcher, the Justice Department lawyer, during Fletcher’s time at the podium, Kavanaugh appeared to grow more and more skeptical of Mitchell’s arguments as they wore on.

Indeed, Kavanaugh spent the closing part of the argument session questioning whether there was any evidence that the ambiguous language in the federal law, the language governing “a single function of the trigger,” was originally understood to turn on the specific details of how a gun actually functions.

So, while the key justices did not explicitly reveal how they were thinking through this case, the tone of the argument suggested that they were thoughtfully listening to Fletcher’s attempt to address their concerns and that they grew increasingly frustrated by Mitchell’s repetitive arguments and indignant tone.

Whether that means that the bump stock ban will be upheld is still uncertain. But, again, it appears more likely than not that it will.