Wisniewski Weighs in on Bump Stock Arguments

Townhall Media

The consensus from court watchers on yesterday's oral arguments in Garland v. Cargill seems to be that it's still up in the air how the Supreme Court will rule on the ATF's bump stock ban, and Firearms Policy Coalition Action Foundation vice president and general counsel Cody J. Wisniewski isn't ready to declare that a majority of the court will come down on the side of gun store owner Michael Cargill's challenge to the rule. 


Still, on today's Bearing Arms Cam & Co Wisniewski says that he feels pretty good about how the oral arguments went, even though it's clear that many of the justices on the Court struggled with understanding how firearms work; something that's pretty darn important in a case that hinges on how the Court will define "a single function of the trigger." 

"I know that a lot of gun owners are discouraged based on some of the questions that were being asked and some of the technical discussion that was happening in the courtroom," Wisniewski said. 

"But one of the things that I observed coming out of the argument that was really unique in Cargill is that this case wasn't buried behind decades of legal precedent. It wasn't buried behind convoluted legal doctrines. It's a pure technical question about the function of a firearm, and so in that way it was very accessible for everybody. It was easy to follow along with what the Court was doing, but as a result it was also easy for people to follow along with what the Court understood and what the Court didn't understand, and what some justices were picking up on and what some weren't." "

That would include liberal justices like Ketanji Brown Jackson, who seemed unwilling or unable to wrap her head around the fact that while bump stocks may increase the rate of fire of a semi-automatic rifle, they don't turn those arms into "automatic" weapons. The justices also wrestled with whether to accept the government's premise that the "function of a trigger" also encompasses manual activity by a shooter's off-hand, or agree with Cargill's argument (embraced by a plurality of the Fifth Circuit Court of Appeals) that the phrase applies only to the mechanics of the trigger itself. 


Wisniewski says what's really at issue here isn't whether a majority of the Court likes bump stocks or would prefer to see them banned, but whether the ATF overstepped its authority in essentially rewriting the definition of a machine gun to fit its ban, instead of leaving it up to Congress to amend the National Firearms Act and Gun Control Act. 

"It's in the hands of Congress to amend the statute. If Congress wants to capture these things then Congress should amend the statute to capture these things. Now then we have a different question. Then we have a Second Amendment case, but then there's no question of whether or not the ATF overstepped its statutory authority, because here that's what is really at issue, right? Did the ATF go further than Congress allows it to?" 

One of the strangest (and weakest) arguments presented by the DOJ is that non-mechanical bump stocks are machine guns, but things like slings, rubber bands, or even belt loops that gun owners can use to bump fire their rifles are not machine guns. I asked Cody to help me understand the government's position, which was inexplicable to me.

"I understand the distinction the government was trying to make. It's just meaningless," Wisniewski responded. 

"At one point the government's attorney said the difference between those two things, the difference between bump firing with a non-mechanical bump stock and bump firing with a sling or a rubber band, is that the non-mechanical bump stock makes it easier, and because it's easier it is thus a machine gun. Now, I have read the statute. I never found the word 'easier'. I double-checked. It's not in there, but it's also just ridiculous. For people who have fired multiples of these things, non-mechanical bump stocks aren't the most difficult to use. It certainly takes a minute to understand and to figure out exactly the rate of fire, the rate of pressure, but we've all fired firearms that have incredibly light triggers that you can just bump fire from the shoulder. You know, bump firing from a belt loop is incredibly easy to do."


"And so, it's also a lack of understanding", Wisniewski continued. "And that's something that Cargill's attorneys didn't differentiate quite as much as they probably could have. I think at one point he conceded that it's hard to bump fire without a non-mechanical bump stock; that you would have to be, I think he said expert but I don't want to misquote him, which of course set the Internet ablaze as everybody was posting videos of them bump firing random firearms in random configurations in random places. That's one distinction that they could have done better, but I think the point got across at the end of the day that there really is no differentiation between a non-mechanical bump stock and a belt loop."

Wisniewski says that the amicus briefs submitted by FPC and FPC Action Foundation delve into this issue as well, arguing that if the Court upholds the ATF's rule, they're essentially allowing the ATF to declare slings, rubber bands, and perhaps even belt loops "machine guns" in the future. 

"When you're talking about machine guns, a 'conversion device' is in and of itself a machine gun under federal law. So then you get into this weird scenario of if you own a sling and nothing else, do you own a machine gun? It gets into this really ridiculous interpretation."

"I think at the end of the day even the justices who are a little nervous about the distinction between semi-automatic and fully automatic firearms and whether there's a bit of a blurred line here are going to take a step back and go 'is this an appropriate exercise of agency authority?' So even the ones who aren't as willing to go as far on firearm cases are going to be highly skeptical of agency overreach in this case, especially because these items were considered to be lawful for so long." 


I certainly hope that's the case. I'll stick with my prediction of a 5-4 ruling, but I still have no real sense of which side will be in the majority. After talking to Cody, I feel a little better about Cargill's chances of prevailing, but we'll probably have to wait until June to learn where the Court will come down. 

Check out the entire conversation with Cody J. Wisniewski in the video window below, and stick around after the interview for today's armed citizen story, recidivist report, and our good deed of the day!

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