Supreme Court Invalidates Bump Stock Regulation

In October 2017, a horrific crime was committed in Las Vegas, Nevada. As stated in today’s Supreme Court opinion in Garland v. Cargill, “a gunman fired on a crowd attending an outdoor music festival in Las Vegas, killing 58 people and wounding over 500 more. The gunman equipped his weapons with bump stocks, which allowed him to fire hundreds of rounds in a matter of minutes.”

Machine guns (fully automatic guns) are illegal. Should bump stocks, which enable a semiautomatic to fire a similarly rapid series of rounds, be illegal for the same reason? Of course. Who has the authority to make that law, Congress by statute or the the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) by regulation?

For years before the Las Vegas massacre, ATF took the position that it did not have the authority to make the change by regulation. Then it abruptly changed its position. The Supreme Court today held that ATF was right the first time.

Justice Alito added a brief concurring opinion:

I join the opinion of the Court because there is simply no other way to read the statutory language. 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. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b). But 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.

That last point is important. When an administrative agency—or a court—makes a decision that actually belongs to the legislature, it takes the heat off the politicians and interferes with the normal working of the representative democratic process. The people who favor it will stop pressing their representatives for it, while those who oppose it will keep up the heat against enacting it legitimately.

Even if the decision is a good one on the merits, the end does not justify the means. An illegitimate decision remains illegitimate. It will be seen as such by a substantial segment of the population, and it may eventually be struck down by the courts.

So get on it, Congress. You should have done so years ago.