In Garland v. Cargill, a decision overruling the ATF’s updated regulation making bump stocks illegal, Clarence Thomas offers up a masterclass in facts, logic, and law, while Sotomayor’s dissent highlights the leftist reliance on feelings. The decision also hints that the Supreme Court will finally clamp down on regulatory overreach when it reconsiders the “Chevron Deference” doctrine.

In 1934, when gangsters were wandering through America with Tommy guns, Congress enacted a prohibition on privately held “machine guns”—that is, guns that require the user to press and hold the trigger only once to fire an endless cascade of bullets.

Decades later, “bump stocks” came into existence. A bump stock is an attachment that modifies semi-automatic weapons (which require a trigger pull for every bullet) by harnessing the gun’s own recoil to reload a round and pull the trigger. A bump stock can achieve speeds that mimic machine gun fire. This is how the Las Vegas shooter in 2017 was able to kill 58 people and wound 500 in a matter of minutes.

Image: United States Supreme Court (cropped) by Mr. Kjetil Ree. CC BY 3.0, 2.5, 2.0, and 1.0.

Following on the heels of the Las Vegas shooting, Congress tried, and failed, to craft legislation that would have modified the National Firearms Act of 1934 to include within its prohibitions semi-automatic weapons with bump stock modifications. Following Congress’s inability to act, the ATF stepped in to reverse its long history of refusing to identify guns with bump stocks as machine guns. Moving forward, it amended its machine gun regulations to hold that machine guns include situations in which the shooter has to pull the trigger only once, after which the bump stock takes over the trigger-pulling function at a speed much faster than a person can achieve.

The plaintiff, Michael Cargill, turned in his bump stocks and then filed suit, alleging that the ATF exceeded its authority with its revised regulation because it effectively rewrote the statute. A majority of the Supreme Court agreed. Justice Clarence Thomas wrote the opinion, and, as always, his writing is remarkable for its clarity.

The important thing to understand about Justice Thomas’s opinion is that it’s not about the Second Amendment. Instead, it’s about the fact that only Congress can legislate and that it must be understood to mean what it says. Bureaucrats cannot write regulations that add or subtract anything to a self-contained statute, especially when, as happened here, Congress intended but failed to act on the issue.  

While it’s entertaining and educational to read Justice Thomas as he explains how semi-automatic weapons work and how bump stocks augment them by artificially increasing the rate of the trigger pull speed, this is the core point in the decision:

Even if a semiautomatic rifle with a bump stock could fire more than one shot “by a single function of the trigger,” it would not do so “automatically.” Section 5845(b) [of the National Firearms Act) asks whether a weapon “shoots . . . automatically more than one shot . . . by a single function of the trigger.” The statute thus specifies the precise action that must “automatically” cause a weapon to fire “more than one shot”—a “single function of the trigger.” If something more than a “single function of the trigger” is required to fire multiple shots, the weapon does not satisfy the statutory definition. As Judge Henderson put it, the “statutory definition of ‘machinegun’ does not include a firearm that shoots more than one round ‘automatically’ by a single pull of the trigger AND THEN SOME.” Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F. 3d 1, 44 (CADC 2019) (opinion concurring in part and dissenting in part).

Again, a legislative agency does not get to rewrite a statute. As Article I, Section 1, of the United States Constitution makes perfectly clear, “All legislative Powers herein granted shall be vested in a Congress of the United States....” The regulatory agencies are non-constitutional appendages of the executive branch. They can be vehicles for carrying out Congress’s expressed will, but they cannot do no more than that.

As Justice Samuel Alito said in his brief concurrence,

There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. [snip] ...an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.

The constitutional principles that guided the majority in reaching its decision are decidedly lacking in Sotomayor’s dissent (in which, of course, she was joined by Kagan and Jackson). That dissent could have come from Oprah Winfrey herself because it’s about feelings:

When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.

“Because I said so” may be a fine rationale for an exasperated mother facing down a recalcitrant teenager, but it is not acceptable for a Supreme Court decision.

So, Clarence Thomas hit this one out of the park—and it bodes well for the pending decision in Loper Bright Enterprises v. Raimondo, in which the Supreme Court may finally destroy the misbegotten “Chevron Deference” doctrine. That doctrine, born in 1984, said that regulatory agencies have the right to interpret ambiguous statutes (not that the Firearms Act was ambiguous). If those on the Supreme Court loyal to the Constitution write that decision, the administrative state will have its wings severely clipped, which can only benefit liberty in America.