Las Vegas Review-Journal (Sunday)
On bump stocks, the Supreme Court is divorced from reality
Every so often, a Supreme Court oral argument is so divorced from reality that even a seasoned court-watcher like myself finds it jaw-dropping. The court’s consideration of whether the Bureau of Alcohol, Tobacco, Firearms and Explosives was right to define guns equipped with bump stocks as machine guns was exactly that shocking.
The justices spent almost the entire time debating the technical workings of bump stocks and the meaning of the words “function” and “trigger” in the federal law that bans machine guns. No one, justice or lawyer, bothered to mention that bump stocks let mass shooters turn their semiautomatic rifles into effectively automatic weapons that fire up to 800 rounds a minute.
The justices seemed unable to address the real reason the ATF, under then-president Donald Trump, redefined bump stocks as machine guns after the Las Vegas mass shooting Oct. 1, 2017. In that a horrific event, still — for now — the worst such carnage in U.S. history, the shooter killed 60 people and wounded 413. (More than 400 more were injured while desperately trying to get to safety.)
You might think the culprit in the Supreme Court’s failed oral argument is just lawyers being lawyers. After all, the technical legal issue before the court was not the Second Amendment and gun rights but rather a question of statutory meaning: Do guns modified with bump stocks count as machine guns?
It is worse than that. As it turns out, there is a perfectly respectable theory of how to interpret statutes that would begin — and end — with the real-world question of the purpose of the law. Since the obvious purpose of the machine gun law is to protect the public against the dangerous effects of weapons that can fire bullets at incredible speed without having to pull the trigger every time a bullet fires, the clear and logical conclusion is that yes, guns with bump stocks are machine guns.
The trouble is that none of the justices was prepared to say that the way to get the right meaning of the statute is to ask its purpose. That’s because the justices, over the past couple of decades, have fallen into the thrall of a truly dysfunctional theory of statutory interpretation, one known as textualism.
Textualism, brainchild of the late Justice Antonin Scalia, sounds plausible on the surface. It asks what the words of the statute mean, which is always a good place to start any act of interpretation, legal or otherwise. What’s wrong with textualism is that it ignores altogether the question of what the legislature’s purpose was in enacting the law. That question is, obviously, the most important second question to ask whenever interpreting any speech act by anyone. You first ask what they meant. Then you ask what they meant to achieve. Taking those two together, you can understand what they were telling you.
Scalia hated the question of what the legislature intended or what its purpose was, supposedly because judges asking those questions would have the opportunity to inject their own views into the meaning of the statute. The trouble is, if you ignore legislative intent and purpose, that gives the judges even more power to ignore the genuine meaning of the law. Instead of restricting judicial power, Scalia expanded it.
Over time, even some of the more liberal Supreme Court justices, like Elena Kagan, came to think of themselves as textualists. Astonishingly, Kagan referred to herself as a textualist during the bump stock oral argument — this despite the fact that she recently expressed her dismay at what textualism has become in the hands of the conservative majority.
Stephen Breyer, now retired, was the last justice to state openly that he believed in the central importance of legislative purpose. His former law clerk, Justice Ketanji Brown Jackson, ought to openly take up that mantle now. She did her best in the oral argument, focusing on the word “function” and claiming that the word should be understood broadly. But she didn’t seem to be convincing anyone else, mostly because she seemed to be focusing her argument on the meaning of the word “function” rather than on the function of the word in the context of the obvious legislative purpose.
The takeaway is that textualism is killing commonsense statutory interpretation. That’s bad when it comes to environmental laws and other regulations. It’s especially bad when the subject of the statute is supposed to stop the killing of actual people.