Has SCOTUS Telegraphed Its Decision in Bump Stock Ban Case?

AP Photo/J. Scott Applewhite, File

According to attorney and Second Amendment scholar Mark W. Smith, yes. In a short video posted to YouTube, Smith says based on the justices who've written the majority opinions that have already been released this term, it looks like Garland v. Cargill will be authored by one of the members of the Court's conservative wing. 

Smith says by looking at the February oral argument sessions, the three liberal members of the Court as well as Chief Justice John Roberts have already authored majority opinions. That leaves Gorsuch, Kavanaugh, Alito, Thomas, and Barrett open to write a majority opinion in the bump stock case.

One of them will almost certainly write that opinion in favor of Mr. Cargill in this bump stock case. This is extremely good news that the three liberals and Chief Justice John Roberts will not be doing this decision. It means one of the strong conservatives that are skeptical of government power and are hesitant to give the ATF authority that simply does not exist under statutory law [will be the author.]

The five justices that Smith mentions as possible authors of the Cargill decision all expressed some skepticism towards the government's argument in defense of the ban during oral arguments earlier this year. You can read the entire transcript here for yourself, but as I was re-reading the transcript after watching Smith's video I was immediately struck by this exchange between Justice Amy Coney Barrett and Deputy Solicitor General Brian Fletcher. 

JUSTICE BARRETT: look, intuitively, I am entirely sympathetic to your argument, I mean, and it --and it seems like, yes, that this is functioning like a machinegun would. But, you know, looking at that definition, I think the question is, why didn't Congress pass that litigation -- I mean that legislation to -- to make this cover it more clearly? I think your argument depends on volition, right, so let me give you a hypothetical, and then tell me if you think this satisfies the definition of a machinegun. Let's imagine someone builds a fully automatic machinegun, and I won't try to come up with the technology for exactly how this is going to happen, but they install a tripwire on their property and they just leave the gun there unattended, walk away. Somebody trips the wire and then it begins shooting lots of rounds. 


JUSTICE BARRETT: Does that satisfy your definition of a machinegun?

MR. FLETCHER: I think it does, yes. 


MR. FLETCHER: Because a single act and, you know, I think we've used different words like volition. I think what we're -- the idea that we're trying to get at is, does some separate act, is that required, some manual act required for each shot, or is a single continuous act resulting in the firing of multiple shots.That's an unusual way to activate a machinegun, obviously, but I think, even if it's a tripwire, that's still one act by a person that initiates a multi-shot fire.

JUSTICE BARRETT: But it's an unintentional act in the same way you might say if your finger -- because, for the bump stock to work, you still have to have your finger right there, right? 

MR. FLETCHER: You do, yeah. 

JUSTICE BARRETT: And -- and it -- and it -- according to the Fifth Circuit, what you're focusing on is the definition, you know, it looked at it from the perspective of the gun and the machinery of the gun, but you still do need your finger there to kind of pull back the trigger the same way that you would if it was volitional. 

MR. FLETCHER: So not quite, actually, Justice Barrett. I think this is important. When -- in the typical way that you fire these bump stocks -- and this the Fifth Circuit acknowledged at 21a of the Petition Appendix --you don't initiate firing by pulling backward with your trigger finger. The trigger finger stays completely stationary.


MR. FLETCHER: You initiate by pushing. And what the expert said and the district court found is you could replace your trigger finger with a little plastic post attached to the bump stock and it would work in exactly the same way. So it's -- it's true that you have to keep your finger there, and if you moved your finger away, the bump firing sequence would stop, but that's a pretty trivial additional piece of input from the shooter. Really, what's starting and continuing the sequence is the push forward.


In the end, Fletcher was left trying to make the case that "a single function of the trigger" and "an action by the user" should be treated as one and the same by the Court, which is a big ask. 

Thursday is the next day scheduled for SCOTUS to release opinions, though Cargill and Rahimi could conceivably be two of the last cases decided this term. Smith didn't mention Rahimi in his video, probably because oral arguments in that case were held back in November, so the five conservative justices might not be the only ones left to craft a majority opinion in the lawsuits that were heard last year. We might be looking at a split decision, with the Court invalidating the bump stock ban and upholding the prohibition on gun possession for Zackey Rahimi because he was subject to a domestic violence restraining order. 

Even if the Court does agree that Rahimi shouldn't be allowed to own a gun, it doesn't necessarily have to simply uphold the federal statute in question. A majority could conclude that a finding of "dangerousness" is necessary before depriving someone of their right to keep and bear arms under the "text, history, and tradition" test spelled out in Bruen, while also finding that Rahimi is indeed the type of dangerous person who can lose their Second Amendment rights before a conviction or an adjudication of mental illness.

It's going to be an interesting couple of weeks on the Court, which is also still holding on to several cases challenging Illinois' ban on so-called assault weapons and large capacity magazines. Action on those cases could come as early as Tuesday, when the orders from last week's conference are released. 


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