The conservative judges who now occupy large swaths of the federal judiciary are pro-gun extremists. They’re so deep in the thrall of the gun lobby that their anti-regulatory opinions are now incompatible with mainstream American views on gun safety. Conservative judges have even lurched to the right of the Republican presidents who appoint them. The proof of that came this week when the hyper-conservative US Court of Appeals for the Fifth Circuit threw out a Trump-era gun safety rule. The culture of violence embraced by these Federalist Society–approved judges is a greater threat to peace and personal safety than all the violent video games and Hollywood movies could ever be.
The rule the Fifth Circuit overturned, the one that was so offensive to their legal sensibilities that they threw it away, banned “bump stocks.” A bump stock is a physical attachment that can be affixed to the back of a rifle, the part that hits a shooter’s shoulder. It uses the rifle’s own kinetic recoil to make a shooter’s trigger finger move back and forth. It effectively turns a semiautomatic rifle (one where the shooter has to pull the trigger once per bullet fired) into a machine gun (one where the shooter pulls once and the bullets keep firing).
In 2017, a single 64-year-old gunman murdered 60 people and wounded over 400 firing over 1,000 bullets in about 10 minutes at a Las Vegas music festival. The carnage was made possible by a bump stock.The Las Vegas shooter was able to fire around nine bullets a second during his killing spree—slower than a military-grade machine gun, but fast enough to cause mass death.
In response, even Trump, a president who couldn’t be more beloved by violent gun owners if he went skeet shooting on Fifth Avenue, agreed that bump stocks should be outlawed. He ordered the Bureau of Alcohol, Tobacco, and Firearms (ATF), which works under the Department of Justice, to institute a rule “banning all devices that turn legal weapons into machineguns.” There was no political downside to this executive action: 82 percent of Americans think that bump stocks should be banned.
It was also simple to do, made possible by a small legal change. Federal law already bans the possession of machine guns. Indeed, the first meaningful federal gun regulation, the National Firearms Act of 1934, was known as the “Anti-Machine Gun Bill.” In 2019, Trump’s ATF updated its rules to classify extensions that make semiautomatic rifles perform like machine guns as “machineguns.” In any civilized society, that would have been the end of it.
But then the lawsuits started. Gun nuts argued that bump stocks do not fall within the statutory definition of “machinegun” and claimed that the ATF could therefore not tread on their sacred constitutional rights to mow down an amphibious force trying to secure a beachhead, or a deer, or whatever these ammosexuals feel the need to murder next. For the most part, liberal judges and the courts they control (like the Sixth Circuit and the D.C. Circuit) have rejected these arguments; conservative judges, however, have accepted them. In the case of the conservative Fifth Circuit, it ruled that since bump stocks merely make the trigger finger move back and forth rapidly, they don’t turn the gun into a machine gun. Technically, the rifle still functions as a one-bullet-per-pull weapon, even though the bump stock has the practical effect of requiring the shooter to pull the trigger only once to achieve a continuous fire of bullets.
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Because there’s disagreement among courts of appeal, the bump stock case will likely go to the Supreme Court, where six of the most zealous gun nuts in the country will likely strike down the bump stock ban and enable additional mass shootings.
The Supreme Court will eventually rule in favor of death. But the legal wrangling about the technical function of how these things are designed to kill us highlights a larger problem: the legal futility of one-off weapon bans. It’s a bitter pill for people to swallow, because bans focused on specific weapons are practically effective and feel politically achievable.
But legally, their impact is fleeting. They don’t offer permanent solutions to our problems. Gun bans are a temporary therapeutic, not a long-term cure to our disease of gun violence. That’s because the gun industry will always produce a newer, better bump stock. It will always make different, more deadly weapons. It will always refine the speed and killing power of firearms. And the plodding regulatory process simply will not, and likely cannot, keep up with whatever gunmakers do to murder people next.
Gun bans have a chance at staying power only if courts interpret the scope of the bans to include as many weapons as could possibly fit under the statutes. But conservative judges simply refuse to do that. As we see with bump stocks, conservative judges will take any technical argument made by the gun lobby arguing that two similar things are different, no matter how thin the distinction is, and use it to frustrate the gun regulations on the books and enable more killings.
Both the gun lobby and conservative judges know it takes a long time, and an unsustainable amount of political will, for laws and regulations on guns to change even slightly. While we wait for the laws to catch up (if ever), gunmakers know they can sell more weapons and Republicans know they can sell the fear of having those weapons taken away to win additional elections.
We have already seen how this all plays out thanks to the 1994 Federal Assault Weapons Ban. The Clinton-era law was effective. The Giffords Law Center reports that deaths from mass shootings were 70 percent less likely during the time the ban was in effect than in the time period before or after. But their report also noted the legal loopholes:
The relatively weak two-feature test and the inclusion of some purely cosmetic features created a loophole that allowed manufacturers to successfully circumvent the law by making minor modifications to weapons they already produced. The law also did not prohibit the continued transfer or possession of assault weapons manufactured before the law’s effective date. Manufacturers took advantage of this loophole by boosting production of assault weapons in the months leading up to the ban, creating a legal stockpile of these guns.
Of course, the biggest legal problem with the Federal Assault Weapons ban is that it no longer exists. The law contained a self-terminating sunset feature taking effect after 10 years, so it expired in 2004. Congress has thus far failed to reauthorize it. In 85 percent of our mass shootings resulting in four or more deaths, the assailant uses an assault rifle. But in 2022 Joe Manchin (and others) didn’t want to break the filibuster to reinstate the assault weapons ban after it passed the House, so I guess Americans suffered 648 mass shootings last year to preserve the Senate’s sacred traditions.
Gun makers know that every delay they can force through lobbying or lawsuits results in more sales. Every small change they can make to the function or classification of a weapon results in more sales. I was able to Google in seconds a site selling bump stock attachments for AR-15s for $150. The site says, “Shoot as quickly as you want, without compromising safety or legality.” I don’t know any incantation as cursed as that sentence.
Our gun laws are a deadly joke. They will continue to be jokes as long as we try to solve this problem one weapon at a time. It’s folly to try to regulate which particular overcompensation machine aggrieved men are allowed to smuggle into their trousers. Instead, we should regulate the category of people allowed to purchase any weapon, of any kind, at all. That is the constitutional framework laid out by James Madison in the Second Amendment, of all places. That amendment is clearly focused on regulating who gets to bear arms (“a well-regulated militia”), and not which particular arms those militias are allowed to bear.
But conservative judges won’t let us follow the Constitution, not if it causes pain and trauma to the gun lobby. And so more people will die. More children will die. Even when all the stars align for politicians to act or legislate, conservative judges murder that opportunity with intellectually dishonest readings of the few laws we have.
We can’t legislate our way out of this murderous hellscape, even if we have the political will to do so, because conservative judges won’t let us. Even Trump couldn’t overcome their bloodlust.
