Jun 18, 2024

The Supreme Court's bump-stock ruling.

A bump stock mounted on an AK-47. Image: WASR/Wikicommons
A bump stock mounted on an AK-47. Image: WASR/Wikicommons

Plus, we check in on the developments in Haiti.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today, we are covering the Supreme Court's bump-stock ruling. Plus, we check in on the humanitarian situation in Haiti.

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Quick hits.

  1. President Biden is planning to announce a new policy today that will protect roughly 550,000 undocumented spouses of U.S. citizens from deportation, so long as they have lived in the U.S. for at least 10 years. (The policy)
  2. Nikhil Gupta, an Indian national accused of plotting to assassinate a U.S. citizen who campaigned for a breakaway state for Indian Sikhs, was extradited to the U.S. and pleaded not guilty to charges. (The extradition)
  3. In one of the largest executive orders of its kind, Maryland's governor will pardon 175,000 convictions for low-level marijuana offenses. (The pardons)
  4. The IRS is planning to end “partnership basis shifting,” a process it calls a major loophole for wealthy taxpayers, aiming to raise $50 billion a year in revenue over the next decade. (The rule
  5. The Justice Department filed a lawsuit against Adobe, saying it imposed an early-termination fee and a complicated cancellation process for users. (The lawsuit)

Today's topic.

The bump-stock ban. On Friday, a divided Supreme Court struck down a Trump-era ban on bump stocks, the gun attachment used to make semi-automatic weapons fire at a rate similar to fully automatic firearms. The court broke 6-3 along ideological lines, with all three liberal justices in dissent. In the majority opinion, Justice Clarence Thomas emphasized that Congress has not enacted a law to ban weapons capable of high rates of fire, so the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was wrong to apply a machine-gun ban to bump stocks.

Reminder: In 2017, a mass shooter killed 60 people and injured over 500 more at an outdoor concert in Las Vegas using several semi-automatic rifles, some of which were equipped with  bump stocks. Following the shooting, the ATF issued a rule defining firearms fitted with bump stocks as machine guns, making them illegal under federal law and requiring anyone owning a bump stock to destroy it or surrender it at an ATF office to avoid a penalty. Previously, the ATF banned only some kinds of bump stocks under the machine-gun ban.

One bump stock owner — U.S. Army veteran and gun shop owner Michael Cargill — turned his bump stock in to the ATF and then immediately challenged the rule. In January 2023, the U.S. Court of Appeals for the 5th Circuit sided with Cargill and struck the rule down, then Attorney General Merrick Garland appealed the case — Garland v. Cargill — to the Supreme Court. On Friday, the court upheld the 5th Circuit's decision.

What happened: Unlike other recent gun-related Supreme Court cases, Cargill has nothing to do with the Second Amendment. Instead, Cargill’s challenge focused exclusively on whether the federal government's 1934 machine-gun ban could apply to a gun fitted with a bump stock. Currently, the law defines a machine gun as any weapon that can fire more than one shot automatically with a single function of the trigger.

In his 19-page majority opinion, Thomas argued that semiautomatic rifles with a bump stock do not technically fit that definition. A bump stock reduces the amount of time between trigger finger actions, Thomas determined, but does not turn the firing of multiple rounds into a single or automatic action of the trigger.

A bump stock replaces the stock, the part of the gun held against the shoulder, and works by leveraging the kickback of the weapon to slide forward and press the trigger into the shooter’s finger. A skilled shooter can therefore use the modified weapon’s mechanics to fire successive shots by maintaining just the right amount of forward pressure on their rifle's front grip.

All five conservative justices joined Thomas's opinion, while Justice Samuel Alito penned his own shorter opinion emphasizing that the Congress which enacted the machine-gun ban likely would have seen no difference between a machine gun and a semiautomatic rifle equipped with a bump stock. Still, Alito wrote, the court must follow the law’s text, adding that Congress could resolve the issue simply by amending the 1934 machine-gun ban to include bump stocks.

Justice Sonia Sotomayor called the case "easy" in her dissent, arguing that Congress's aim in banning machine guns was to prohibit civilians from owning weapons that could fire continuously without the need for rapid trigger pulls.

“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,” Sotomayor wrote. “A bump-stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger,’” Sotomayor wrote, quoting the statute. “I, like Congress, call that a machinegun.”

On Tuesday, Sen. Chuck Schumer (D-NY) is expected to request the Senate’s unanimous consent to ban bump stocks. Sen. Lindsay Graham (R-SC) has vowed to oppose the process. 

Today, we're going to examine some arguments from the right and left about the ruling, then my take.


What the right is saying.

  • The right supports the decision, noting the court has taken a consistent stance against federal agency overreach.
  • Some question whether Congress has the authority to ban bump stocks even if it wanted to.
  • Others agree with Alito’s concurrence and urge Congress to take up the issue. 

The Wall Street Journal editorial board called it a “welcome” ruling.

“Why should Congress ever take a vote if lawmakers can simply defer hard policy choices to the regulatory state? That is the subtext of the Supreme Court’s welcome 6-3 ruling Friday on ‘bump stocks,’” the board said. “Justice Thomas says the ATF ‘on more than 10 separate occasions’ acknowledged that bump stocks did not qualify as machine guns. In 2018 the agency estimated that there could be up to 520,000 of them in circulation. The ATF does not get to turn something like half a million Americans into potential felons without any say-so from Congress.”

“In doing so, it let Congress off the hook, as Justice Samuel Alito points out in a concurrence… 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,” the board wrote. “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.”

In Reason, Stephen Halbrook said the ruling “has broad implications.”

“While the Court's discussion of how the trigger, sear, disconnector, and bolt interact in the firing sequence is quite technical, the decision embodies broader implications that are significant in other contexts,” Halbrook wrote. “It is settled once and for all that a semiautomatic is not a machinegun. That should be a no-brainer, but plaintiffs alleged that AR-15s are machineguns in the Las Vegas, Highland Park, and Mexico civil lawsuits.”

“The decision reinforces that any change in the criminal law should be made by Congress, not by administrative agencies… Since that will now be on the table, how Congress acts if it is inclined to do so really matters,” Halbrook said. “Bills must already be in the works to ban bump stocks. Will they allow as many as 520,000 bump stocks (ATF's higher estimate) to be registered? And if they do, what percentage of owners would register them?” Halbook said. “Whatever the future holds, Cargill sets a good omen that the Court won't be beholden to the administrative state.”

In City Journal, Robert VerBruggen wrote “this requires legislation—not executive order.”

“The ruling offers a lesson in the perils of executive overreach and a chance for Congress to do what it should have done from the start,” VerBruggen said. “Congress knew that banning a gun accessory would be politically difficult. The solution, backed by the National Rifle Association, was for the executive branch to pretend the law already applied to bump stocks, despite the statute’s clear language and the fact that the ATF had been allowing these devices for years. Meanwhile, several bills to address bump stocks went nowhere.

“Any Court serious about interpreting the law as written would come to the same conclusion. Bump stocks simply do not allow a gun to fire multiple times with one ‘function of the trigger’; they help a shooter pull the trigger faster. Any functional Congress, though, would see the problem and fix the law, given that practically no one wants automatic weapons to be readily available and bump stocks make semiautomatic rifles their functional equivalent.”


What the left is saying.

  • The left criticizes the decision but calls on Congress to reinstate the ban.
  • Some say Thomas’s opinion used faulty reasoning to reach a desired conclusion.
  • Others say the ruling eschewed common sense on gun safety.

The Washington Post editorial board wrote “the court misfired on bump stocks. Congress can still succeed.”

“The majority opinion… is a tour de force of statutory hairsplitting, which concludes that the bump stock does not, strictly speaking, make it possible to fire multiple rounds with a single pull of the trigger. Therefore, Justice Thomas wrote, the device does not fall within the definition of a machine gun Congress established when it imposed tight limits civilian possession of such weapons 90 years ago,” the board said. “The Thomas opinion feels like the ultimate triumph of form over substance, as Justice Sonia Sotomayor wrote in a dissenting opinion… She added, accurately, we fear: ‘Today’s decision to reject that ordinary understanding will have deadly consequences.’

“The only problem is that Justice Thomas was correct to point out that the 2018 regulation, issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, did not represent that agency’s consistent view. In fact, it represented a 180-degree reversal of ATF’s position on bump stocks before the Las Vegas massacre,” the board wrote. “This history shows what can go wrong when such clearly legislative matters are left up to the bureaucracy and the courts. It would be far preferable for Congress to provide fresh guidance, instead of relying on regulators and judges to parse a 90-year-old statutory text.”

In Slate, Mark Joseph Stern called the ruling “indefensible.”

“One might hope a ruling that stands to inflict so much carnage would, at least, be indisputably compelled by law. It is not. Far from it: To reach this result, Justice Clarence Thomas’ opinion for the court tortures statutory text beyond all recognition, defying Congress’ clear and (until now) well-established commands,” Stern said. “The Supreme Court has decided that it understands firearms better than the ATF. Thomas’ majority opinion reads like the fevered work of a gun fetishist, complete with diagrams and even a GIF.”

“To reach his preferred result, Thomas falsely accused ATF of taking the ‘position’ that bump stocks were legal, then ‘abruptly’ reversing course after the Las Vegas shooting. This account is dead wrong: ATF took a careful, case-by-case view of different bump stock–like devices as gunmakers developed them, deeming some permissible and others unlawful. The gun industry pushed these devices into the mainstream by deceiving ATF about their purpose,” Stern wrote. “A deep current of gun fetishism runs through Thomas’ opinion. But so, too, does an arrogant skepticism of federal agencies like ATF and the experts who staff them.”

In The Los Angeles Times, Erwin Chemerinsky said “the Supreme Court went out of its way to ignore common sense on bump stocks.”

“Although the case involved the interpretation of a federal law and not the 2nd Amendment, it again shows us that the conservative majority on the court will protect gun rights and put lives in needless jeopardy… The new ATF rule made enormous sense. A weapon outfitted with a bump stock is for all intents and purposes a machine gun; common sense dictates that it should fall under the federal ban,” Chemerinsky wrote. “Unfortunately, the court… decided minute differences in bump stock weapons and machine guns mean the ATF lacked the authority to adopt its rule.”

“In addition to discounting common sense, the court ignored the principle that there should be deference to federal agencies, such as the ATF, when they interpret federal statutes. It also failed to follow the principle that statutes should be interpreted to fulfill their purpose,” Chemerinsky said. “Why in the world would six Supreme Court justices deny the federal government the ability to interpret the federal law to prohibit bump stocks? The only explanation is that the ultraconservative majority supports gun rights virtually without question. They just as steadfastly refuse to recognize the enormous toll of gun violence in the United States.”


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • Left-leaning authors are giving some classic signals that the conservative justices’ opinion is justified.
  • Thomas went into painstaking detail for why the machine-gun ban doesn’t apply to bump stocks.
  • Congress can and should take control of the situation and ban bump stocks.

In yesterday's newsletter, I criticized the way conservative media outlets discussed a conservative judge's ruling on mifepristone, calling it a dead giveaway that the ruling was sound. In particular, I pointed to the Wall Street Journal saying Judge Kacsmaryk made "several legal leaps" as a classic mealy-mouthed concession that he was ignoring the law.

Today, some writers on the left are doing something similar. Mark Joseph Stern (under “What the left is saying”) wrote that Thomas’s majority opinion “reads like the fevered work of a gun fetishist, complete with diagrams and even a GIF. The justice, who worships at the altar of the firearm, plainly relished the opportunity to depict the inner workings of these cherished tools of slaughter.” That’s a rather derogatory way of saying that the justice went to great lengths to explain his decision with details, visuals, and intimate knowledge of how bump stocks and automatic firearms work.

Similarly, The Washington Post editorial board (under "What the left is saying") described Justice Thomas's opinion as "a tour de force of statutory hairsplitting, which concludes that the bump stock does not, strictly speaking, make it possible to fire multiple rounds with a single pull of the trigger." Again, that’s a really interesting way of describing a justice going into painstaking detail to prove his point. Actually, "statutory hairsplitting" is precisely what I want Supreme Court justices doing. 

Kudos to the Post’s editorial board, at least, for conceding Thomas was correct to note the ATF's position amounted to a reversal of longstanding policy. And even though they come at the issue from a different perspective, it’s heartening to see the board agree with authors from the right in blaming the ATF’s broad re-interpretation on the inaction of federal legislators. 

Like the Post’s editorial, I think Thomas's opinion — which you can read yourself — is a deliberate and thorough explanation of why the bump-stock ban issued by the ATF should not stand up to legal scrutiny. Unlike the Post, I’m happy to concede that without lamenting the decision because it isn’t the outcome I wanted.

Over the last few years, I’ve done my best to take the court’s cases as I think anyone should: one by one. But one of the overarching themes of this Supreme Court is their willingness to insist legislators do more legislating, which would allow agencies to enforce clearer and more specific laws and the court to interpret fewer broadly scoped cases. When this court has seen the bureaucratic hand of a federal agency overextend its reach, it’s pushed it back. And I appreciate the court for that. Contrary to the fear mongering accompanying the outcome of those cases, federal agencies haven’t collapsed and regulations haven’t gone up in smoke.

The message for the left — and for all legislators — is as simple as it seems: Legislate. If you want a federal policy to be law, don’t pretzel decades-old statutes to provide your legal framework; pass a law. I don’t think that’s particularly complicated, and in this case it’s quite straightforward. Alito’s concurrence made it clear a bump-stock ban would be perfectly constitutional; it just can’t come from the ATF re-interpreting a rule in a new way. As is often the case, the issue with this ruling doesn’t lie with this court, which I think is doing its job. The issue lies with Congress, which isn’t.

I say all of this, by the way, as someone who absolutely supports a bump-stock ban. Justice Sonia Sotomayor is right that, from the perspective of a citizenry that would simply not benefit from civilians being able to fire hundreds of rounds per minute, bump stocks shouldn't be legal. And while federal legislators have tried to prevent them from being legal, many state legislatures — from Florida to Vermont — have succeeded in doing just that. 

Machine guns have been banned since the 1930s, and no private citizen is allowed to own a fully automatic weapon made after 1986. While many useful gun-control laws are either ignored or implemented poorly, the prohibition on machine guns has been a very effective piece of gun control legislation; but the bump stock modification effectively provides a way around it.

In other words: I would have been happy if the court upheld the ban, solely because that outcome is the one I preferred. But I don’t think it's particularly mystifying why they didn’t, nor do I think the decision of six of its justices is a sign of its corruption. 

The solution, quite obviously, is for Congress to amend the 1934 law to include bump stocks — something Democrats have already started to try to do and that Republicans should be able to work with them to accomplish. Indeed, if legislators hadn’t relied on the ATF rulemaking process to get what they wanted in 2017, that might have happened then. It's worth reiterating that Trump pushed the bump-stock ban (and even the NRA supported a more limited version of the rule), so it's not as if the political will isn't there. We just need to muster it now, rather than wait for another mass shooting to provide the impetus.

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Your questions, answered.

Q: What is the latest on the humanitarian situation in Haiti?

— Note to self, from March 26

Tangle: When we cover humanitarian incidents, we like to follow up several months later to see how the impacted area is recovering. On March 26, we covered the violence and unrest in Haiti. At the time, the violence led to the U.S. evacuating over 230 of its citizens and to the displacement of 362,000 Haitians, according to the U.N.’s estimates. Here’s what we wrote at the time:

“On the evening of March 3, gangs in Haiti stormed a major prison in the capital Port-au-Prince, freeing 3,700 inmates and leading the government to declare a state of emergency. The prison attacks followed calls by gang leader Jimmy Chérizier to overthrow President Ariel Henry, who came to office shortly after the assassination of President Jovenel Moïse in July 2021. Henry had pledged to step down by early February 2024, but later said that security must be re-established before Haiti could hold free and fair elections. The clashes began while Henry was in Kenya finalizing the details of a UN-sponsored mission to contract 1,000 police officers to help Haiti’s security situation.”

So, how are things going? Not well. 

In April, over 80% of the capital city of Port-au-Prince was controlled by gangs. In that environment, a transitional council was sworn in with the goal of stabilizing the country enough to hold elections. The council appointed Michel Patrick Boisvert as interim prime minister on April 26, then appointed Garry Conille as Prime Minister on June 1. Conille has been UNICEF’s regional director for Latin America and the Caribbean since January 2023, and from October 2011 to May 2012 served as Haiti’s prime minister. Days after his appointment, Conille was hospitalized for unknown reasons.

Meanwhile, gangs still control most of the capital, roughly half a million people have been internally displaced and over 2,500 others have died in Haiti as a result of the unrest, according to reporting from the Associated Press. Additionally, the first deployment of 200 police officers from Kenya was delayed for “logistical issues,” with one senior official saying the bases where the Kenyan officers would operate from were still only 70% completed. 

The transnational committee has committed to holding Haitian elections no later than February 2026. Haiti has not had a president since 2021, and its last election was in 2016.

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Under the radar.

A record number of NATO’s 32 members are meeting the military alliance’s defense-spending target this year, according to NATO Secretary General Jens Stoltenberg. 23 NATO members are spending at least 2% of their gross domestic product on defense, a fourfold increase from 2021, when only six nations were meeting the goal. The surge in spending is spurred by a fear that Russia’s war in Ukraine indicates Vladimir Putin’s broader regional ambitions. Poland (spending more than 4%) and Estonia each border Russia, and both are spending a larger percentage of their GDP on national defense than the U.S. The Associated Press has the story


Numbers.

  • 17. The number of U.S. states (including Washington, D.C.) with laws banning the use of bump stocks: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Rhode Island, Vermont, Virginia, and Washington.
  • 4. The number of U.S. states with laws regulating the use of bump stocks: Colorado, Indiana, Louisiana, and Mississippi. 
  • 400-800. The number of rounds per minute that a semi-automatic weapon modified with a bump stock can fire, compared to 700-950 rounds per minute for a fully automatic weapon. 
  • 520,000. The estimated number of bump stocks in circulation in the U.S. when the ATF issued its ban in 2017, according to court records. 
  • 72%. The percentage of registered voters who supported a bump-stock ban in October 2017, shortly after the Las Vegas mass shooting, according to a Morning Consult poll. 
  • 79%. The percentage of Democrats who favored a bump-stock ban in 2017. 
  • 68%. The percentage of Republicans who favored a bump-stock ban in 2017. 
  • 81%. The percentage of Americans who supported banning bump stocks in March 2018, shortly after the Parkland school shooting, according to an NPR/Ipsos poll.

The extras.

  • One year ago today we had just published a Friday edition on why Trump and Biden must debate their primary opponents.
  • The most clicked link in yesterday’s newsletter was, once again, the link to our partners at DailyChatter.
  • Nothing to do with politics: Photos of the Boston Celtics winning the NBA title last night.
  • Yesterday’s survey: 836 readers answered our survey asking what the appropriate level of access for mifepristone is with 44% saying as it currently is (through telehealth appointments and deliverable by mail). “I've taken it (once). It definitely requires a conversation with a healthcare professional but I see no reason why that has to be in person. Keep it accessible,” one respondent said.

Have a nice day.

65-year-old Bo Petterson from Washington state is enjoying an unlikely claim to fame on TikTok thanks to his youngest daughter, Emily. At first, she just asked him for a piece of advice to record and put online. Then, when Bo’s advice on how to back up a trailer received over 5,000 comments, she kept hitting record. On the Instagram account ‘dadadvicefrombo,’ he now shares fatherly wisdom as well as practical lessons (like how to change a spark plug or hang something heavy on a wall), with many commenters who had lost their fathers saying they found comfort in Bo’s posts. And when Emily needed medical treatment for an illness, the account’s followers stepped up with donations to reciprocate her positivity. Nice News has the story.


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.