So devastating and outrageous was this rapid-fire killing spree that political leaders across the ideological spectrum called for a ban on bump stocks. Polls in 2018 showed that large majorities of the public favored such a measure. Even then-President Donald Trump, a Republican devoted to a maximalist view of gun rights, agreed. By the end of 2018, the Trump administration had promulgated a regulation reclassifying bump stocks as machine guns, which have been illegal since 1934.
Now comes the Supreme Court to undo that regulation, in a 6-3 ruling. The majority opinion, written by Justice Clarence Thomas and joined only by his fellow Republican-appointed justices, is a tour de force of statutory hairsplitting, which concludes that the bump stock does not, strictly speaking, make it possible to fire multiple rounds with a single pull of the trigger. Therefore, Justice Thomas wrote, the device does not fall within the definition of a machine gun Congress established when it banned civilian possession of such weapons 90 years ago, and the executive branch lacks the power to ban it by regulation. All that remains of the erstwhile movement against bump stocks are statutes that prohibit them in 15 states and D.C.
The Thomas opinion feels like the ultimate triumph of form over substance, as Justice Sonia Sotomayor wrote in a dissenting opinion co-signed by two fellow appointees of Democratic presidents. The court could just as easily have determined that bump stocks fit the definition of a machine gun because it enables the shooter of a semiautomatic weapon to pull the trigger once and then, as she put it, “fire continuous shots without any human input beyond maintaining forward pressure.” She added, accurately, we fear: “Today’s decision to reject that ordinary understanding will have deadly consequences.”
The only problem is that Justice Thomas was correct to point out that the 2018 regulation, issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, did not represent that agency’s consistent view. In fact, it represented a 180-degree reversal of ATF’s position on bump stocks before the Las Vegas massacre, which had been more or less the same one that Justice Thomas articulated in his opinion. This history shows what can go wrong when such clearly legislative matters are left up to the bureaucracy and the courts. It would be far preferable for Congress to provide fresh guidance, instead of relying on regulators and judges to parse a 90-year-old statutory text.
That is, the surest way to effectuate a bump stock ban that so many Americans clearly want, and which is so clearly consistent with common sense, is through a law. If there is a silver lining in Friday’s ruling, it might be that it struck the regulation down on purely statutory grounds, not as a violation of the Second Amendment to the Constitution. That leaves the door open for legislation, as Justice Samuel A. Alito Jr. reminded everyone; his brief concurring opinion implied there is no Second Amendment bar to banning machine guns and suggested that the “horrible shooting spree in Las Vegas … strengthened the case for amending” federal law.
House and Senate lawmakers have proposed several bills, on a bipartisan basis, but none has come close to succeeding. The Supreme Court’s ruling should give those dormant efforts new life, urgently. Banning bump stocks wouldn’t be a bad issue for presidential and congressional candidates to run on in this year’s elections. President Biden almost immediately called for legislation. Mr. Trump’s campaign, by contrast, sounded a much more equivocal note. It called for the ruling against his own administration’s regulation to “be respected,” while noting the ex-president’s backing for “the right to keep and bear arms.”
What an occasion for Mr. Trump to abandon his usual contempt for courts that rule against him. The only thing consistent about the man is his inconsistency.
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