The “bump stocks” loophole that could arm mass shooters with makeshift automatic rifles

In 2017, a single gunman opened fire at a country music festival in Las Vegas from a hotel room window overlooking the festival. The carnage was incredible. Sixty people died, and hundreds more were injured.

One of the reasons this shooting is so deadly is because the shooter uses a device known as a “bump stock”, which effectively allows any available semi-automatic rifle to mimic an automatic weapon (the term “semi-automatic” refers to a gun that expels one bullet for each pull). triggers). Thanks to this device, the Las Vegas shooter can fire about nine shots per second.

In response to this shooting — the largest mass shooting in recent U.S. history — and others, even the Trump administration has concluded that bump stocks are intolerable. Federal law makes it a crime to own a “machinegun,” and a Justice Department rule that took effect in 2019 clarifies that weapons modified by bump stocks to allow automatic fire qualify as machine guns.

But now, that rule is in great danger. On Friday, the United States Court of Appeals for the Fifth Circuit issued a ruling striking down the Trump-era rule. Given the political leanings of the Fifth Circuit — the Court routinely hands down legally dubious decisions that advance right-wing policy goals — this result is not surprising. However, while many of the Fifth Circuit’s reasons are difficult to defend, one of the arguments against banning bump stocks is valid.

As the Fifth Circuit notes in its Cargill v. Garland opinion, moreover, other judges are starkly divided over whether federal law allows the Department of Justice to bump stocks. Ten years ago, this would have been a slam dunk case for the ban. While the law governing the machine gun can be read in two ways, the Court’s decision Chevron v. Natural Resources Defense Council (1984) typically requires judges to defer to a federal agency’s interpretation of a statute when the statute is ambiguous.

But such decisions Chevron – indeed, virtually all the decisions calling in justice to suspend people other than themselves – very out-of-favor in this Supreme Court. And, when Chevron technically not yet overruled, the Court’s six Republican appointees have generally abandoned it. (One member of the Court, Justice Neil Gorsuch, has argued that Chevron does not necessarily apply specifically to criminal statutes, but his opinion makes this argument not combined with other justices.)

And that means the legality of bump stock bans is highly uncertain, and will almost certainly be decided by a Supreme Court hostile to gun laws and regulatory actions by federal agencies like the DOJ.

The uncertain legality of the bump stock ban, briefly explained

Most automatic weapons use an internal mechanism to repeatedly fire the weapon for as long as the shooter holds the trigger. This weapon is clearly illegal under the federal ban on machine guns.

Bump stocks, by contrast, are external devices that use the rifle’s own recoil to repeatedly pull the trigger, enabling a semi-automatic weapon to fire nearly as quickly as a traditional automatic weapon. Essentially, they cause the trigger of the gun to buck against the shooter’s finger as the recoil of the gun causes the idiot to go back and forth, repeatedly “bumping” the trigger and causing the gun to fire again and again.

This particular mechanism is important because the federal machine gun ban can be read to eliminate such devices, which repeatedly pull the gun’s trigger. The law prohibits weapons that “automatically” fire more than one shot “with a trigger function.”

Judges across the country have been divided on how to read this statute. A majority of Fifth Circuit judges, the majority of whom are appointed by Republican presidents, claim the Cargill that bump stocks successfully evaded the Federal machine gun ban. Although the justices acknowledged that bump stocks allow semi-automatic weapons to fire rapidly, they argued that “the fact remains that only one bullet is fired each time the shooter pulls the trigger.”

This is one possible reading of the federal law, but, as other courts have pointed out, the law can be read differently. As the DC Circuit explained in Guedes v. ATF (2019), the legal reference to “a single function of the trigger” may be read to mean “a single trigger pull from the shooter’s perspective.” In this reading of the statute, a bump stock is an illegal machine gun because “the shooter engages in pulling the trigger with the trigger finger, and that action, through the operation of the bump stock, produces a continuous stream of fire. The finger remains unreleased.”

The Fifth Circuit, for its part, spent much of its opinion arguing that the statute is unambiguous, and can only be read in the way that most of its judges do. But that argument is untenable. The fact that so many federal judges do not show reading this statute – and that fact the Trump administration believe that an alternative reading of the statute is, at the very least, sufficient — should give the Fifth Circuit pause before claiming to find the only way to read this vague law.

At Chevron, moreover, when the federal law is ambiguous, the court usually has to defer to the Federal agency which reads that law. Thus, in this case, the Fifth Circuit must defer to the Justice Department’s conclusion that the ambiguously drafted machine gun ban does not overreach.

However, when the Court has not explicitly denied Chevronthe most recent Supreme Court decision governing federal agencies’ interpretation of federal law is inconsistent with Chevron and seem to reject the proposition that the court should defer to federal agencies — at least on matters the Court considers to be of “substantial economic and political importance.” Some members of the Court have gone further, requesting that Chevron to think again.

However, one problem with this approach is that the machine gun ban is inherently ambiguous. So, unless the court defers to the Justice Department’s interpretation of the law, it’s unclear how it should read the statute. And that means, without Chevronthere is considerable uncertainty about whether the stock bump is legal or not.

The strongest argument against banning bump stocks

Although most of the Fifth Circuit’s opinion is based on the unwarranted conclusion that the machine gun statute is unclear, the court devoted several pages to a more defensible argument – that the federal statute should be read to eliminate bump stocks because, as the Supreme. Court held at Rewis v. United States of America (1971), “ambiguities about the ambit of criminal statutes should be resolved by opting for lenity.”

That is, when the criminal law can be read in various ways, some of which will interpret the defendant’s actions as illegal and some of which will not, the tie must go to the defendant. As a general rule, people should not be fined or sent to prison because of ambiguous laws that do not sufficiently explain what kind of illegal behavior they are.

The federal ban on machine guns carries a criminal penalty of up to 10 years. And, though the Cargill the case does not involve criminal prosecution – the plaintiff is a gun owner who previously owned a bump stock but surrendered after the DOJ announced the ban – the Fifth Circuit’s decision will prohibit the government from prosecuting anyone caught with a bump stock.

But as Judge Stephen Higginson, who was appointed by Obama, wrote in him Cargill dissent, there are some reasons to doubt whether the rule of lenity should apply to the bump stock ban. One thing, as the Supreme Court said Barber v. Thomas (2010), “the rule of lenity only applies if, after considering the text, structure, history, and purpose, there remains ‘ambiguity or uncertainty in the statute,’ such that the Court must only ‘guess what Congress intended. .'”

Perhaps it would be better if courts read the lenity rule expansively to prohibit criminal statutes from being enforced if they are at least ambiguous, but this is certainly not the approach the Fifth Circuit has taken in its previous decisions. At United States v. Palomares (2022), for example, the Fifth Circuit labeled the federal law “confusing” before providing information to criminal defendants.

It is conceivable, in other words, that the highly ideological Fifth Circuit acted in bad faith, imposing a permissive rule on gun owners that would not apply to other criminal defendants. This certainly isn’t the first time a Fifth Circuit judge has bent the rules to get a result they like.

However, despite the problems with the Fifth Circuit’s leniency analysis, this approach has clear virtues. without Chevronthe court must rely on it something to determine how the ambiguous statute should be read, and the rule of expansive lenity, at least, enables the court to make this determination in criminal cases.

If the rule is to be taken seriously, it should apply to all criminal defendants. And it’s not just for defendants accused of violating gun laws — or other laws that Republicans typically dislike.