Supreme Court hears challenge to federal bump stock ban

The Supreme Court’s conservatives pressed the Biden administration Wednesday to justify a federal ban on bump stocks, a device that can convert a semi-automatic rifle into a weapon that can fire far more rapidly.

But after 90 minutes of argument in the high-profile dispute, it appeared that the court was deeply divided over whether or not to strike it down.

Here are the key things to know:

Read more from the takeaways of the hearing.

Several conservative Supreme Court justices indicated Wednesday they are concerned with the federal ban on bump stocks, a device that allows semi-automatic weapons to fire more like a machine gun.

Justice Brett Kavanaugh said he was worried about Americans being prosecuted under a ban they aren’t aware of. And Justice Amy Coney Barrett said that while she was “intuitively” concerned about the bump stock devices, she questioned why the issue wouldn’t be better handled by Congress.

That was a theme that the justices returned to repeatedly, underscoring a push by the court’s conservatives to limit the power of federal agencies in recent years.

Meanwhile, the court’s three liberals focused on the idea that rifles equipped with bump stocks effectively work like machine guns and can do similar damage if misused.

“The entire point of this device,” Justice Elena Kagan said, is that the shooter pushes forward on the weapon while shooting and “a torrent of bullets shoot out.”

Justice Elena Kagan made a broader point during the arguments about how justices should interpret laws when they’re not explicitly clear.

“I view myself as a good textualist,” Kagan said, referring to the idea of reading statutes first for the meaning of the words rather than trying to glean the intent of the lawmakers who passed the legislation.

And, “at some point,” she said, “you have to apply a little bit of common sense.” For example, the law in question that bans machine guns, Kagan said, “comprehends” a weapon that “fires a multitude of shots with a single human action.”

Liberal Justice Elena Kagan said the federal law at the center of the case was written such that “small adjustments of a weapon” would not allow for crafty exceptions to it.

“This statute is loaded with anti-circumvention devices,” Kagan told Jonathan Mitchell, an attorney representing the challenger to the federal bump stock ban.

“And in all kinds of ways, you’re accepting of that and saying, ‘yes, you can’t circumvent it by that. You can’t circumvent it by non-conventional triggers,’” Kagan continued. “’But you can circumvent it through this one mechanism.”

Mitchell said he’s not trying to get around the law.

“I’m not conceding that you can circumvent the statute, Justice Kagan, we’re just interpreting the word ‘trigger,’ which is a term that appears in the statutory text and it has to be interpreted,” he said.

Justice Brett Kavanaugh, a conservative who often sits at the ideological center of the court, is raising concerns about people being prosecuted under the ban without even knowing it exists.

“Even if you’re not aware of the legal prohibition, you can be convicted,” Kavanaugh pressed the attorney representing the Biden administration. “That’s going to ensnare a lot of people who are not aware of the legal prohibition.”

The government previously estimated that as many as a half million bump stocks were sold between 2011 and 2018. Brian Fletcher, representing the Bureau of Alcohol, Tobacco, Firearms and Explosives, said the government took all steps it could to advise Americans about the ban, including publishing the proposed rule in the Federal Register.

That prompted a joke from Neil Gorsuch about Americans cracking open the Federal Register “next to the fire and the dog” to read about federal regulations.

Justice Neil Gorsuch is pressing the Justice Department on a key point raised by those challenging the ban: Why not just let Congress handle a ban on bump stocks?

“I can certainly understand why these items should be made illegal, but we’re dealing with a statute that was enacted in the 1930s,” Gorsuch said. “And through many administrations, the government took the position that these bump stocks are not machine guns.”

It is true that the Bureau of Alcohol, Tobacco, Firearms and Explosives had repeatedly interpreted the law banning machine guns to not include bump stocks. Gorsuch called attention to remarks from the late California Democratic Sen. Dianne Feinstein, an ardent gun control advocate, who suggested the administration couldn’t ban the devices on its own.

“I believe there are a number of members of Congress … who said that this administrative action forestalled legislation that would have dealt with this topic directly,” Gorsuch said.

Conservative Justice Amy Coney Barrett said she is “sympathetic” to the Biden administration’s arguments in defense of the bump stock ban, but signaled she has concerns about a federal agency issuing it instead of Congress.

But, she added, that raised a question of why Congress didn’t pass legislation “to make this covered more clearly.”

Part of Wednesday’s arguments are expected to be over whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority in 2018 by reclassifying bump stocks as “machine guns” under the National Firearms Act.

Starting off the arguments, several of the court’s conservatives asked very specific questions about how bump stocks work — and how they differ from a machine gun.

Thomas appeared to be trying to a draw a distinction between a machine gun and bump stock, noting that there is an extra step a shooter has take with bump stock to fire rapidly: Apply forward pressure on the weapon with the non-trigger hand.

The Supreme Court has started arguments in a major case challenging a federal ban on bump stocks approved by the Trump administration following a mass shooting in Las Vegas in 2017.

The devices convert semi-automatic rifles into weapons that fire at a much higher rate, several hundred rounds per minute. The gunman involved in the 2017 shooting was found with semi-automatic rifles and bump stocks.

First up to the podium is Brian Fletcher, the attorney representing the Biden administration — which is supporting the ban.

One of the interesting features of the bump stock dispute is that it was former President Donald Trump’s administration that imposed the ban. Trump has widespread support from gun rights groups, but those same groups are opposing the regulation now.

The ban was a response to the 2017 Las Vegas shooting in which a gunman armed with semi-automatic rifles and bump stocks opened fire from his hotel suite during a concert, killing 58 people and wounding hundreds more.

At the time, Trump described bump stocks as converting “legal weapons into illegal machines.” The Biden administration is now defending the regulation at the Supreme Court.

The dispute over the federal bump stock ban has a connection to some of the nation’s most infamous criminals.

After machine guns were used in grisly crimes by gangsters like Al Capone and John Dillinger, Congress enacted a law in the 1930s that regulated their ownership. The law was amended several times and by 1986, it generally banned possession of machine guns.

The Trump administration relied on that law to enact the prohibition on bump stocks. The devices, the Bureau of Alcohol, Tobacco, Firearms and Explosives reasoned, turned semi-automatic weapons into machine guns and therefore were barred under the law.

“John Dillinger used machine guns to rob banks,” the Biden administration told the Supreme Court in its appeal last year. “Pretty Boy Floyd used them to ambush policemen, and Al Capone’s henchmen used them to murder rivals in the St. Valentine’s Day Massacre.”

Though the case Wednesday doesn’t involve the Second Amendment, it once again thrusts the fraught debate over guns onto the Supreme Court’s docket as the nation continues to reel from mass shootings. 

It’s also the latest of several important cases this year that will give the court’s 6-3 conservative majority an opportunity to limit the power of federal agencies.

Opponents say tthe Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) went too far in classifying bump stocks as machine guns, especially since the agency had for years said they were not covered by the law.

Opponents of the bump stock rule are raising an issue that has emerged as a defining theme at the Supreme Court this term: How much power federal agencies have to approve federal regulations.

Last month, the justices heard arguments in a case questioning how much deference courts must give those agencies when they approve regulations based a law that’s unclear.

In a separate matter argued in November, several justices appeared skeptical of how the Securities and Exchange Commission brings some enforcement actions for securities fraud, suggesting they could pare back on that agency’s power as well.

For Michael Cargill, the thorny dispute over bump stocks is only partly about the controversial devices themselves. it’s also about what Cargill views as government overreach.

“It’s the principle of it,” said the 54-year-old Texas gun store owner who six years ago sued over a federal ban on the devices, which allow people to fire semi-automatic rifles far more rapidly. “We definitely never should have opened those floodgates in the first place.”

The Supreme Court will hear arguments Wednesday in Cargill’s case challenging the Donald Trump-era regulation that treats bump stocks as machine guns and bans Americans from owning them. The devices allow shooters to turn semi-automatic rifles into weapons that can fire several hundred rounds per minute.

Though the appeal doesn’t involve the Second Amendment, it once again thrusts the fraught debate over guns onto the Supreme Court’s docket as the nation continues to reel from mass shootings.

The ban was a response to the 2017 Las Vegas shooting in which a gunman armed with semi-automatic rifles and the devices opened fire on a concert from his hotel suite, killing 58 people and wounding hundreds more.

It’s also the latest of several important cases this year that will give the court’s 6-3 conservative majority an opportunity to limit the power of federal agencies.

Read more about what the dispute is about here.

Bump stocks are devices attached to a semi-automatic rifle that allow a shooter to significantly increase the rate of fire to something approximating a machine gun.

The devices replace a rifle’s regular stock, the part of a gun that rests against the shoulder. They allow a shooter to harness the recoil to mimic automatic firing if they hold their trigger finger in place.

With a bump stock, a semi-automatic rifle can fire hundreds of rounds per minute. 

For years the Bureau of Alcohol, Tobacco, Firearms and Explosives did not regulate the devices. That changed after a mass shooting in Las Vegas in 2017 in which 58 people were killed and hundreds more were wounded. In response, the Trump administration reclassified rifles equipped with bump stocks as “machine guns” and banned Americans from owning them.

The ATF estimated that as many as 520,000 bump stocks were sold between 2010 and 2018.

Jonathan Mitchell, a well-known conservative advocate with experience at the Supreme Court, is arguing on behalf of the Texas gun shop owner challenging the bump stock ban.

If his name sounds familiar, it wouldn’t be a surprise. Mitchell this month represented Donald Trump at the Supreme Court in the case challenging the former president’s eligibly to appear on Colorado’s ballot.

Mitchell defended Trump against claims that his actions on January 6, 2021, left him ineligible to serve under the 14th Amendment’s “insurrectionist ban.”

Mitchell has been attracted to ideologically and politically charged cases, serving as solicitor general of Texas for five years and teaching at various law schools before establishing his own one-person firm in 2018. 

He previously argued five cases at the high court, including in 2021 to support a Texas abortion ban that was a precursor to overturning Roe v. Wade.

Brian Fletcher, principal deputy solicitor general, will be arguing on behalf of the Trump administration. Fletcher has also already argued a major case this term dealing with how the Securities and Exchange Commission brings enforcement actions for securities fraud.

Read more about Mitchell’s career.