Clarence Thomas’ Opinion Legalizing Bump Stocks Is Indefensible

The Supreme Court’s conservative supermajority carved a huge loophole into the federal prohibition against machine guns on Friday, striking down a bump stock ban first enacted in 2018 by the Trump administration. Its 6–3 decision allows civilians to convert AR-15–style rifles into automatic weapons that can fire at a rate of 400–800 rounds per minute. One might hope a ruling that stands to inflict so much carnage would, at least, be indisputably compelled by law. It is not. Far from it: To reach this result, Justice Clarence Thomas’ opinion for the court tortures statutory text beyond all recognition, defying Congress’ clear and (until now) well-established commands. As Justice Sonia Sotomayor explained in dissent, the supermajority flouts the “ordinary meaning” of the law, adopting an “artificially narrow” interpretation that will have “deadly consequences.” This Supreme Court will be squarely at fault for the next mass shooting enabled by a legal bump stock.

Friday’s decision, Garland v. Cargill, is not a Second Amendment case. The plaintiffs do not (yet) argue that the Constitution guarantees a right to own bump stocks. Rather, they claim that the Trump administration stretched existing law too far when it outlawed bump stocks following the 2017 Las Vegas shooting. The gunman committed that massacre with the assistance of a bump stock, allowing him to murder 60 people in 10 minutes from 490 yards away, the deadliest single-gunman mass shooting in U.S. history. To use this device, a gunman attaches it to his AR-15, then holds his finger on the trigger and leans forward to maintain pressure on the bump stock. A semiautomatic requires the shooter to pull the trigger to fire each round. When done correctly, by contrast, “bump firing” can then unleash a spray of bullets without repeated pulls of the trigger, and at the rate of an automatic weapon. This barrage is audible in many videos of the Las Vegas shooting; victims were mowed down in rapid succession because the bump stock enabled nonstop fire.

For years, the Bureau of Alcohol, Tobacco, Firearms, and Explosives had been monitoring these devices; the agency found some unlawful, depending on their precise mechanisms, but did not take a formal position overall. The Las Vegas shooting prompted ATF to conclude that bump stocks transform semiautomatic rifles into machine guns, rendering them illegal under a long-standing federal statute. That’s because this law bans “any part designed and intended solely and exclusively” for “converting a weapon into a machinegun.” And a “machinegun” is defined as any firearm that fires “automatically” by “a single function of the trigger.” After extensive deliberation, ATF found that bump stock–equipped rifles do exactly that.

Now the Supreme Court has decided that it understands firearms better than the ATF. Thomas’ majority opinion reads like the fevered work of a gun fetishist, complete with diagrams and even a GIF. The justice, who worships at the altar of the firearm, plainly relished the opportunity to depict the inner workings of these cherished tools of slaughter. (It’s no surprise that he borrowed the images from the avidly pro-gun Firearms Policy Foundation.) To reach his preferred result, Thomas falsely accused ATF of taking the “position” that bump stocks were legal, then “abruptly” reversing course after the Las Vegas shooting. This account is dead wrong: ATF took a careful, case-by-case view of different bump stock–like devices as gunmakers developed them, deeming some permissible and others unlawful. The gun industry pushed these devices into the mainstream by deceiving ATF about their purpose; in one case, for instance, a manufacturer won approval from the agency by claiming a bump stock was designed to accommodate people with limited hand strength—then turned around and marketed it as the next best thing to a machine gun.

After wrongly accusing the agency of a politically motivated about-face—and using this charge to discount its expertise and authority—Thomas adopted a highly technical interpretation of the statute that does not align with its text. A “single function of the trigger,” he wrote, does not mean a single pull of the trigger, but rather a complete “cycle” of the spring-loaded hammer inside the gun. Because the hammer (rapidly) resets to its original position between shots, Thomas concluded, “bump firing” involves more than “a single function of the trigger.” And because the shooter must “actively maintain” a particular stance to put pressure on certain parts of the weapon, the justice wrote, the resulting fire is not truly “automatic.”

Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, rebuts this butchering of the text in a tone that toggles between scathing and mournful. She pointed out that when Congress first banned “machineguns” in 1934, their “internal mechanisms” “varied enormously”: Some used triggers, others buttons; some relied on the shooter’s backward pressure on the weapon, while others harnessed the recoil produced by a bullet’s discharge. “To account for these differences,” Sotomayor wrote, “Congress adopted a definition” that encompassed all guns that fire continuously without any need for the shooter to reengage the trigger. That had, until Friday, been the ordinary meaning of “automatic” fire. Extensive records of congressional debate around the 1934 bill confirms beyond a doubt that lawmakers intended to codify this definition. And “evidence of contemporaneous usage overwhelmingly supports that interpretation,” too.

Yet the Supreme Court has now replaced this near-century-old understanding with a narrow, highly technical one that lacks a basis in statutory text. By doing so, Sotomayor noted, the majority “arrogates Congress’s policymaking role to itself.” Its indefensible decision “eviscerates Congress’s regulation of machineguns,” “enables gun users and manufacturers to circumvent federal law,” and “hamstrings the government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.”

And why? Yes, a deep current of gun fetishism runs through Thomas’ opinion. But so, too, does an arrogant skepticism of federal agencies like ATF and the experts who staff them. The majority snidely casts aside ATF’s interpretation in favor of its own amateur conception of how a true machine gun operates. In the process, it does serious damage to American democracy, disobeying a congressional mandate and overriding a decision by the executive branch, which—unlike the judiciary—is accountable to the people.

Yes, Congress can go back to the drawing board and enact a broader law that sweeps in bump stocks. (It won’t, because Republicans will block any such proposal.) That’s what Justice Samuel Alito advised in a concurrence on Friday, urging lawmakers to patch the loophole that he helped to create. But Congress shouldn’t have to correct the Supreme Court’s mistakes. On the rare occasions when it can overcome gridlock, the legislative branch should not have to expend time fixing laws that SCOTUS broke. And the rest of us should not have to worry that the justices, cocooned in their ever-expanding security details, will cavalierly subject us to the prospect of mass slaughter. To the conservative supermajority, this case is about word games and diagrams. To the future victims of bump stock–enabled shootings, it is a matter of literal life and death.

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)