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Memorials and tributes to the dead in the aftermath of the October 1, 2017, mass shooting on the Las Vegas Strip
One of the very few recent instances of successful gun control regulation happened under the Trump administration, ironically enough. It stemmed from the 2017 Las Vegas mass shooting. The shooter sprayed randomly into a country music festival from a high hotel room about 500 yards away using several AR-15s, killing 60 people and wounding more than 400—to this day the deadliest mass murder in American history carried out by a single person. Yet though the killer fired more than 1,000 rounds, the whole thing was over in about ten minutes—because the guns were fitted with bump stocks, turning them into de facto automatic weapons.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) initially decided that it didn’t have the authority to regulate bump stocks. But when President Trump instructed the ATF to try again after the Parkland high school mass shooting in 2018, the agency reversed course and issued a ban.
It should be emphasized that banning bump stocks is a very modest step. A practiced shooter can fire a semiautomatic rifle nearly as quickly as an automatic one, and more accurately. Indeed, the Parkland shooter who motivated Trump’s action did not use one. Still, nothing beats fully automatic fire for spraying into a crowd; there’s a reason traditional machine guns were banned.
But now gun activists are leveraging the latest trend in conservative jurisprudence to attack even this tiny regulation. A case before the Supreme Court would strike down the bump stock ban on the grounds that the ATF acted outside its authority. Since Congress is paralyzed even with basic budgetary matters, an unfavorable ruling would re-legalize bump stocks indefinitely.
The legal context here has to do with the National Firearms Act of 1934 and its later amendments. Current law requires special permits to own a machine gun, which is defined as: “Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger.” Since these permits are very difficult to obtain, if not impossible in some states, machine guns are de facto banned in this country (outside of some guns that were grandfathered in).
To a native speaker of the English language, this would seem to be the end of the discussion. A bump stock uses a different set of mechanisms than a traditional automatic weapon, but it very obviously fits with this sweeping language. You hold down the trigger, the gun fires repeatedly until the magazine is empty. Simple as that.
But of course, that’s not enough for America’s gun cult. As Abbie VanSickle reports at The New York Times, a Texas gun store owner has teamed up with a right-wing legal outfit called the New Civil Liberties Alliance (a sort of funhouse-mirror ACLU) to sue the ATF over this rule. “This rule turned half a million people into felons overnight,” said Philip Hamburger, one of the organization’s founders. “That’s not a power that the Constitution gives to administrative agencies—so it deserved a lawsuit.”
Unsurprisingly, it is not true that half a million people were turned into felons “overnight.” The rule actually gave bump stock owners 90 days to either destroy or turn in their devices, largely on an honor system basis.
The current American gun cult has little or nothing to do with either history, the Constitution, or plain common sense.
But this dishonest and farcical reasoning is in keeping with the entirety of conservative legal argumentation on gun control. Until the late 20th century, basically nobody thought that the Second Amendment enshrined a virtually unlimited right to possess firearms. The idea is “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime,” said former Chief Justice Warren Burger—a conservative appointed by Nixon—in 1991.
Similarly, the argument in NYSRPA v. Bruen that New York’s century-old gun control scheme was unconstitutional because it didn’t fit with the historical tradition around the time of the American founding is preposterous. James Madison, the principal author of the Bill of Rights, proposed two highly restrictive gun control bills in the Virginia legislature banning the carrying of guns outside of their owners’ property. They didn’t pass, but the effort indicates that Madison believed such laws were entirely allowed by the Constitution.
And this is not surprising. Madison was a smart guy, and regulating possession, sale, and use of deadly weapons is about the most legitimate activity imaginable for any state. For instance, Ancient Rome had strict rules about when and where weapons could be carried. Indeed, in Weberian terms, establishing control over the instruments of violence is part of what it means to be a state in the first place. The idea that a government scheme to, say, simply regulate the concealed carry of handguns is a priori illegitimate would have been regarded by all the drafters of the Constitution as staring madness. No idea so crazy would have even occurred to them.
To be clear, even if Madison had been against gun control, that wouldn’t invalidate the argument for sensible gun control today. The same is true of the historical situation in 1790 or whatever time Clarence Thomas randomly picks as the point where all policy should be frozen in amber. As Ulysses S. Grant wrote in his memoirs, “It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies.”
My point is that the current American gun cult has little or nothing to do with either history, the Constitution, or plain common sense. These are just micro-thin veneers over the products of the conservative movement’s postmodern grievance machine.
And this case is just a small part of the assault on the administrative state currently under way. Another pending Supreme Court case is likely to overturn the Chevron doctrine, a precedent holding that courts are supposed to defer to executive branch agencies in cases of unclear language. The intent is to remove control of core policy matters from the people’s elected representatives and place it in the hands of the judiciary, which can enact the preferences of random gun store owners by fiat. The effect with this gun case will be to allow just about anyone—disgruntled spouses, would-be criminals, or Mexican drug cartel straw buyers—to pick up a trunkful of full-auto weapons on their way to the local playground, school, or music festival. Be careful out there.
