Clarence Thomas's disgracefully unserious bump stock opinion
It reads like a newspaper comment section after every mass shooting.
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It’s mid-June, which means we’re in the midst of our now-annual deluge of bad Supreme Court decisions.
With the nation’s highest court in the tight grip of six hard-right justices, the first month of summer can feel like the worst month of the year. While we’re still waiting to hear about whether Donald Trump has absolute immunity from criminal liability and whether the administrative state will continue to exist, among several other blockbuster cases remaining, we learned last week that the Court’s right-wing majority is now even further to the right than the Trump administration when it comes to guns.
In Garland v. Cargill, a 6-3 opinion authored by Justice Clarence Thomas — who apparently made time in his busy schedule spent traveling on a billionaire’s dime — the Court threw out a Trump-era rule that had banned bump stocks in the wake of the October 2017 shooting in Las Vegas. It’s the latest in a near-unbroken streak of victories for the gun lobby now that conservatives control the federal courts.
But it’s not just a case about guns — it’s also one that shows just how far the balance of power between the branches of government has been drastically tilted in favor of the courts.
Thomas the troll
Before dissecting exactly how bad this decision is, it’s worth taking a moment to remember the awful breadth of the Las Vegas shooting. The details get muddy over time in a country where we’ve had over 3,000 additional mass shootings since 2017, but the Las Vegas shooter killed 60 people and wounded more than 500.
America’s spectacular commitment to the technology of murder allowed the shooter to fire 1,057 rounds in a mere 11 minutes. That deadly efficiency was thanks to a then-perfectly legal bump stock, an after-market modification that uses the gun’s recoil to bump the gun’s trigger against a finger, making it literally effortless to fire hundreds of rounds per minute after pressing the trigger just once.
The Las Vegas shooting was so jaw-dropping, even by American standards, that it spurred even the Trump administration, which otherwise functioned like a wholly-owned subsidiary of the National Rifle Association, to take action. In 2018, the Department of Justice issued a regulation that brought bump stocks under the statutory definition of “machine guns” because the shooter can fire continuously after a single trigger pull.
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Fully automatic machine guns are banned by federal law — sort of. They’re illegal to manufacture, but any machine guns lawfully acquired before 1986 can be transferred with the approval of the Bureau of Alcohol, Tobacco, Firearms, & Explosives. By including bump stocks under the machine gun definition, the Trump administration was able to ban them. Handling it through the issuance of a rule rather than a bill also meant that Republican legislators weren’t forced to cast a public vote on a gun control measure in the wake of the 2018 Parkland shooting.
And therein lies the problem. Regulations aren’t laws. They are, instead, an executive branch agency’s interpretation of a governing law. However, regulations are a necessary part of a functioning democracy. Congress can’t plan for every eventuality in passing a law, nor are members of Congress subject-matter experts on every possible topic. Agencies are just the opposite. They’re stuffed with technical and scientific experts and can expand and change regulations as knowledge about a topic evolves.
But the right-wingers on the Supreme Court are not fans of regulations, and it is likely that before the end of the month they will have issued a ruling that radically undermines the administrative state’s ability to interpret laws and issue regulations.
In addition, Congress has been gridlocked for decades, leaving the federal courts as the branch calling all the shots.
Which brings us to Thomas’s bump stock opinion, which reads like a newspaper comment section after every mass shooting, where gun enthusiasts engage in hyper-technical explanations of how AR-15s aren’t actually assault weapons.
The majority decision rests on Thomas’s tortured explanation of the phrase “a single function of the trigger,” as the statutory definition of a machine gun is that it must fire multiple rounds with a single trigger pull. According to Thomas, using a bump stock, which leaves the trigger finger in place after the shooter fires but then uses the gun’s recoil to hammer the trigger against a stationary finger far faster than someone can pull a trigger, is not “a single function of the trigger.”
Thomas embedded a few graphics into his majority opinion to show how a trigger works with a bump stock, an approach that Dahlia Lithwick over at Slate accurately characterized as “I know everything, here’s a Peanuts comic strip.” It’s distressing to watch Thomas actively substituting his layman’s understanding of how a bump stock works for that of the firearms experts of the ATF. Worse, Thomas's material came straight from an amicus brief filed by the Firearms Policy Coalition (FPC) in support of the gun store owner, Michael Cargill, the plaintiff in the case.
The FPC is much further to the right than even the National Rifle Association. They’re not really big fans of democracy and are known for deploying violent rhetoric in support of their worldview that the only freedom that matters is the freedom to own more guns. In the wake of this decision, they’re already over on X bragging about the other ATF regulations they plan on getting overturned.
So, to sum up: the detailed, years-long exploration of the intricacies of the governing law and the technical functions of bump stocks undertaken by the ATF carries no weight, but some pretty graphics from a partisan gun rights group are a truth so solid they can support a whole Supreme Court opinion.
This would be much more shocking save for the fact that the right-wingers on the Court are no longer really tethered to reality. They’re comfortable with opinions based on incorrect or mischaracterized facts. They’re comfortable with using junk science to overturn the right to abortion.
Why not outsource all the hard work of legal analysis to hard-right partisans so you can just rubber-stamp conservative outcomes?
The death of expertise
It’s tempting to say this isn’t a case about the Second Amendment and instead revolves around the majority’s interpretation of statutory language. But that’s only partially true.
This case wouldn't exist had we not been living through years of the Supreme Court striking down gun restrictions, culminating in the Bruen decision two years ago. There, writing for the conservative majority, Thomas invented an entirely new legal test regarding guns, holding that the state cannot impose any gun restrictions that don’t fall within the “historical tradition of firearm regulation.”
Of course, since there were no machine guns and bump stocks at the time of the founding of the nation, this is inherently an incoherent approach. Following Bruen, federal courts have struck down dozens of gun laws, including one prohibiting the sale of assault weapons and another that barred people from scratching the serial numbers off of guns. Allowing people to remove serial numbers from guns means that law enforcement can’t trace weapons. However, there were no serial numbers in the late 1700s, so that law had to go.
Only when you already have a maximalist view of the Second Amendment, one which treats even the most meager common-sense regulation as an affront to liberty, can you can you get this current case in front of the Court.
In a functional society with a legally sound reading of the Second Amendment, survivors of the nation’s deadliest shooting wouldn’t be forced to watch Clarence Thomas play abstract word games over the worst night of their lives, declaring with callous indifference that “nothing changes when a semiautomatic rifle is equipped with a bump stock.” Sure, except for the part where a shooter can now get 400 to 800 rounds off per minute without ever flexing their trigger finger again, which is anywhere from double to quadruple the 180 rounds per minute skilled sport shooters can manage when they have to pull the trigger each time.
Justice Sam Alito’s concurrence was also predictably smug, essentially saying that now that his branch of government has utterly abandoned itself to a deadly Second Amendment maximalism, Congress can fix it.
“Congress can amend the law-and perhaps would have done so already if ATF had stuck with its earlier interpretation,” wrote Alito. “Now that the situation is clear, Congress can act.”
Bills to ban bump stocks were introduced in 2017, shortly after the Las Vegas shooting. Two different bills were introduced in 2019, in 2021, in 2022, and in 2023 — and that’s just in the House. But despite overwhelming public support for a bump stock ban in 2017 after the Las Vegas shooting and after the Parkland shooting in 2018, Congress has failed to ban them. And Republicans are signaling that they have no interest in passing new gun control laws anytime soon.
Pretending that Democrats in Congress haven’t been trying, desperately, to pass laws that might help prevent future mass shootings is Peak Alito, made even worse by his unfounded assertion that somehow Congress would have acted if only the ATF hadn’t amended a regulation.
This decision is bad on its face and means nothing more and nothing less than that the Supreme Court wants more people to die in mass shootings, as Elie Mystal wrote over at The Nation. But it’s also bad as a portent of things to come — a conservative Court with no regard for the expertise of specialized government officials but with infinite reverence for the most partisan right-wing ideas, whether those ideas are grounded in reality or not. The Court’s conservative majority has left both the law and the facts behind, and we’re all the worse for it.
That’s it for today
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Thanks for reading.
And yet the Right will rage about "crime in the streets" and "getting shot" all the time....yet they think guns should be flowing free like water. It's maddening.
As you stated, the Supreme Court's 2nd Amendment decisions are horrid, especially the way they contort themselves so there are no limits on guns. I suspect they'll allow those who have committed domestic violence to own weapons because, even though women have no right over their own bodies, we have to allow men to have guns. I also agree with your statement about their refusal to rely on experts, a definite Republican position, when they disagree with the experts. As you also stated, "Congress can’t plan for every eventuality in passing a law, nor are members of Congress subject-matter experts on every possible topic." One must have humility to admit they aren't subject-matter experts and the conservative majority has no humility; humility is also tied to wisdom and this court is lacking in that area too.