Why High Court Should Have Upheld Bump Stock Ban

The Supreme Court recently struck down a regulation crafted by the Trump administration banning "bump stocks."

Bump stocks are equipment attached to semi-automatic rifles allowing them to fire hundreds of bullets a minute. A bump stock was used in the mass shooting that killed 58 people and wounded more than 500 in Las Vegas.

The opinion was written by Justice Clarence Thomas, supported by the five other "conservative" members of the Court. It argued that the act of Congress banning machine guns (which can fire hundreds of bullets per minute) did not apply to bump stocks (which can fire hundreds of bullets per minute), and that the Trump administration's regulation was therefore not authorized by that legislation.

To arrive at this conclusion, the majority opinion engaged in constitutional theology that makes old arguments about how many angels could fit on the head of a pin look reasonable by comparison.

This was not a Second Amendment case. It just required the Courts to interpret an act of Congress, the constitutionality of which was not being disputed by the plaintiff.

Judicial review has a bigger impact than it did in this case when it considers a challenge to the constitutionality of legislation. If it finds legislation to be unconstitutional, overturning its finding requires amending the Constitution.

On the other hand, if a court has only interpreted an act of Congress, as in the bump stock case, Congress can overturn that decision merely by enacting a new law. Justice Samuel Alito, in a brief concurring opinion, pointed out that "There is a simple remedy for the disparate treatment of a bump stock and machine guns. Congress can amend the law ..."

Perhaps Alito does not realize the difficulty of getting any legislation restricting access to guns through Congress. Or perhaps he does realize it.

But in any event Alito's argument can cut both ways. If the Court had found that bump stocks are indeed machine guns under the law, Congress could have amended the law to make it clear that this is not true if it chose to do so.

I would like to propose a procedural rule for cases like this one:

When there are two reasonable interpretations of a law claimed to authorize a regulation, the Court should opt for the interpretation that would be most beneficial to the public. In this case my proposed rule would obviously have led the Court to hold that the regulation prohibiting bump stocks was indeed authorized by Congress.

Justice Thomas, in particular, would be in a weak position to object to a new rule, since he himself fashioned a new rule to be applied in Second Amendment cases:

“Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'” ( New York State Rifle & Pistol Association v. Bruen)

Ironically, the new rule proposed by Justice Thomas violated itself, since it had no roots in our country's "historical tradition." And his new rule made no sense, because changing weapons technology may call for regulations that would have not been necessary in the past.

And Thomas' new rule applied to decisions about constitutionality, meaning that to reverse them would require a constitutional amendment.

The record for quick passage of an amendment was the Twenty First, repealing Prohibition. Proposed by Congress on February 20, 1933, it was ratified by the necessary number of states on December 5, 1933.

But people were eager for a drink! Most amendments take years, not weeks, to take effect.

No constitutional amendment will be needed to rectify the bump stock decision. But in any event, thanks to this decision by the Supreme Court, Americans will continue to enjoy the right to be mowed down by guns that can fire 400 to 800 bullets a minute until Congress — in its wisdom — enacts legislation specifically banning bump stocks.