Takeaways from the Supreme Court arguments over bump stocks and machine guns

By John Fritze and Devan Cole, CNN

(CNN) — The Supreme Court’s conservatives pressed the Biden administration Wednesday to justify a federal ban on bump stocks, a device that can convert a semi-automatic rifle into a weapon that can fire far more rapidly.

But after 90 minutes of argument in the high-profile dispute, it appeared that the court was deeply divided over whether or not to strike it down.

Approved during former President Donald Trump’s administration, the bump stocks ban was created in response to the Las Vegas shooting in 2017 in which a single gunman who was later found with the bump stock devices fired on an outdoor music festival and killed 58 people.

Justice Brett Kavanaugh, a Trump nominee, worried that the prohibition would “ensnare” Americans who weren’t aware of it.

“Even if you’re not aware of the legal prohibition, you can be convicted,” Kavanaugh told the attorney representing the Biden administration. “That’s going to ensnare a lot of people who are not aware of the legal prohibition.”

Though the appeal doesn’t involve the Second Amendment, it once again thrusts the fraught debate over guns onto the Supreme Court’s docket as the nation continues to reel from mass shootings. It’s also the latest of several important cases this year that will give the court’s 6-3 conservative majority an opportunity to limit the power of federal agencies.

Here are the key takeaways from oral arguments:

Barrett and Gorsuch suggest Congress needed to approve a ban

One central theme of the arguments was the question of whether Congress – rather than the Bureau of Alcohol, Tobacco, Firearms and Explosives – should have approved the ban.

Conservative Justice Amy Coney Barrett said she was “sympathetic” to the Biden administration’s arguments in defense of the bump stock ban, but signaled she had concerns about a federal agency deciding the matter unilaterally.

The ATF reclassified the devices as machine guns in 2018. That would mean a decades-old law that bans those weapons in most cases would also apply to the devices.

“Intuitively, I am entirely sympathetic to your argument. I mean, it seems like, yes, this is functioning like a machine gun would,” Barrett said.

But, she added, that raised a question of why Congress didn’t pass legislation “to make this cover it more clearly.”

It’s a question Justice Neil Gorsuch, a fellow Trump nominee, also pressed, noting that several previous administrations chose not to reclassify the devices as machine guns.

“I can certainly understand why these items should be made illegal, but we’re dealing with a statute that was enacted in the 1930s,” Gorsuch said. “And through many administrations, the government took the position that these bump stocks are not machine guns.”

The court’s liberals seemed more certain the devices fell within what Congress intended when it banned machine guns.

Justice Elena Kagan urged the court to use “common sense” when deciding the case.

“It functions in precisely the same way,” Kagan said. “And a torrent of bullets comes out and this is in the heartland of what they were concerned about, which is anything that takes just a little human action to produce more than one shot.”

Las Vegas massacre looms large during arguments

The Biden administration attorney defending the prohibition repeatedly reminded the justices of the event that gave way to the ban several years ago: The 2017 Las Vegas massacre.

“After the Las Vegas shooting, the deadliest shooting in our nation’s history, I think it would have been irresponsible for the ATF not to take another closer look at this prior interpretation … and to look at the problem more carefully,” Brian Fletcher said in response to a question from Gorsuch about why the ban was issued by a federal agency instead of being codified by Congress.

Fletcher came back to the point just before arguments concluded, telling the court that the government thinks Congress enacted the Prohibition-era law at issue for the guns that existed then as well as “other kinds of devices that could be created in the future that would do the same thing.”

“It enacted and strengthened these laws because it did not want members of the public or our nation’s law enforcement officers to face the danger from weapons that let us shoot or spray many bullets by making a single act,” Fletcher said. “That’s exactly what bump stocks do, as the Las Vegas shooting, vividly illustrated.”

Justice Samuel Alito asked the attorney representing the ban’s challenger, Michael Cargill, if he could imagine the reasons why a lawmaker might ban machine guns but not bump stocks.

“Bump stocks can help people who have disabilities, who have problems with finger dexterity, people who have arthritis in their fingers. There could be a valid reason for preserving the legality of these devices as a matter of policy,” the attorney, Jonathan Mitchell, replied.

But Justice Sonia Sotomayor hit back against that argument, asking why Congress would think a person with arthritis would need to “shoot 400 to 7 or 800 rounds of ammunition under any circumstance?”

“If you don’t let a person without arthritis do that, why would you permit a person with arthritis to do it?” she asked.

Three buttons? Two triggers? Questions focus on the technical

Bump stocks replace a semi-automatic rifle’s regular stock, the part of a gun that rests against the shoulder. The device lets shooters harness the recoil to mimic automatic firing if they hold their trigger finger in place.

To function, the shooter must also apply forward pressure to the rifle. Many of the questions Wednesday focused on how the devices operate as the justices tried to assess whether they are covered by the law banning machine guns or not.

That law, which has its origins in the 1930s, defines “machine gun” as a weapon that fires more than one round with “a single function of the trigger.”

Fletcher laid out an argument based on the law’s text that seemed designed for some of the conservative justices. Bump stock firing, he told the court several times, requires only a single function of the trigger.

“A single motion both initiates and maintains a multi-shot sequence,” Fletcher said. “The weapon is a machinegun.”

Mitchell rejected that argument.

“A bump stock equipped rifle can fire only one shot per function of the trigger because the trigger must reset after every shot,” he said.

Kagan asked the attorney challenging the ban what would qualify: What about a gun that requires a shooter to press two triggers at once to fire – would that represent a “single function of the trigger,” she wanted to know. If so, she said, why wouldn’t applying forward pressure on the weapon, as in a bump stock, also qualify?

In the end, she said, interpreting the meaning of the text of the law is important. So, too, she added, was using common sense.

“I view myself as a good textualist,” Kagan said, using a term favored by conservative justices like Alito and Gorsuch. “But, you know, textualism is not inconsistent with common sense. Like at some point, you have to apply a little bit of common sense to the way you read a statute.”

“What the statute comprehends is a weapon that fires a multitude of shots with a single human action,” she said, whether that’s a traditional machine gun in which the shooter holds a trigger or applies forward pressure to harass the gun’s recoil.

“I can’t understand,” she said, “how anybody could think that those two things should be treated differently.”

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