The Textualist Case for Mass Shootings | Crooked Media
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June 14, 2024
Strict Scrutiny
The Textualist Case for Mass Shootings

In This Episode

In an emergency episode, Leah and Melissa break down the Court’s 6-3 decision to strike down a ban on bump stocks, attachments that allow semi-automatic weapons to fire at machine gun-like rates. It’s bad, people.






Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts today. I’m Melissa Murray.


Leah Litman And I am Leah Litman. I am able to be back remotely, so it is very good to be back. I have missed you all. Very sad to miss the live shows. But yeah. Thank you Melissa for making time after a busy live show to record a same day episode, so I get to participate.


Melissa Murray Well, thank you so much for being here. We’re so excited. And I am particularly excited because everybody knows when Leah and Melissa get together and Kate’s not here, that’s when hijinx ensue. And what a case for hijinx to ensue. So this is a quick emergency Insta recap of the court’s major decision on guns. In a 6 to 3 decision authored by Justice Clarence Thomas, the court struck down a Bureau of Alcohol, Tobacco and Firearms and Explosives ATF regulation that restricted bump stocks. Bump stocks are devices that are used to convert semiautomatic weapons into devices that can fire up to 800 bullets a minute with a single pull of the trigger, so long as the shooter holds on to the device in a certain way. A bump stock was used in the deadliest mass shooting event that ever took place in the United States the concert in Las Vegas, Nevada on October 1st, 2017. And basically that’s what the court today said, cannot be prohibited. Those bump stocks, which one used with semiautomatic weapons, equip them to fire massive rounds of artillery into an audience of just random civilians enjoying a concert. The court says that no. Two outlaw that would exceed the ATF statutory authority. So we are going to cover the background for the legal question. In this case, we’re going to cover Justice Thomas’s majority opinion, Justice alito’s concurrence, and Justice Sotomayor’s dissent for the three Democratic appointees. And we’re also going to talk about the practical implications of the decision. So, Lisa, why don’t you set this up and give us an intro to the history and tradition of firearm regulation in the United States?


Leah Litman So the history and tradition is that Congress severely restricts the availability of machine guns. It has for a while. So under the National Firearms Act of 1934, a machine gun is, quote, 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 and quote. That definition was expanded later under the Gun Control Act of 1968, to include parts that can be used to convert a weapon into a machine gun, and machine guns are distinguishable from semi-automatic weapons because a machine gun, unlike a semi-automatic weapon, allows a shooter to fire multiple times or even continuously by engaging the trigger only once that it’s like one push, one Paul.


Melissa Murray And that’s in stark contrast to a semi-automatic weapon, where a shooter can fire only one time by engaging the trigger. However, when a semi-automatic weapon is enhanced with a bump stock, the bump stock enables the shooter to fire the semi-automatic weapon at rates that are comparable to machine guns. Indeed, some argue that a bump stock transforms a semi-automatic weapon into a machine gun, and therein is the crux of this dispute. For many years, the Bureau of Alcohol, tobacco, Firearms and Explosives ATF took the position that semi-automatic rifles that were equipped with bump stocks were not machine guns for purposes of the National Firearms Act, which restricts the possession of machine guns.


Leah Litman However, the ATF changed its stance on bump stock equipped weapons in 2018, in response to the mass shooting at a music festival in Las Vegas on October 1st, 2017. That day, Stephen Paddock checked into two rooms on the 32nd floor of the Mandalay Bay hotel, and later that night, he broke the windows in both rooms and opened fire on the crowd at the music festival, which the hotel overlooked. He ultimately fired over 1000 rifle rounds approximately 490 yards into the audience, and the gunfire was so rapid that many people in the crowd initially mistook the gunfire for fireworks, and when law enforcement later entered the rooms, they found paddock dead from a self-inflicted gunshot, as well as his arsenal of semi-automatic weapons that had been equipped with bump stocks.


Melissa Murray Amidst public pressure to address the tragic facts of the shooting, the Trump administration’s ATF issued a rule concluding that bump stocks are machine guns for purposes of the National Firearms Act, and the new rule directed anyone who owned or possessed a bump stock to destroy them, or, alternatively, to drop them off at a nearby ATF office to avoid facing criminal penalties. So Michael Cargill, who is a gun shop owner in Texas, surrendered his bump stocks as directed. However, with the backing of the new Civil Liberties Alliance, which is an advocacy group with financial ties to. Charles Koch of the Koch brothers. He then filed suit, challenging the ATF’s rule as impermissible.


Leah Litman And from the argument. I think I knew where the court was going to go, even if it was kind of shocking to actually read the decision in light of its consequences, and then reading the analysis that the court used compared to the dissent, because at argument, the justices spent a lot of time digging into the technical mechanics of firearms, with Justice Thomas Pressing Deputy Solicitor General Brian Fletcher, who represented the Biden administration, about how a bump stock equipped semi-automatic rifle operates differently from a machine gun.


Melissa Murray So I’m just going to say, Leah, when I read this opinion, it reminded me of earlier terms where the court had engaged in textualism. But it wasn’t just sort of normal regular textualism, it was extreme textualism. And here there was a lot of highly technical mechanical energy that really seemed to speak to extreme textualism, just like, you know, X-Games Textualism and Justice Thomas. And holding that the ATF exceeded its authority when it classified bump stock equipped semi-automatic firearms as machine guns really leaned in. Right. So this wasn’t just an ordinary decision parsing the statutory language. It was textualism literally combined with Popular Mechanics. Right. So he insisted that bump stock equipped rifles cannot fire more than one shot by a single function of the trigger. And even if they could, they don’t do so automatically. Accordingly, they can’t be machine guns within the meaning of the statute. And to illustrate that he literally has six different drawings.


Leah Litman Exactly. It’s like a picture book of guns.


Melissa Murray I mean, like it’s gun porn.


Leah Litman Yes.


Melissa Murray It’s not very fetishistic. I have to say.


Leah Litman This is part of the, I don’t know, brand of extreme textualism. Right? Like you apply it, it generates this ruling that authorizes bump stocks. It allows you to kind of valorize the mechanics of them and say, isn’t this so cool and neat? Watch me. You know, over scientific guys, both textualism and the operation of these firearms in order to allow bump stocks.


Melissa Murray Let me offer another gloss on this. Do you remember in Kennedy versus Bremerton School board, the praying coach case where Justice Gorsuch wrote this opinion and really kind of shaded the facts in some interesting ways, and Justice Sotomayor wrote a dissent where she basically kept dropping in photographs like this you? This what you’re talking about. And like, you know, photographic evidence that he had basically misled the court, misled the public as to the facts. Certainly, I kind of felt like Justice Thomas might be doing a similar kind of thing here with Justice Sotomayor, who did write a dissent that he’s including these drawings, these technical drawings of triggers to sort of reinforce that. He believes that her textual interpretation of the statute does not coincide with the actual mechanics of guns, like, I mean, it seems like a kind of similar move.


Leah Litman I mean, maybe except in Justice Sotomayor’s dissent and Kennedy, like the pictures, actually did the work of rebutting, right? The contrary argument. Whereas like here, they’re not responsive. I don’t think, too the key disagreement between the majority and the dissent.


Melissa Murray I mean, I think he thinks it’s doing work. I don’t know, she would necessarily agree, but I would think that in the case of the brain coach, I don’t think that Justice Gorsuch necessarily understood himself to be misleading. I mean, I think he thought like he was presenting the facts in a very clear way, even though it was very clear after reading her dissent that, you know, there were definitely some disagreements and maybe rightly so. I think that’s kind of what Justice Thomas is doing. I just wonder if it’s a trend that we’re going to see more and more of these decisions peppered with pictures, right, to like, sort of reinforce their positions as they disagree more violently about their various views.


Leah Litman I can’t wait to see Neil Gorsuch draw stick figures to illustrate the administrative state, like knifing someone else in the back. I think that that could be, an interesting picture book to look forward to later on this term.


Melissa Murray All right. So a big part of this decision and the logic of the majority opinion really focused on the phrase function of the trigger. All right. I think it’s a big reason why we had all of these drawings. But function of the trigger refers to the mode of action by which the trigger on a gun activates the firing mechanism. And as Justice Thomas explained, quote, no one disputes that a semiautomatic rifle without a bump stock is not a machine gun, because a shooter must release and reset the trigger between every shot and any subsequent shot fired after the trigger has been released. And reset is the result of a separate and distinct function of the trigger. I think most people would agree, like without a bump stock of semi-automatic weapon, you have to keep pulling the trigger to fire, and it’s not a continuous motion. But I think the difference is when you. Add on the bump stock. Is it now a separate function of the trigger every time, just as Thomas would say? Yes. And I think Justice Sotomayor would say no. But this is what Justice Thomas had to say about this. In his view, nothing changes when a semiautomatic rifle is equipped with a bump stock between every shot. The shooter must release pressure from the trigger and allow it to reset before reengaging the trigger for another shot. A bump stock merely reduces the amount of time that elapses between separate functions of the trigger, end quote. So it’s just faster, but it’s still a separate movement. Whereas Justice Sotomayor would say it’s so fast that you can’t actually make out a separate movement, it all feels rather continuous.


Leah Litman Well, I think Justice Sotomayor would say that the function of the trigger is basically the human initiation of the act. That is the press. Right. And because you don’t actually have to press it again to fire. Exactly. Right, then it’s only a single function. Whereas Justice Thomas is like, no, the function of the trigger is not actually like the human initiation. It is the internal mechanical back and forth of the little curved lever right on the gun itself. And because that hasn’t been modified, then you know, the bump stock equipped semi-automatic still operates as not, machine gun.


Melissa Murray So can I just say I mean, I don’t own a gun. I don’t shoot guns. Like, just looking at this, I could see how both are sort of totally plausible readings here, right? I mean, like, you know, I guess Justice Thomas is presenting this as though there is no alternative way to look at this, like any other interpretation of the text is just stupid. And that feels really facile. Like, I mean, it’s a complicated question. It’s obviously a very technical and mechanical question. And, you know, maybe reasonable people could actually differ here. Yeah.


Leah Litman And, you know, we’ll discuss the additional context clues and other matters that Justice Sotomayor leverages in order to support her interpretation. Honestly, I’m not sure I necessarily agree with you that, like, this is like a kind of like, I don’t know, like closely divided case as far as, like how difficult the legal issue is, like once you kind of like look at more. But.


Melissa Murray I’m not saying I agree with Justice Thomas’s interpretation. I’m just saying, like the idea that there is no other alternative interpretation and he just rules out any alternatives. That to me just seems like this seems really technical. Like maybe you could make this argument right?


Leah Litman And like the pedantic cism of the like technical parsing of the functioning of guns, and the statute just really did not sit well with me at various points, like it felt like at some points he had just kind of like lost the plot when he was describing the function of these guns, saying, you know, finally, when the shooter takes pressure off the trigger and allows it to move forward, as indicated by the arrow, the hammer slips off the disconnect or justice. The square point of the trigger rises into the notch on the hammer. Right? Like that’s just like weird kind of pedantic gun porn to me. And it doesn’t kind of engage with the idea that, like, no, when people say function of the trigger, they’re talking about the push or pull.


Melissa Murray So. I think the broader point here is this is just and this, I think, applies to the conservatives vision of Textualism is like, you know, text can be ambiguous, like multiple people could come up with different interpretations of these various phrases. And the conservatives on this court sort of present their view as the only view that could be valid or relevant. And I think you see that here. I think it’s amplified by the inclusion of the drawings, which, you know, in addition to being fetishistic, are meant to amplify the view that this is the right and proper interpretation of this text, when in fact, I think you could have other interpretations that people could reasonably disagree about, but would seem pretty okay.


Leah Litman Yeah. And they also included like a gif to demonstrate. Yes. Like how the trigger works. It’s just like a really weird opinion. And then on top of that, it suggests that the regulation is unlawful, not just because it’s the bump stock modified semiautomatic rifle, you know, still involves multiple functions of the trigger, but also because it doesn’t happen automatically. So they say like this regulation is invalid for like two reasons. And they say it’s not automatic because the shooter has to maintain pressure in a certain way, you know, on the gun in order to make the bump stock deliver, you know, those several hundreds of bullets per minute.


Melissa Murray So the first part of the opinion is really the sort of straight forward effort to present the text of the statute and the regulations as inconsistent with one another. And this is again amplified by these mechanical drawings that Justice Thomas presents. There’s also a second part of the opinion, which really addresses an argument that both the government and the dissent made the government at oral argument had argued that the presumption against ineffectiveness, which is a statutory canon that weighs against interpreting a statute in a way that would render its provisions basically useless and would allow those who wish to contravene the statute to do so in the easiest manner possible. According to Justice Thomas, the presumption against ineffectiveness basically doesn’t matter, and he has no qualms about the court advancing an interpretation of both the regulation and the statute in a way that would essentially render this statute useless for purposes of regulating bump stock equipped, semi-automatic weapons that do function in ways that are comparable to machine guns.


Leah Litman Yeah, and one of the oddities about the majority opinion is it never pauses to think about or offer any explanation for why Congress would have prohibited machine guns, but allowed bump stocks, right? Because, like, there probably isn’t a reason.


Melissa Murray Well, they might not have. I mean, they knew what a Gatling gun was in 1934, but they probably didn’t know what a bump stock was. I mean, and this is a way in which I think this case, although it’s been focused on as a gun case, is a bigger question about the administrative state, like many statutes are written and their terms are sort of, you know, there’s a kind of spirit there, but it may not be overly specific because it can’t contemplate what’s coming down the pike. And it’s meant to be a statute that endures for a while. And that might be the case for the National Firearms Act of 1934. It just did not anticipate or understand what a bump stock is and would be. But it definitely didn’t like the idea of firearms that could distribute artillery at a rapid pace, like a Gatling gun, the kind of machine gun that was in use in 1934. And so you see the same kind of energy with the EPA, right. And the environmental statutes, like it was the Clean Air Act meant to apply to something specific that wasn’t contemplated in 1970, but is a big deal right now.


Leah Litman Yeah. Although part of what makes the application of that kind of interpretive outlook to this statute so weird is that Congress had included. And we’ll get to this when we discuss Justice Sotomayor’s dissent kind of anti evasion provisions in here, saying a machine gun includes items that are designed to modify or convert weapons into machine guns as well.


Melissa Murray There’s an intervening statute, and I think the 1960s that augment some of this. But again, just the point that you are making that I agree with, it’s like we never even get into what was the point of the statute in 1934? It was basically to stop these firearms that could deliver artillery at rapid rates and make it really easy to kill lots of people, because that kind of purpose might be relevant for the question of contemporary bump stocks.


Leah Litman Yeah. I mean, guns don’t kill people. Textualism does, I guess.


Melissa Murray I guess, so here’s a clip from the opinion that I think is worth parsing, Justice Thomas explains. A law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest. Interpreting the provision in question to exclude semi-automatic rifles equipped with bump stocks comes nowhere close to making it useless. Under our reading, the provision still regulates all traditional machine guns. The fact that it does not capture other weapons capable of a high rate of fire plainly does not render the law useless, end quote. But it kind of does make the law less effective.


Leah Litman And substantially so, because, as Justice Sotomayor notes in her dissent, like bump, stocks are marketed to function as automatic weapons. Like she quotes a marketing material as, quote, bump, fire stocks are the closest you can get to full auto and still be legal, right? Like they approximate that and everyone knows that.


Melissa Murray The other part that’s really interesting here, given that Justice Thomas doesn’t feel it necessary to include any of the kind of statutory history or the purposes or animating principles that put forth the statute. He does have a lot to say about the ATF’s regulation of bump stocks more generally, and he notes that the Trump administration and ATF changed course on bump stocks in 2018, in response to this public pressure around the Las Vegas shooting. But before that, the ATF, all administrations had consistently exploded bump stock equipped semiautomatic weapons from the definition of machine gun. So it’s only this one moment in 2018 where the ATF changes, but it has consistently excluded bump stocks, and that’s really relevant, he says, because that shows that everyone has always known that this was not within the definition of machine guns, as the ATF had enforced this statute. Which raises a question. I mean, like that all I think is true, the ATF did not include bump stocks before 2018. But does that mean, like the fact that you had a kind of shitty interpretation of the statute or you hadn’t anticipated what might happen using a particular kind of technology that had not been contemplated when the statute was first enacted? But you finally do see what’s going on, and there’s been huge catastrophic consequences. You can’t change course. You’re just sort of like originalism ossified for all time in your interpretation of the statute.


Leah Litman Yeah. Zero Bayesian updating allowed, right? You can’t adapt to new facts, new circumstances, things you learn. I think, as deputy S.J. Fletcher noted during the argument, ATF hadn’t actually done like full tests of bump stocks. You know, during many of the periods in which it concluded that bump stocks were not machine guns. And when it revisited the issue, right, and saw how bump stocks operate and then did tests right, they concluded, yeah, this is right. Effectively a machine gun.


Melissa Murray So that’s the basic flavor of majority opinion. Again, lots of textualism lots of popular mechanics. This bump stock equipped semi-automatic rifle cannot be considered a machine gun because there’s no automatic and continuous pulling of the trigger. The person who is firing the weapon has to do some kind of motion to keep it going. And so, you know, there it is. And the fact that this new interpretation from the court might make it less effective to regulate these kinds of weapons and indeed, quote unquote, machine guns more generally, is of no moment to the court. Justice Alito could not stop himself from weighing in. Yeah. He does a lot of this concurring energy, I think, with Justice Thomas on the gun issue. And he speaks to, I think, a question that’s sort of lurking in Justice Thomas’s majority opinion. If you really care about including within the term machine guns, bump stock equipped rifles, why don’t you just have Congress update the statute? And that’s basically the crux of the Alito concurrence. He does go further to note that the Las Vegas shooting in 2017 was, quote unquote, horrible, but it did not change the statutory text or its meaning. Only Congress can do that. And I thought that was just kind of grotesque.


Leah Litman Yeah. No, I agree, it kind of like took the Textualist case for mass shootings and then amped it up to a whole other level.


Melissa Murray Put a bump stock on it.


Leah Litman Right, exactly. Making it more automatic than those PJ trips that Clarence Thomas gets from Harlan Crow. But, it really leans into this. Who decides? Energy, right? Congress, courts, agencies. And it engages with this notion that had been bandied about in the. About Chevron in the future of the administrative state, which is whether Congress would legislate more in the absence of agency policymaking. And Justice Alito suggests that Congress can amend the law, and perhaps would have done so already if ATF had stuck with its earlier interpretation and quote. And that just completely right is a very blinkered reality view. Like, I am personally not optimistic that this Congress is now all of a sudden going to get together and pass, you know, a prohibition on bump stocks. Given the narrow GOP House majority.


Melissa Murray Well, I mean, I think that’s the real point here. I mean, I actually I think the point that you made is worth sort of underscoring like this idea that by stepping in to regulate, the executive has usurped and taken away any energy that Congress might have to do something here. I think to your point, kind of belies the fact that Congress wasn’t going to do anything here. It’s like a super gaslight, a part of this concurrence, because he knows as well as anyone that the GOP caucus is not going across the aisle to work with Democrats to amend existing gun laws. All of those GOP representatives and senators who get NRA money are definitely not going to do this. Like the only way Congress is going to act to amend these laws is if we have a completely different Congress.


Leah Litman Yeah. So had some guess Alito. In the concurrence. But maybe now we should move on to the.


Melissa Murray The better opinion, right?


Leah Litman The best opinion, if you will. And that is Justice Sotomayor’s dissent, which I feel like we’ve already alluded to now multiple times. She wrote an absolute legend of a dissent. I think, you know, speaking for myself, I love the tone, the logic. I also appreciated her focus on the implications of the decision. So I just thought it was great.


Melissa Murray So the opening of Justice Sotomayor’s dissent, it’s kind of funny. I it’s it’s kind of funny. So she writes, 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, a semi-automatic rifle fires automatically more than one shot without manual reloading by single function of the trigger. A bump stock equipped semi-automatic rifle fires automatically more than one shot without manual reloading by a single function of the trigger. Because I like Congress, call that a machine gun, I respectfully. Dissent is an excellent opening. I’m going to say nine out of ten. I would have taken out respectfully.


Leah Litman So I had one other note on that, which is I would have said, because I like Congress, call that machine gun, machine gun. I respectfully dissent just to make it, like, slightly stark here, but, that’s that’s just me. So, you know, whatever. But, you know, the logic of her dissent is, I think, really illuminating and counter the kind of overly formalistic Popular Mechanics weird version of extreme textualism that the majority deploys. So Justice Sotomayor explains that more textualism. Yes, gun poor and textualism. It is literally like the Textualist case for mass shootings or like mass shootings version of Textualism. It’s just really dark stuff. Whereas Justice Sotomayor explains that an M16 is a prototypical machine gun because a single pull of the trigger provides continuous fire. As long as you know you’re holding the trigger. And she infers from this that the function of the trigger is the initiation of the firing sequence that is, the pull of the trigger, not the internal resetting of the trigger or the internal mechanics and the moving back and forth of the, you know, resetting device. It’s a human act of initiation, she says.


Melissa Murray And she marshals some pretty good statutory history to this effect. So she notes in her dissent that the term function of the trigger was actually proposed by noted liberal squish, the then president of the National Rifle Association, during a hearing on the National Firearms Act before the House of Representatives. And at that hearing, the president of the NRA emphasized that a firearm which is capable of firing more than one shot by a single pull of the trigger, a single function of the trigger is properly regarded as a machine gun.


Leah Litman There you go. Right? Like the pull is a function.


Melissa Murray So distinguishing a machine gun from a pistol. The NRA president then went on to say, meant that you must release the trigger and pull it again for the second shot to be fired. That’s what makes a machine gun different from a pistol. He did not say that. Quote. The hammer slips off the disconnect there, just as the square point of the trigger rises into the notch of the hammer, thereby resetting the trigger mechanism to the original position. Because he wasn’t writing a Popular Mechanics manual for people to make their own machine guns, here is just generally talking what distinguishes a machine gun? From an ordinary weapon like a pistol, where you just pull the trigger one time and one shot gets fired.


Leah Litman So Justice Sotomayor also focuses on the anti evasion concerns that led Congress to adopt this definition of machine gun, and clarified that machine gun includes, quote, any part designed and intended for use in converting a weapon into a machine gun, end quote. So Congress included anti circumvention safeguards in the statute itself. And the opinion actually cites a statement to this effect from Justice Kagan that she made an oral argument, which I kind of loved. So this line is now a line in the opinion, which was just a clip from the argument you can hear here.


Clip And I guess what Justice Gorsuch is saying is that you, in arguing this case, have had to do something very sensible, because otherwise it would seem, you know, like, you know, that this statute is loaded with anti circumvention devices. The entire way the statute is written suggests that Congress was very well aware that there could be, small adjustments of a weapon that could get around what Congress meant to prohibit and, and, and in all kinds of ways, you are accepting of that and saying, yes, you can circumvented by that, you can circumvented by non-conventional triggers. You can’t circumvent it by, you know, all these things that, these hypotheticals I’ve been giving you, but you can circumvent it through this one mechanism.


Melissa Murray Justice Sotomayor’s dissent again, I think offers another really interesting lens on this. I mean, like, it’s a textualist opinion, too, but it also engages the purpose of the statute. It’s not completely divorced from the reality of the animating principles of the statute. I mean, she’s using textualism to but it’s also, I think, leavened with these questions about like, why did Congress pass us in the first place? What were they trying to do? Doesn’t that inform our interpretation of the text? And, you know, it’s worth remembering that this was a case where there was a circuit split. One circuit ended up the way Justice Thomas did, and another circuit ended up the way that Justice Sotomayor did. And it’s not the case that Justice Thomas is obviously right, but he presents himself as obviously right. This is the only interpretation. I think the fact of those drawings is meant to amplify the rightness of his textual interpretation. But texts can be ambiguous. And I think part of what Justice Sotomayor here is doing is reading the texts, but also recognizing that the text cannot tell the whole story absent this context.


Leah Litman So we also wanted to highlight the tenor of the dissent. You know, Melissa, at the beginning read the I call that bird a duck bit, which is, in my view, absolute queen shit. Other entries in this category. Quote A machine gun does not fire itself, end quote or quote. This is not a hard case. End quote. And she focuses on the consequences of this ruling. You know, the closing of her dissent is, quote, today’s decision to reject that ordinary understanding will have deadly consequences. The majority’s artificially narrow definition hamstrings the government’s efforts to keep machine guns from gunmen like the Las Vegas shooter. I respectfully dissent, end quote. I mean.


Melissa Murray Basically, she’s like, apparently the Constitution is a suicide pact. Great.


Leah Litman Or Textualism is a suicide pact. I mean, you would think that, like, if this is what Textualism does, how it’s applied and what it yields, we should all be saying thoughts and prayers for Textualism at this point. And yet I think the majority thinks we just proved how awesome our extreme textualism is.


Melissa Murray Well, in that vein, let’s really talk about the practical implications of this decision, which, as Justice Sotomayor suggests, now unleashes bump stocks back onto the country. And again, a bump stock was used with a rifle in the deadliest mass shooting event in the history of the United States. That concert in Las Vegas, where more than 50 people were killed and 500 people were shot. I mean, that’s unbelievable.


Leah Litman Yeah, it also unleashes, you know, potentially a lot of other devices that, like bump stocks, make guns deadlier. As Justice Sotomayor noted in her dissent, ATF has regulated other mechanisms like forced reset triggers or motorized devices, and the majority’s interpretation about what automatically, you know, firing based on a single function of the trigger could potentially call into question some of those regulations and restrictions as well. And deputy SG Brian Fletcher raised this possibility at oral argument, which you can hear here.


Clip I mean, I talked about some of them, but one of the devices that the Fifth Circuit has held is permissible or I’m sorry, a district court in the Fifth Circuit has held is permissible, and the Fifth Circuit has declined to stay. It’s something called a forced reset trigger. And with a forced reset trigger, the ATF tested it, zip tied the trigger back, and the gun shot multiple bullets. But the district court said, is that under my friend’s interpretation, it’s function. There are multiple functions of the trigger because the trigger is wiggling back and forth imperceptibly and releasing the hammer separately each time. And so it’s not a machine gun. And I think it’s just not reasonable to read the statute that opens it up to that sort of evasion. And we’re seeing concrete evidence of that evasion in the Fifth Circuit.


Melissa Murray At least during the argument. Jonathan Mitchell, who presented the case on behalf of Cargill, seemed to affirmatively concede that his interpretation of the law would mean that a bunch of other anti circumvention mechanisms that ATF has long said are prohibited would not be prohibited any longer. Like, for example, the Atkins accelerator, which has been banned since 2006, that device relies on a spring uncoil mechanism, so pulling the trigger once generates the firing of multiple bullets. The bump stock does it without a spring and coil, so a shooter has to continue to apply forward pressure, but no such forward pressure is needed with the Akin’s accelerator. But apparently that’s going to be fine too.


Leah Litman Yeah. So this doesn’t necessarily fall under the practical implications of the decision. And some of the additional thoughts that, I at least wanted to share. But, you know, the opinion and in particular, Justice Alito’s concurrence says, well, Congress could if it wanted to prohibit bump stocks. And I think it’s at least worth flagging the possibility that even if I had to amend.


Melissa Murray I like how you flag things for Justice Alito. Keep flagging.


Leah Litman I am about to flag a pretty flagrant, or what would be a pretty flagrant foul, in my view. Which is, even if Congress were to amend the statute to prohibit bump stocks, I mean, there’s no guarantee that this clown court wouldn’t strike it down as violative of the Second Amendment. You know, some of the justices have really extreme views on the Second Amendment. We read Justice Alito’s, you know, concurrence here. We read Justice Thomas’s majority opinion in Bruen. As a judge on the Court of Appeals. Kavanaugh said Congress couldn’t prohibit assault rifles. I mean, this is not outside the realm of possibility. So can I ask.


Melissa Murray About another justice? We haven’t talked about this justice at all, but if I recall correctly, at oral argument, Justice Barrett did seem slightly skeptical. And in some of the other cases that have recently been announced but versus elsewhere comes to mind, she seemed to be of the view that you had to be more contextual in thinking about how these regulations operated. I mean, like Vidal versus Elster was a First Amendment case. And so, you know, it’s a different sort of context. But I think the same idea applies that you can’t just sort of look at the plain text, but maybe sort of think about the broader context in which the provision is operating. But even though I think she sort of made those kinds of gestures at oral argument, in this case, she has nowhere in these opinions.


Leah Litman Yeah. Just willing to silently go along. Per usual.


Melissa Murray Has the sea witch taken her voice?


Leah Litman I mean, we have talked about before how these different methodological markers that the justices put down, at least I, I am not confident they are going to hold in all future cases. And I think the whole point is completely right, and that you would think a more contextually sensitive approach to interpretation in Cargill would have yielded a different result, namely the dissents. But I mean, she wasn’t going to stick to that across all cases.


Melissa Murray It’s not even that she doesn’t stick to it. I mean, she doesn’t say anything, not even sort of like, you know, okay, I might roll this back slightly, like, you know, with Justice Thomas, but whoa, I’m not with Justice Thomas. I mean, there’s there’s just nothing. And she just continues to be a cipher in the most grotesque ways possible.


Leah Litman Yeah. I think that. That’s right. You know, we’re, of course, referencing her not writing anything in Dobbs. Yeah. You know, just signing on to the Alito opinion there. You know, this opinion is also going to have, like, really scary consequences as far as, you know, what people can do with guns. And, you know, she doesn’t say anything there either. So I guess like a few other just assorted collected thoughts, one is how to think about the fact that the court struck down a Trump era regulation on bump stocks. And, you know, I think this decision, even though the regulation at issue was also passed during the Trump administration, like this, is Donald Trump’s doing like he owns this because even though it was a Trump era regulation, the court struck down, he appointed half of the justices in the majority who struck it down. And it’s just, to me, an encapsulation of how Republicans use the federal courts to advance a minority rule agenda, like the Las Vegas massacre pressured and forced the administration to do something. And now, right, it is undone by that administration’s appointees. And in the wake of the decision, you know, Trump is talking about how the decision has to be respected and how proud he is of his Supreme Court appointments and protecting the Second Amendment. And so, right, like this is on them as well. For sure. For sure. One other thought in prayer. One other thought in prayer. Okay. Thoughts and prayers.


Melissa Murray Sorrows and prayers.


Leah Litman Sorrows and prayers to the very moderate institutional court that everyone thought existed in the wake of yesterday’s medication abortion ruling. Thoughts and prayers to that court. Not everybody, but the you know.


Melissa Murray I mean, no, I mean, we’re back to our six three conservative supermajority with our silent lady at the helm.


Leah Litman Right?


Melissa Murray Guns at the ready, lady. Silent lady in the back riding shotgun, as it were. Bump. Stock. Shotgun. Yeah, I will also say. We were expecting some big opinions on Friday today, given what was issued yesterday. I thought the fact that they issued the move a strong case and it was, you know, something of a victory and something to celebrate, meant that we get something really dastardly today and this is bad, but it’s only going to get worse. And the next two weeks are going to be bonkers.


Leah Litman It’s definitely time for some bad decisions, but the fact that Justice Sotomayor is respectfully dissenting in this one, you know, she’s going to yank that respect in some future dissents. And so it’s got to be that those other cases are, in her view, even worse.


Melissa Murray I mean, the fact that, like putting bump stocks back on the market is sort of like a medium level shit decision. Here we are. Okay.


Leah Litman June gloom.


Melissa Murray Seriously, June Gloom is not just for San Diego. It’s for the whole country. Now it’s time to make some bad decisions. People, gird your loins. Here we go. Thanks so much for joining us today for this emergency episode. As we broke down the court’s 6 to 3 decision in Cargill versus Garland, which now floods the market with bump stocks. Good for the court. Congress, if you want to step in and do something, I guess that would be great. And then the court could just strike that down.


Leah Litman Make sure the sea witch doesn’t get Congress’s voice either.


Melissa Murray Yeah, well, I mean, we might get a good two years of non bump stock shootings if Congress acts, but there we are. Thanks for joining us today. Strict scrutiny is a Crooked Media production hosted and executive produced by Leah Litman. Me, Melissa Murray and Kate Shaw. We’re produced and edited by Melody Rowell with help from Bill Pollack. And many thanks to Jerrick Sentanoe for helping with this episode by substituting for Bill and Melody. Michael Goldsmith is our associate producer and our intern this summer is Hannah Saraf. We get audio support from Kyle Seglin and Charlotte Landes with music by Eddie Cooper, production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and we are very grateful to our digital team, Phoebe Bradford and Joe Mitski. And you can subscribe to Strict Scrutiny on YouTube to catch full episodes, and you can find us at forward slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.


Leah Litman Leave us an extreme review.


Melissa Murray An exam.


Leah Litman Or not.