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Bump stocks perfectly legal – SCOTUS



The United States Supreme Court today settled the often confusing issue of “bump stocks,” or rapid-fire accessories for semiautomatic rifles. The infamous Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE, or ATF) made a rule calling them machineguns. This was actually a convenient way to ban the accessory, on the theory that it turned a semiautomatic rifle into a machinegun. The Supreme Court, with Clarence Thomas writing for the majority, said the accessory did not a machinegun make. Along with the Liberal Bloc, the usual suspects screamed that the Court “want[s] the violence.” In fact the court cast a vote against the expanded administrative state, along with a vote for the Second Amendment.

What are bump stocks?

Cullen Linebarger offered this summary in The Gateway Pundit – and, of course, the original opinion is also publicly available.

The syllabus gives an excellent summary of the issues of the case, with crucial definitions:

The National Firearms Act of 1934 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.” 26 U. S. C. §5845(b). With a machinegun, a shooter can fire multiple times, or even continuously, by engaging the trigger only once.

This capability distinguishes a machinegun from a semiautomatic firearm. With a semiautomatic firearm, the shooter can fire only one time by engaging the trigger. Using a technique called bump firing, shooters can fire semiautomatic firearms at rates approaching those of some machineguns. A shooter who bump fires a rifle uses the firearm’s recoil to help rapidly manipulate the trigger. Although bump firing does not require any additional equipment, a “bump stock” is an accessory designed to make the technique easier. A bump stock does not alter the basic mechanics of bump firing, and the trigger still must be released and reengaged to fire each additional shot.

That’s the key. A machinegun is a fully automatic rifle, that uses the energy of the explosive discharge to chamber each succeeding round. A soldier – or bad actor – firing a fully automatic rifle, fires continuously as long as he keeps the trigger pressed. That can waste a great deal of ammunition, unless one wants to lay down suppressive fire – firing to force the enemy to keep his head down. A well-trained infantryman can last a lot longer in battle if he pulls the trigger with each round. When he “bump fires” a gun, he can fire faster. But that is not the same as spraying an area with bullets just by waving it back and forth. Bump stocks make bump firing easier – but still require you to release, then pull, the trigger for each round.

The Las Vegas shooting

For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) consistently took the position that semiautomatic rifles equipped with bump stocks were not machineguns under §5845(b). ATF abruptly changed course when a gunman using semiautomatic rifles equipped with bump stocks fired hundreds of rounds into a crowd in Las Vegas, Nevada, killing 58 people and wounding over 500 more. ATF subsequently proposed a rule that would repudiate its previous guidance and amend its regulations to “clarify” that bump stocks are machineguns. 83 Fed. Reg. 13442. ATF’s Rule ordered owners of bump stocks either to destroy or surrender them to ATF to avoid criminal prosecution.

In 2017, Stephen Paddock fired hundreds of rounds into a crowd at a music festival on the Las Vegas strip. As the syllabus reveals, he killed 58 people and wounded 500 more, before police cornered him on the 32nd floor of the Mandalay Bay Hotel and Casino across the street from the festival. Saliently, he used bump stocks on his rifles to make it easier to kill people. Now he’s dead – and no one knows why he committed this atrocity – the worst mass shooting in American history.


Of course the usual gun-grabbing Members of Congress proposed laws to outlaw bump stocks. None passed. But ATF was already working on a new rule to say that bump stocks were machineguns. Sen. Dianne Feinstein (D-Calif.), who notoriously wanted to disarm the American populace while she lived, warned ATF that they lacked the statutory authority to make any such rule.

Nevertheless ATF finalized their anti-bump-stock rule in 2018. They warned everyone who owned bump stocks: turn them in or destroy them, or we will prosecute.

A citizen challenges the rule

Citizen and Texas Resident Michael Cargill turned his bump stocks in, then immediately sued to get them back. The District Court for the Western District of Texas held a bench trial, then entered a judgment for ATF. So Cargill appealed. By bad luck of draw, he drew a three-judge panel that affirmed the District Court.

So he took a wild chance and petitioned for a rehearing en banc – and got it. The entire Fifth Circuit found for Mr. Cargill. They said the statutory definition of a machinegun was ambiguous – and when a law or regulation is ambiguous, the regulated party gets the benefit of the doubt.

As it happens, eight of the judges said bump stocks unambiguously do not machineguns make. One using a rifle with a bump stock still has to work the trigger for each round. Bump stocks do not change that.


Nevertheless, new Attorney General Merrick Garland petitioned for Supreme Court review in 2022. Given the history Justice Clarence Thomas made with New York State Rifle and Pistol Association v. Bruen, he shouldn’t have.

Clarence Thomas: bump stocks do not qualify as machineguns!

Justice Thomas said unequivocally: bump stocks do not enable a semiautomatic rifle to fire fully automatically. A shooter must still engage the trigger for each round. On that ground alone, ATF had no authority to classify bump stocks as machineguns, or machinegun accessories. Senator Feinstein had been right: it would take an Act of Congress to do that.

Thomas included a set of elaborate but still easy-to-read diagrams showing the trigger action for an Armalite AR-15 rifle. That’s the most popular semiautomatic rifle in America today – and the one that Stephen Paddock used on his murderous rampage. Using those diagrams, Thomas patiently showed why an AR-15 is a semiautomatic rifle – requiring a trigger pull for each round.

Then he showed that bump stocks do not change the trigger action. All they do is enable the shooter to make the next trigger pull somewhat faster.

But don’t bump stocks permit a shooter to keep his finger in one place, so that in effect he need pull the trigger only once? That doesn’t matter. What matters is that the shooter must still re-engage the trigger to fire the next round. Bump stocks make that easier, but do not make that step unnecessary. So says the statute, and the statute defines the regulatory agency’s authority.


Other logical inconsistencies

Justice Thomas debunked several other propositions ATF made (noting also that Justice Sonia Sotomayor, in dissent, advanced the same propositions):

  • ATF’s Rule defines a “function of the trigger” as either a pull or an analogous motion. But that would mean that every bump during bump firing would qualify as such a “function.”
  • If a shooter “need only pull the trigger and maintain forward pressure” to fire continuously, then he should be able to do that without a bump stock.
  • Even if bump stocks do enable continuous fire, such fire cannot be automatic. The shooter must hold his hands just so to keep the fire going.
  • Even if maintaining a trigger pull also constitutes “continuous human input,” the statute does not allow for that consideration.

Finally, Thomas squarely addresses another argument ATF made: a presumption against ineffectiveness. Would Congress write an ineffective law? Actually, though Thomas didn’t mention this, the Antisemitism Awareness Act might be an ineffective law. In any case, merely because the law against machineguns doesn’t cover bump stocks, doesn’t make it totally useless. Traditional machineguns – like the Avtomat Kalashnikova Model 47 – remain unlawful. Furthermore, a shooter with sufficient skill can fire an AR-15 just as rapidly without a bump stock as with one.

Justice Samuel A. Alito offered a three-paragraph concurrence to say one thing: if Congress wants bump stocks gone, let Congress outlaw them.

The dissent: returning to a tired old theme

Justice Sonia Sotomayor wrote the dissent. As Justice Thomas noted, she largely restated ATF’s arguments against bump stocks as if they were her own. But that kind of soft plagiarism seems to be par for the course, and Thomas did not remark upon it.

What makes Sotomayor’s dissent egregious is that, as usual, she totally ignores the purpose of the Second Amendment. Her history of firearms in America before the National Firearms Act illustrates the gun-grabber mind-set perfectly:

Machineguns were originally developed in the 19th century as weapons of war. See J. Ellis, The Social History of the Machine Gun 21–45 (1986) (Ellis). Smaller and lighter submachine guns were not commercially available until the 1920s. See Brief for Patrick J. Charles as Amicus Curiae 5 (Charles Brief ). Although these weapons were originally marketed to law enforcement, they inevitably made it into the hands of gangsters. See id., at 8–9; Ellis 149–165. Gangsters like Al Capone used machineguns to rob banks, ambush the police, and murder rivals. See Ellis 153–154, 157–158. Newspaper headlines across the country flashed “‘Gangsters Use Machine Guns,’” “‘Machine Gun Used in Bank HoldUp,’” and “‘Machine Gun Thugs Kill Postal Employee.’” Charles Brief 9.

Oh, horror! Bad guys with guns! We must do something! But the country did the wrong something. CNAV holds that the National Firearms Act of 1934 is unconstitutional on its face.


A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Amendment II

That text admits of one interpretation only. A citizen in good standing may arm himself at least as well as, if not better than, an infantry soldier. Furthermore, the correct counter to a bad guy (or gal) with a gun – even a machinegun – is a preponderance of good guys/gals with such guns. They need not even be machineguns. Any weapon will do, so long as one using it can stop the shooter and cut his spree short.

The National Firearms Act was written for sissies, who run crying to law enforcement instead of defending themselves. Sonia Sotomayor continues the dubious process of the sissification of America. The only reason that Act still stands after this case, is that the merits did not reach that point.

The sissies cry out against those bogeyman’s bump stocks

To correct Cullen Linebarger’s report, Sonia Sotomayor’s dissent actually is tame, in comparison to some of her previous behavior. She made the same errors of logic the ATF made, but did so in a respectful manner. This was not a repeat of her downright rude dissent in 303 Creative v. Elenis, for example.

But the X users who reacted to the Court’s decision, definitely were rude:

Neither side compensation nor bonus, sir – but merely a strict construction of statute.


Also wrong. A similarly equipped person among Stephen Paddock’s targets could have stopped him before he killed 58 people.

Your understanding does not govern here; statute does. In any case, Justice Sotomayor merely repeated the ATF’s arguments, and Justice Thomas found them just as wrong.

The other posts Cullen Linebarger found are not worth mentioning, much less embedding.

In any case, the National Firearms Act of 1934 – and U.S. v. Miller, which upheld it – badly need a challenge. The only reason the Supreme Court decided it as they did is that Miller neither showed up nor paid a lawyer to show up. In other words, the National Firearms Act survives by default.

Someday, someone will bring a case to challenge it properly. This was not that case, because even that Act did not forbid bump stocks, nor let ATF do that. What needs to happen, is for an honorably discharged veteran to defend his right to keep his government-issue AR-18 or M-16.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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