Editorial: U.S. Supreme Court ‘ducks’ reason on bump stocks

By The Herald Editorial Board

Under the interpretation of the U.S. Supreme Court’s conservative majority, a duck is not a duck, even when it functions as a duck; and the same goes for bump-stock-equipped firearms, even when they can spit out up to 800 rounds of lethal ammunition with one pull of the finger against a trigger.

That analogy courtesy of Justice Sonia Sotomayor in her dissent from the bench, in Friday’s 6-3 decision by the court that struck down a regulation by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that an after-market device called a bump stock, which effectively turns a semi-automatic firearm — which normally allows only one shot for every pull of the trigger — into a machine gun capable of continuous and rapid fire.

“The majority,” Sotomayor wrote, “puts machine guns back in civilian hands.”

The ATF adopted the regulation in 2017, at the request of then-President Trump, following the mass shooting in Las Vegas, in which a gunman smuggled semiautomatic firearms, each equipped with a bump stock device, into a room on the 32nd floor of a hotel and rained down fire on a country music festival outside the hotel. Fifty-eight people were killed that night, and two of the more than 500 injured died later in a hospital.

It’s not as if, the ATF crafted legislation absent of direction from Congress. Just the opposite, Sotomayor wrote:

“Recognizing the creativity of gun owners and manufacturers, Congress wrote a statute ‘loaded with anticircumvention devices,’” in the 1934 National Firearms Act, the justice wrote. “The definition of ‘machinegun’ captures ‘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.’”

But the majority option, written by Justice Clarence Thomas, was more interested in striking a blow against a regulatory agency — and probably not the last such blow this term — than in the likely result of reopening access to a device that can be easily exploited for mass murder and really has no other function; not for hunting and not for those seeking personal protection.

Thomas sets his argument on those last five words: “single function of the trigger,” insisting Congress wasn’t describing the act of a finger pulling a trigger. Instead, he goes into a lengthy explanation, including several diagrams, to show that it’s the internal mechanism of bump stock and firearm that’s responsible for repeatedly pulling the trigger, not the human.

Writes Thomas: “(O)nce a shooter pulls the rifle’s trigger a single time, the bump stock harnesses the firearm’s recoil energy in a continuous back-and-forth cycle that allows the shooter to attain continuous firing. But, even if one aspect of a weapon’s operation could be seen as ‘automatic,’ that would not mean the weapon ‘shoots … automatically more than one shot … by a single function of the trigger.” (Emphasis his.)

So, at least after the first round, guns do kill people?

Not to worry, writes Justice Samuel Alito in a concurring opinion; “There is a simple remedy for the disparate treatment of bump stocks and machine guns. Congress can amend the law.”

Yes, they can. Will, is another question.

Congress was able to pass significant firearms safety legislation last year — which included tougher background checks on younger buyers and red-flag provisions to remove guns from those considered a threat — but that law required the massacre of 19 elementary school students and two teachers in Uvalde, Texas, in 2022 to pressure it into action. Prior to that, it had been 29 years since the last major passage of gun safety laws.

Not that some members of Congress haven’t tried. Legislation to regulate bump stocks was proposed last year and was sponsored by 146 House members, all of them Democrats, including Reps. Rick Larsen and Suzan DelBene. A new House bill was filed last week.

For Washington state residents, there’s some cold comfort in the fact that the Supreme Court ruling has no effect on the state law passed in 2018 and in effect since 2019 that outlawed bump stocks here. Fourteen other states also have bans against bump stocks, but the balance — including Washington’s immediate neighbors, Oregon and Idaho — do not, leaving a patchwork of legislation that can now be easily ignored by any who would seek to bring a firearm with a bump stock into this state.

The Supreme Court has one other significant firearm case ruling due within coming days: U.S. v. Rahimi regards a Second Amendment challenge to federal law employed by state courts that bars possession of firearms by those subject to domestic violence restraining orders.

Unlike the bump stock decision, the Rahimi case addresses a Second Amendment issue that could turn on the court majority’s preference to rule on gun rights by testing laws against “history and tradition,” as it did in New York Rifle & Pistol Association v. Bruen.

In that case, the court declared that state and federal gun laws must comply with an originalist interpretation of the U.S. Constitution and the Second Amendment that focuses not on public safety but on the law’s consistency “with the nation’s historical tradition of firearm regulation,” as the Framers understood it, requiring that legislation could only be based on a similar 18th-century law.

Under Bruen’s test, one legal analyst wrote, the government during oral argument in the Rahimi case was unable to show a single law written before the 20th century that would bar someone convicted of a violent crime from owning a firearm.

A court majority little concerned with the consequences of allowing the ownership of bump stocks may not see the need to remove firearms from those with a record of domestic violence.

We’re about to find out.