QAnon, the mainstream wing of the Republican Party, has opened an investigation into whether Kyle Rittenhouse is a transgender secret agent after he wavered for a few hours in his undying support for Donald Trump.
Rittenhouse, who became the poster child for the GOP after he traveled from Illinois to Wisconsin when he was 17 and shot two people to death and injured a third, posted on Xitter last week, "If you cannot be completely un-compromisable on the Second Amendment, I will not vote for you.
QAnon, the mainstream wing of the Republican Party, has opened an investigation into whether Kyle Rittenhouse is a transgender secret agent after he wavered for a few hours in his undying support for Donald Trump.
Rittenhouse, who became the poster child for the GOP after he traveled from Illinois to Wisconsin when he was 17 and shot two people to death and injured a third, posted on Xitter last week, "If you cannot be completely un-compromisable on the Second Amendment, I will not vote for you. — Read the rest
This week, a federal judge ruled that a major provision of New Jersey's "assault weapon" ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court's Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control. New Jersey's Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, Ca
This week, a federal judge ruled that a major provision of New Jersey's "assault weapon" ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court's Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control.
New Jersey's Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, California, elementary school the previous year—bans a list of specific rifle models, along with "any firearm manufactured under any designation which is substantially identical to any of the firearms listed above." According to guidelines that New Jersey Attorney General Peter Verniero issued in 1996, the latter description encompasses semi-automatic rifles that accept detachable magazines and have at least two of five features: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate one, or a grenade launcher. Illegal possession of "assault firearms" is a second-degree crime punishable by five to 10 years in prison and a maximum fine of $150,000.
In separate lawsuits that U.S. District Judge Peter Sheridan considered together, several gun owners and two gun rights groups, the Firearms Policy Coalition (FPC) and the Association of New Jersey Rifle and Pistol Clubs (ANJRPC), argued that the rifle ban is unconstitutional. Sheridan's decision in ANJRPC v. Platkin focuses on the Colt AR-15, one of the specifically banned rifles, because it was the model mentioned most frequently by the plaintiffs and the state.
"The information presented to the Court focuses largely on one specific type of firearm: the AR-15," Sheridan writes. "And given the variety of firearms regulated in the Assault Firearms Law and the nuances that each individual firearm presents, the Court's analysis of the Assault Firearms Law is limited to the firearm with which the Court has been provided the most information: the AR-15."
Sheridan, a senior judge who was appointed to the U.S. District Court for the District of New Jersey by George W. Bush in 2005, repeatedly refers specifically to "the Colt AR-15." But he also notes that "the AR-15 is produced by several different manufacturers," including FN, Ruger, Remington, Bushmaster, Rock River Arms, Wilson Combat, Barrett, Panther Arms, H&K, Lewis Machine, Olympic Arms, Palmetto State Armory, and Mossberg. So his conclusion that "the AR-15 Provision is unconstitutional" evidently applies to all AR-15-style rifles, regardless of who makes them or what they are officially called.
Before explaining his reasoning in reaching that conclusion, Sheridan expresses his dismay at the Supreme Court precedents he is required to follow. "It is hard to accept the Supreme Court's pronouncements that certain firearms policy choices are 'off the table' when frequently, radical individuals possess and use these same firearms for evil purposes," he says. "Even so, the Court's decision today is dictated by one of the most elementary legal principles within our legal system: stare decisis. That is, where the Supreme Court has set forth the law of our Nation, as a lower court, I am bound to follow it. This principle—combined with the reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation—necessitates the Court's decision."
Despite his personal policy preferences, Sheridan thinks it is clear that the AR-15 qualifies as a weapon "in common use" for "lawful purposes like self-defense"—the sort of arms that the Supreme Court has said are covered by the Second Amendment. He notes a 2022 estimate that Americans owned about 24 million "AR-15s and similar sporting rifles," and he highlights testimony that such guns are useful for home defense.
"Plaintiffs have shown that AR-15s are well-adapted for self-defense," Sheridan writes. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'" He adds that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he notes that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."
Those points should be disregarded, the state argued, because handguns are a more popular choice for self-defense and one that New Jersey allows. But as Sheridan notes, the Supreme Court's decision in the landmark 2008 case District of Columbia v. Heller, which overturned a local handgun ban, explicitly rejected that sort of argument. "It is no answer to say…that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed," Justice Antonin Scalia wrote in the majority opinion. "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon."
Like the law at issue in Heller, "the Assault Firearms Law's AR-15 Provision acts effectively as the total prohibition on a commonly used firearm for self-defense—AR-15s—within the home," Sheridan writes. And under Heller, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," Sheridan says, "the AR-15 Provision of the Assault Firearms Law is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."
Sheridan reached a different conclusion regarding another provision of New Jersey's Assault Firearms Law that the plaintiffs also challenged: the ban on "large capacity magazines" (LCMs). Legislators originally defined LCMs as magazines that hold more than 15 rounds but reduced the limit to 10 rounds in 2018. That restriction, Sheridan says, is "consistent with this Nation's historical tradition of firearm regulation"—the test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.
Sheridan acknowledges that the U.S. Court of Appeals for the 3rd Circuit, which includes New Jersey, has recognized ammunition as "arms" within the meaning of the Second Amendment. But he thinks the LCM ban differs from the AR-15 ban in a crucial way.
"The LCM Amendment passes constitutional muster because although the Second Amendment right is implicated, this regulation is in line with the historical regulations within the tradition of our Nation," Sheridan writes. "Put more precisely, the reduction of capacity is a limitation on firearms ownership. It is not a categorical ban preventing law-abiding citizens from exercising their Second Amendment rights [with] a weapon that is in common use for self-defense."
Sheridan notes that "detachable magazines did not exist in the Founding period" and that "it was not until the mid-l800s that patents for magazines falling within the definition of the LCM Amendment began appearing in the historical record." While "rifles capable of holding more than ten rounds became available" in the 1860s, he adds, "the magazine was fixed." And "despite the issuance of a patent for detachable magazines in 1864, firearms with detachable magazines were not widely available until the end of the Nineteenth Century."
Magazines that could hold more than 10 rounds, Sheridan notes, "did not exist in 1791," when the Second Amendment was ratified, and "were not widely available in 1868," when the 14th Amendment required states to respect the right to arms. He says it therefore would be plainly unreasonable to demand that New Jersey "locate a statute or regulation from that time" that closely resembles its LCM ban.
In Bruen, Sheridan writes, the Supreme Court "noted that current regulations may implicate either 'unprecedented societal concerns' or 'dramatic technological changes' different from those that existed when the Second Amendment was ratified in 1791 or when the Fourteenth Amendment was ratified in 1868. In those circumstances, 'a more nuanced approach' to determine if historical regulations are 'relevantly similar' to the currently challenged regulations must be utilized based on two measurements: 'how and why the regulations burden a law-abiding citizen's right to armed self-defense.'"
Sheridan thinks the LCM ban's "how" is "relevantly similar" to the scope of historical restrictions on pistols and Bowie knives. "The LCM Amendment places a burden on self-defense that is comparable to the burden imposed by the historical analogues," he says. "Like these restrictions, the LCM Amendment is…a restriction responding to safety concerns present in our time."
As for the LCM ban's "why," Sheridan says, there is evidence that LCMs "increase the lethality of mass shooting events." In recent years, he notes, magazines holding over 10 rounds often have been used in mass shootings, including "all" such crimes from 2019 through 2022.
The "stated purpose" of New Jersey's LCM ban, which is to "effectively slow down a mass shooter," is "well-served" by that restriction, Sheridan writes. "A limitation on magazine capacity stops the rate at which victims can be injured," he says, and "allows for time during which a shooter may be intercepted, interrupted, or hopefully, stopped." While "such a problem" may be "new to us," he adds, it is "analogous to other safety issues presented by [weapons] commonly used…for lawful purposes confronted by our Nation in the past."
Sheridan, who decries the "alarming frequency" of mass shootings, never acknowledges that they remain rare compared to other kinds of lethal crime. Based on the commonly used definition of mass shootings as public attacks that kill four or more people, they account for around 1 percent of homicides committed with guns. And while Sheridan implies that mass shootings are on the rise, the RAND Corporation notes that "chance variability in the annual number of mass shooting incidents makes it challenging to discern a clear trend" and that "trend estimates are sensitive to outliers and to the time frame chosen for analysis."
Sheridan nevertheless decries the "reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation," which both exaggerates the frequency of these crimes and takes for granted that they could be prevented if only politicians tried hard enough. In addition to a lack of political will, Sheridan implicitly blames the Supreme Court for saying that the Second Amendment puts some gun restrictions "off the table." Yet despite these views, he felt constrained to reject New Jersey's AR-15 ban.
At the same time, Sheridan was curiously reticent to extend his analysis by considering the illogic of banning "substantially identical" rifles and defining that category based on an arbitrary set of features. With or without those features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Does it make any sense, for example, to expect that banning rifles with both folding stocks and threaded barrels would have any noticeable impact on mass shooting deaths, let alone homicide generally?
While Sheridan's concern about the use of LCMs in mass shootings is more plausible, it is based on an inconclusive correlation. The public safety benefit of banning them is speculative, and Sheridan did not even consider the argument that the ability to fire more than 10 rounds without changing magazines can be important in some self-defense situations—a point that legislators take for granted when they exempt current and former police officers from magazine restrictions.
The FPC plans an appeal to the 3rd Circuit, which it wants to "address legal deficiencies in [Sheridan's] opinion," and "seek the full relief" that the plaintiffs requested. "Bans on so-called 'assault weapons' are immoral and unconstitutional," says FPC President Brandon Combs. "FPC will continue to fight forward until all of these bans are eliminated throughout the United States."
Twenty-five years ago today, two students at Columbine High School in Littleton, Colorado, killed 12 classmates and a teacher, wounded 21 more people, and ended their rampage with a double suicide. The murders dominated news coverage for weeks, first in horrified reaction to the slaughter and then as every faction with a moral panic to promote tried to prove their chosen demon was responsible for the massacre. Even after the nightly newscasts mov
Twenty-five years ago today, two students at Columbine High School in Littleton, Colorado, killed 12 classmates and a teacher, wounded 21 more people, and ended their rampage with a double suicide. The murders dominated news coverage for weeks, first in horrified reaction to the slaughter and then as every faction with a moral panic to promote tried to prove their chosen demon was responsible for the massacre. Even after the nightly newscasts moved on, the slayings left a deep imprint on popular culture, inspiring songs and films and more. They remain infamous to this day.
Why does Columbine still loom large? The easy answer would be that it was such a terrible crime that people found it hard to forget it. That is certainly true, but it doesn't fully answer the question, since there have been several terrible crimes since then that do not have the place in our public memory that Littleton does. More Americans, I suspect, remember the names of the Columbine killers than the name of the man behind the Las Vegas Strip massacre of 2017, even though the latter happened much more recently, killed five times as many people, and led directly to a bump stock ban whose constitutionality the Supreme Court is currently considering.
Another possible answer would be that Columbine was the first crime of its nature, but that's not really right. There were several high-profile mass killings in the decade before Columbine, including the Luby's shooting of 1991, an especially lethal but now rarely mentioned assault that killed 23 people and wounded 20 more. There was no shortage of shootings at schools before Littleton either—people may have a hard time believing this, but more students died in school shootings in 1993 than in the bloody Columbine year of 1999. It's just that those earlier killings were relatively small incidents, with one or two victims apiece, rather than the big body count in Colorado.
That was, and in fact still is, the most common form of school homicide. "The vast majority of fatal school shootings involve a single victim and single assailant…nothing like Columbine," says James Alan Fox, a criminologist at Northeastern University and one of the country's leading authorities on mass murder. In the early '90s, the public debate over school violence often centered around gangs, but that didn't reflect the typical campus shooting either. "Some was gang-related," Fox explains, "but most were just one student killing a classmate or teacher."
Nor was Columbine the first massacre to be both a mass shooting and a school shooting. In 1989, to give a particularly gruesome example, a gunman murdered five children and wounded 32 more at the Cleveland Elementary School playground in Stockton, California. Yet while that certainly attracted national coverage at the time, it didn't get the level of attention that Columbine did, nor did it linger as long in our cultural memory.
Fox has a thought about why that might be. "Stockton wasn't covered with live video," he says. "CNN was the only cable news channel and didn't have all that many subscribers. No video to show, the broadcast networks weren't about to preempt the soaps with nothing to show." With Columbine, by contrast, "a crew happened to be nearby."
Today, of course, virtually everyone is a camera crew of one. And our newsfeed scrolling isn't just interrupted when word spreads of a mass shooting: It is interrupted when there's a rumor of a mass shooting, even if the story turns out to be false. We have become hyper-aware of distant violence, and of the possibility of distant violence, and of the outside chance that the violence will not be so distant tomorrow. Columbine didn't cause that shift, but perhaps it presaged it.
Here's another possible answer: As those video images circulated through the media, Columbine changed the way the public imagines such crimes. If the popular stereotype of school violence three decades ago involved gangs, the popular stereotype of a mass shooter was a disgruntled postal worker. (Hence the expression "going postal," which is still used today though I doubt many younger Americans have any idea where it comes from.) There is a 1994 episode of The X-Files, "Blood," in which a mysterious force—apparently a mixture of chemicals and screens—compels people to commit mass murders; the character at the center of it appears in the first scene working in a post office, and at the end has taken a rifle to the top of a university clock tower (a visual reference to the 1966 tower shooting at the University of Texas at Austin). Watching it feels like an hour-long tour of the American anxieties of three decades ago. It's striking, then, that none of the killings involve children in jeopardy or take place at a K-12 school.
So perhaps Columbine created a new archetype, a new template—not just for ordinary people scared of spectacular crimes, but for alienated copycats plotting attacks of their own. In 2015, Mark Follman and Becca Andrews of Mother Jones counted at least 74 murder plots directly inspired by Columbine, 21 of which were actually carried out; a 2019 follow-up brought the total to more than 100.
To be clear: Those copycats may well have committed crimes without Columbine. The Colorado massacre gave them a script for fulfilling their violent impulses, but that does not mean it sparked their impulses in the first place. Nor did they all follow that script very closely: A surprisingly substantial number of those killers and would-be killers planned to use knives or explosives rather than guns. And Columbine wasn't necessarily the only crime that influenced them. In their 2021 book The Violence Project, for example, the criminologists Jillian Peterson and James Densley interview a perpetrator who studied three additional school shootings besides Columbine.
But these people all saw something in the massacre that appealed to them. "Plotters in at least 10 cases cited the Columbine shooters as heroes, idols, martyrs, or God," Mother Jones reported. In 14 cases, the plotters intended to act on the Columbine anniversary; three "made pilgrimages to Columbine while planning attacks."
On the 20th anniversary of the Littleton assaults, as Mother Jones was updating its count of Columbine copycats, Peterson and Densley noted in The Conversation that they had examined 46 school shootings committed since 1999, six of them mass shootings, and found that in 20 cases the attackers saw Columbine as a model. These included the murderers behind the two most infamous incidents of school violence in that period, the Sandy Hook massacre of 2012 and the Parkland killings of 2018. (The scholars also found evidence of influence abroad: In 2019, a pair of mass shooters in Brazil were reportedly inspired by the Columbine carnage.)
Peterson and Densley do not always agree with Fox—they are prone to using phrases like "mass shooting epidemic," a frame that Fox wisely rejects—but their conclusions in The Conversation are consistent with his comments about cable and live video:
Before Columbine, there was no script for how school shooters should behave, dress and speak. Columbine created "common knowledge," the foundation of coordination in the absence of a standardized playbook. Timing was everything. The massacre was one of the first to take place after the advent of 24-hour cable news and during "the year of the net." This was the dawn of the digital age of perfect remembering, where words and deeds live online forever. Columbine became the pilot for future episodes of fame-seeking violence.
Five years after they wrote that passage, even the reactions to a public mass shooting feel scripted, down to an almost fractal level—from the anti-gun activists mocking the phrase "thoughts and prayers" to the 4chan trolls blaming the slayings on the comedian Sam Hyde. Some years see more crimes like this and some years see fewer. But in both, we have made these murders into something they weren't before: a public ritual with assigned roles for everyone. That too is a legacy of Columbine.
Police in Uvalde, Texas stood by for an hour as a gunman embarked on a mass shooting at Robb Elementary School there, refusing to confront or otherwise intervene as he killed 19 children and two adults. Though widely condemned for their behavior and an international disgrace—at one point hundreds of officers from many departmenrts were milling around and doing nothing in particular beyond stopping distraught gathering parents going in themselves—an "independent" report commissioned by Uvalde has
Police in Uvalde, Texas stood by for an hour as a gunman embarked on a mass shooting at Robb Elementary School there, refusing to confront or otherwise intervene as he killed 19 children and two adults. Though widely condemned for their behavior and an international disgrace—at one point hundreds of officers from many departmenrts were milling around and doing nothing in particular beyond stopping distraught gathering parents going in themselves—an "independent" report commissioned by Uvalde has found the first responders didn't do anything wrong. — Read the rest
Kevin Monahan, 66, shot Kaylin Gillis dead after the car she was in took a wrong turn into his rural New York driveway. He will be in prison until he is at least 91 years old: "I think it's important that people know that it is not OK to shoot people and kill them who drive down your driveway," Judge Adam Michelin said, sentencing him to 25 years to life. — Read the rest
The post The man who killed a woman after a wrong turn into his driveway gets 25 years to life appeared first on Boing Boing.
Kevin Monahan, 66, shot Kaylin Gillis dead after the car she was in took a wrong turn into his rural New York driveway. He will be in prison until he is at least 91 years old: "I think it's important that people know that it is not OK to shoot people and kill them who drive down your driveway," Judge Adam Michelin said, sentencing him to 25 years to life. — Read the rest
On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean. On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats
On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.
On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the "best reading" of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.
The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The "interpretive rule" at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle's receiver to slide back and forth.
Officially, the purpose of that rule was merely to "clarify" that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.
Federal law defines a machine gun as a weapon that "automatically" fires "more than one shot" by "a single function of the trigger." The definition also covers parts that are "designed and intended…for use in converting a weapon" into a machine gun.
During Wednesday's oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It "fires more than one shot by a single function of the trigger," he said, because "a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence." An ordinary semi-automatic rifle, according to Fletcher, "fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot." But "a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push."
Fletcher argued that a rifle with a bump stock also "fires more than one shot automatically, that is, through a self-regulating mechanism." After "the shooter presses forward to fire the first shot," he said, "the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute."
Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock "can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired." The trigger "is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire," he added. "The phrase 'function of the trigger' can refer only to the trigger's function. It has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function."
Second, Mitchell said, a rifle with a bump stock "does not and cannot fire more than one shot automatically by a single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing." That process "depends entirely on human effort and exertion," he explained, because "the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated."
Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher's reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun's rate of fire.
According to Fletcher, "a traditional machine gun" can "shoot in the range of 700 to 950 bullets a minute," while a semi-automatic rifle with a bump stock can "shoot between 400 and 800 rounds a minute." As he conceded, however, the statute does not refer to rate of fire. "This is not a rate-of-fire statute," he said. "It's a function statute." To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.
"It seems like, yes, that this is functioning like a machine gun would," Justice Amy Coney Barrett said. "But, you know, looking at that definition, I think the question is, 'Why didn't Congress pass…legislation to make this cover it more clearly?'"
Justice Neil Gorsuch made the same point. "I can certainly understand why these items should be made illegal," he said, "but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns." That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.
The massacre inspired several bills aimed at banning bump stocks. Noting that "the ATF lacks authority under the law to ban bump-fire stocks," Sen. Dianne Feinstein (D–Calif.) said "legislation is the only answer." President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that "the law has not changed," Feinstein warned that the ATF's "about face," which relied partly on "a dubious analysis claiming that bumping the trigger is not the same as pulling it," would invite legal challenges.
Feinstein was right about that, and one of those challenges resulted in the decision that the government is now asking the Supreme Court to overturn. In January 2023, the U.S. Court of Appeals for the 5th Circuit rejected the ATF's redefinition of machine guns.
"A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of 'machinegun' set forth in the Gun Control Act and National Firearms Act," 5th Circuit Judge Jennifer Walker Elrod wrote in the majority opinion. And even if that were not true, Elrod said, "the rule of lenity," which requires construing an ambiguous criminal statute in a defendant's favor, would preclude the government from punishing people for owning bump stocks.
Gorsuch alluded to Feinstein's prescient concerns about the ATF rule's legal vulnerability: "There are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated." The ATF's attempt to do that, he said, would "render between a quarter of a million and a half million people federal felons," even though they relied on guidance from "past administrations, Republican and Democrat," that said bump stocks were legal.
Justices Brett Kavanaugh and Samuel Alito also were troubled by that reversal's implications for people who already owned bump stocks. Fletcher tried to assuage those concerns.
"ATF made [it] very clear in enacting this rule that anyone who turned in their bump stock or destroyed it before March of [2019] would not face prosecution," Fletcher said. "As a practical matter," he added, "the statute of limitations for this offense is five years," meaning prosecutions of people who owned bump stocks before the rule took effect will no longer be possible a month from now. "We have not prosecuted those people," he said. "We won't do it. And if we try to do it, I think they would have a good defense based on entrapment by estoppel," which applies when someone follows official advice in trying to comply with the law.
"What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the 5th Circuit decision?" Alito asked. "Can they be prosecuted?" Fletcher's answer: "probably yes." That prospect, Alito said, is "disturbing."
Kavanaugh wondered about gun owners who did not destroy or surrender their bump stocks because they did not know about the ATF's rule. "For prosecuting someone now," he asked, "what mens rea showing would the government have to make to convict someone?" Fletcher said the defendant would "have to be aware of the facts" that, according to the ATF's reinterpretation of the law, make bump stocks illegal. "So even if you are not aware of the legal prohibition, you can be convicted?" Kavanaugh asked. "That's right," Fletcher replied.
"That's going to ensnare a lot of people who are not aware of the legal prohibition," Kavanaugh said. "Why not require the government to also prove that the person knew that what they were doing…was illegal?"
Gorsuch mocked Fletcher's apparent assumption that gun owners can be expected to keep abreast of the ATF's edicts. "People will sit down and read the Federal Register?" he said to laughter. "That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog."
Maybe not, Fletcher admitted, but the publicity surrounding the ban and the legal controversy it provoked probably brought the matter to many people's attention. "I agree not everyone is going to find out about those things," he said, "but we've done everything the government could possibly do to make people aware."
Beyond the unfairness to gun owners who bought products they quite reasonably thought were legal, the ATF's about-face lends credibility to the complaint that its current interpretation of the law is misguided. If the ATF was wrong before, how can we be confident that it is right now?
According to the agency's new understanding of the statute, Mitchell noted, "function of the trigger" hinges on what the shooter is doing. But "function is an intransitive verb," he said. "It can't take an object grammatically. It's impossible. The trigger has to be the subject of function. It can't be the object."
Gorsuch picked up on that point, noting that the government had likened "function of the trigger" to "a stroke of a key or a throw of the dice or a swing of the bat." But "those are all things that people do," he said. Since function is an intransitive verb, "people don't function things. They may pull things, they may throw things, but they don't function things."
Gorsuch noted that the ATF is relying on "a very old statute" designed for "an obvious problem" posed by gangsters like Al Capone armed with machine guns that fired repeatedly "with a single function of the trigger—that is, the thing itself was moved once." Maybe legislators "should have written something better," he said. "One might hope they might write something better in the future. But that's the language we're stuck with."
What about the ATF's claim that a rifle equipped with a bump stock shoots "automatically"? Fletcher conceded that "an expert" can bump-fire a rifle "without any assistive device at all" and that "you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place." But he added that "we don't think those things function automatically because the definition of 'automatically'" entails "a self-regulating mechanism."
As the government sees it, a shooter creates such a mechanism by using a bump stock, notwithstanding the "manual actions" that Mitchell highlighted. "There's nothing automatic about that," Mitchell argued. "The shooter is the one who is pushing. It's human effort, human exertion. Nothing automatic at all about this process."
Barrett asked Fletcher how the ATF would treat an elastic "bump band" marketed as an accessory to facilitate rapid firing. "Why wouldn't that then be a machine gun under the statute?" she wondered. "We think that's still not functioning automatically because that's not a self-regulating mechanism," Fletcher replied.
Mitchell, by contrast, argued that Barrett's hypothetical product and a bump stock are "indistinguishable when it comes to 'automatically.'" Bump firing with either involves "a manual action undertaken entirely by the shooter," he said. "There is no automating device….It is all being done by the shooter."
Justice Sonia Sotomayor, who was sympathetic to Fletcher's argument, nevertheless implied that the legal status of bump stocks might not be as clear as the government suggests. "The back-and-forth here leads me to believe that at best there might be some ambiguity," she said. But if the statute is in fact unclear, the 5th Circuit said, the ambiguity should be resolved in a way that protects gun owners from prosecution for a crime invented by bureaucrats.
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