Blood on their hands.

June 15, 2024

The reactionary majority on the Supreme Court has dropped all pretense of following the law, so we should drop all pretense about the consequences of their actions: They will have blood on their hands. On Friday, that majority legalized machine guns by striking down a Trump-era federal regulation prohibiting “bump-stock” accessories for semi-automatic rifles. It is now legal for hundreds of millions of Americans to own machine guns—weapons of war favored by organized crime that Congress outlawed in 1934.

It is merely a matter of time until a “law-abiding citizen” exercising his “Second Amendment rights” uses a Supreme-Court-sanctioned machine gun to inflict mass deaths on schoolchildren and adults. When that happens, there will be a direct line from their opinion in Garland v. Cargill to the dead and mangled bodies killed by a weapon that can fire 800 rounds a minute with a single pull of the trigger.

The carnage will be horrific, but the reactionary majority will remain safe and snug in their private jets, wood-paneled chambers, and $5,000-a-plate dinners hosted by conservative advocacy organizations disguised as bar associations and historical societies. Their genteel world will be protected by heavily armed, armor-clad US Marshals who insulate the justices from the dangerous world they just made more dangerous.

The majority’s opinion in Garland v. Cargill is pernicious on multiple levels. The callousness of the majority’s conclusion is shocking. Their abandonment of settled rules of judicial construction is hypocritical. Their continued assault on the expertise of federal agencies charged with regulating complex, fact-dependent questions is part of their master plan to deconstruct the administrative state. Their willingness to base their decision on a lie about how bump stocks work continues the majority’s distressing pattern of making up facts to support otherwise unsupportable opinions.

For those interested in reading the opinion in full, it is here: Garland v. Cargill (06/14/2024)

Background.

The case arose from the mass killings in Las Vegas in 2017 by a shooter using semi-automatic weapons equipped with a bump-stock accessory. A bump stock replaces the original rifle stock and allows semi-automatic weapons to fire continuously up to 800 rounds per minute. Using semiautomatic weapons equipped with bump stocks, the Las Vegas shooter killed 58 people and wounded over 500 in a matter of minutes.

The 1934 Firearms Act prohibits civilian ownership of machine guns, defined as a weapon that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U. S. C. §5845(b)

While a semi-automatic weapon requires the shooter to pull the trigger after each shot, a weapon modified with a bump stock does not. “As long as the shooter keeps his trigger finger on the finger rest and maintains constant forward pressure on the rifle’s barrel or front grip, the weapon will fire continuously.” See 83 Fed. Reg. 66516.

The distinction between the need to pull the trigger after each shot versus holding a finger continuously on the trigger was the pivotal fact in the decision. And that is the fact about which Justice Thomas lied in his majority opinion.

After the Las Vegas mass killing, the Department of Alcohol, Tobacco, and Firearms (ATF) amended federal regulations to include bump-stock weapons in the definition of “machine guns” under the 1934 Firearms Act.

The opinion of the majority.

Justice Thomas, writing for the reactionary majority, ignored the plain language of the 1934 Firearms Act, overrode the findings and judgment of the ATF, and lied about the mechanics and operation of a bump stock, claiming that a shooter had to pull the trigger for each shot fired. As discussed below, that is a bald-faced lie. It is not humanly possible to pull a trigger 800 times per minute—which would be 13 times per second!

But even if we assume that Thomas’s opinion did not promote a deliberate lie, he presumed for himself the subject-matter expertise regarding firearms that belong to ATF.

Whatever Thomas’s motivations, his fiction about a shooter pulling a trigger 800 times per minute is the basis on which the majority ruled that semi-automatic weapons modified to be machine guns can now be legally owned by hundreds of millions of Americans.

The callousness of the majority’s decision is shocking.

The majority placed the profits of the merchants of death and the MAGA sponsors above the safety of the American people. They did so by effectively ignoring the tragedy in Las Vegas, citing it once and in passing. The majority opinion turns the tragedy into the animating force for “tremendous political pressure” to ban bump stocks—as if the widely held beliefs of a people desiring to protect itself is mere “politics.” It was not mere “politics.” It was the will of the people broadly shared by hundreds of millions of Americans—including then-President Trump.

The sterile and mechanical approach of the majority to a national tragedy is shocking. They are prisoners of their privilege and corruption. Terms limits for Supreme Court justices have never looked better.

The majority abandoned the settled rules of statutory construction

As Justice Sotomayor notes in her dissent, the majority ignored the statutory rule of interpretation known as “presumption against ineffectiveness.” As earlier explained by the late Justice Scalia, “The presumption against ineffectiveness ensures that a text’s manifest purpose is furthered, not hindered.”  In other words, courts should not credit interpretations that seek to evade the intent of a statute. (For more on this point, see Ian Millhiser in Vox, The Supreme Court just effectively legalized machine guns.)

As Sotomayor writes,

Congress sought to restrict the civilian use of machine guns because they eliminated the need for a person rapidly to pull the trigger himself to fire continuously. A bump stock serves that function. [¶]

The majority tosses aside the presumption against ineffectiveness, claiming that its interpretation only “draws a line more narrowly than one of [Congress’s] conceivable statutory purposes might suggest” because the statute still regulates “all traditional machineguns” . . . . [¶]

Every Member of the majority has previously emphasized that the best way to respect congressional intent is to adhere to the ordinary understanding of the terms Congress uses.

Justice Sotomayor then name-checks every majority member, citing their statements in previous opinions about the need to respect the “ordinary understanding” of the terms used by Congress. But the majority does violence to the ordinary understanding of the plain words in the statute by resorting to hyper-technical, metaphysical distinctions that separate the respective roles of the bump stock and the shooter in the process of firing.

Hogwash! As Sotomayor writes, “Machine guns do not shoot themselves.” The shooter pulls the trigger once and can unleash hundreds of rounds without ever pulling the trigger again. That functionality is what Congress prohibited. End of discussion.

The majority opinion is part of the Court’s assault on the expertise of federal agencies

To arrive at its result, Thomas and his cohort fashioned themselves as firearms experts with superior knowledge to the real experts at ATF. It is no secret that the reactionary majority is engaged in a long-term plan to neuter federal agencies to the extent possible and substitute the federal judiciary as a regulator of last resort. See Steven Vladeck, The Atlantic, The Bump-Stocks Case Is About Something Far Bigger Than Gun Regulations.

Vladeck writes,

[T] he real question in Cargill is not whether a rifle with a bump stock counts as a machine gun; the real question is whether we’re ready for a world in which that question will be resolved not by an expert executive-branch agency that answers directly to the president, but by federal judges who answer to no one.

We now live in a world in which the corrupt and corruptible Clarence Thomas is our nation’s preeminent firearms expert. And it will likely get worse next week if the reactionary majority overrules the “Chevron deference” doctrine in two pending cases.

Justice Thomas based his opinion on a lie

The reactionary majority has shown a shocking willingness to make up facts to support their preferred outcome. See Ian Millhiser in Vox, (6/30/2023), Neil Gorsuch has a problem with telling the truth, in 303 Creative v. Elenis. (“Gorsuch hands a victory to the Christian right by making false claims about an important First Amendment case.”)

Justice Thomas followed Justice Gorsuch’s unethical judicial doctrine known as “Facts? We don’t need no stinking facts! We can make up our own.” As noted above, Thomas engages in the fiction that a shooter can pull a trigger 800 times per minute. That is physically, humanly impossible—yet it is the opinion's foundation. For a detailed explanation of Thomas’s lie, see Lucian K. Truscott IV’s excellent essay in his Substack blog, Justice Thomas' Supreme Court opinion on bump stocks is a stinking, rotting carcass of a lie.

Where does the Cargill opinion leave us?

As you know, I am optimistic about democracy’s future in America—both short-term and long term. But opinions like Cargill—and Dobbs, Bruen, 303 Creative v. Elenis, Alexander v. NAACP, Trump v. Anderson—are the tip of the spear.

The Supreme Court is about to unleash a wave of reactionary, retrograde, lawless, partisan opinions designed to implement the fundamentalist, supremacist, nationalist agenda of the far-right Christian core of the MAGA movement. Sadly, it will get way worse before it gets better as far as the Supreme Court is concerned.

But in the ashes of every liberty abrogated or right trammeled upon by the Court are the seeds of resurrection. The Court is inflicting widespread injury on hundreds of millions of Americans. It is denying the dignity and personhood of women. It is disenfranchising the descendants of enslaved people. It is threatening the climate that young people today will live with into the next century. It is making society a more violent, dangerous place where everyone can carry a machine gun.

At some point, the victims of the Court’s decisions will understand that the only way to break the unholy grip of the reactionary majority on the throat of the Constitution is to elect Democratic majorities in both chambers of Congress and a president willing to enlarge the Court. It is as simple and difficult as that.

Legislation and regulations are informed by the political will of the people. The ATF outlawed bump stocks because the people demanded that its government do so. The reactionary majority believes the will of the people is mere “political pressure” to be circumvented by bad-faith wordplay paid for by the gun lobby.

Sadly, predictably, there will be another mass casualty event. And another. And another—until our nation experiences an event so shocking that even the Clarence Thomas’s of the world will be moved to recognize that the Framers did not intend the Constitution to hold its citizens hostages to weapons of war roaming the streets in the hands of criminals, madmen, and insurrectionists. I pray that we can avoid that dark day, but history teaches us that “thoughts and prayers” are useless against machine guns and armor-piercing bullets.

We will reform the Court—in our lifetimes. That is how bad it will get—and how quickly things will change when the worst happens. I wish it were otherwise. We have a path forward. We need only the political will to elect Democrats with the courage to restrain a lawless Court.

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Opportunities for reader engagement.

There are two important events described below. I hope you will take a moment to read about both.

Reproductive Justice

The threat to women’s reproductive freedom is serious. It will play a decisive role in elections for Congress, the Senate, state Supreme Courts, state legislatures, and the presidency. And abortion will be on the ballot in critical swing states such as North Carolina, Ohio, Montana, Pennsylvania, Florida, Arizona, and Nevada.

Join Healthcare Leaders for Democracy and Movement Voter PAC (MVP) for a virtual event on Reproductive Justice on June 26^th at 8:00-9:00p.m. ET/5:00p.m.-6:00p.m. PT.

You will hear from community organizers in key states and from MVP senior staff about their work to protect and expand reproductive rights. Registering and turning out voters to elect the right people on the state and national level is the key to protecting reproductive freedom and our democracy.

This free June 26th Zoom event is a fundraiser for MVP.  All funds raised go directly to grassroots groups.

Please RSVP here to register for the event.

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Two events with Adam Schiff on behalf of ten Senate campaigns

June 29 event, Los Angeles. Adam Schiff is running for US Senator for California. But he is also helping to raise funds in nine other key Senate races. If you are in Los Angeles (or nearby) on June 29, Adam will be hosting an in-person fundraiser with Senator Tammy Baldwin (WI), Senator Bob Casey (PA), Senator Jon Tester (MT), Congressman Colin Allred (TX), Congressman Ruben Gallego (AZ), and Congresswoman Elissa Slotkin (MI). Senators Jackie Rosen and Sherrod Brown will also benefit from the fundraiser but may not make it to the event.

This is a marquee event hosted by Adam Schiff to secure key victories for Senate Democrats. The tickets start at $1,000 (limited number)—which is usual for such events. If you can attend the June 29 event at the pricing levels indicated, it will be a once-in-a-lifetime opportunity. Sign up here: Los Angeles Senate Event hosted by Adam Schiff

August 14 event on Zoom. Adam has agreed to host a Zoom fundraiser for readers of Today’s Edition to support the same candidates. Donations for that event will start at $25. Our hope is that hundreds will attend and that some attendees will make more substantial donations. The readers of this newsletter recently supported a Zoom fundraiser for Colin Allred, and we raised nearly $50,000! It would be great if we could exceed that number by a substantial amount for the ten key Senate candidates.

The Today’s Edition event with Adam Schiff will be on Wednesday, August 14 at 5:00 pm Pacific / 8:00 pm Eastern. The sign-up link is here: Today's Edition Senate fundraiser with Adam Schiff.

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Concluding Thoughts

I struggled over the title of this newsletter. It is shocking, I know. I thought about diluting the title in some fashion, but nothing seemed to capture the outrage and callousness of the decision in Cargill. As with all difficult editorial decisions, I discussed with my wife and Managing Editor, whose judgment is unerring. When I told her the proposed title, I explained, “Someone has to speak for the dead.” She replied, “And the grieving.”

Today’s edition is dedicated to the memory of the dead and consolation of the grieving—past, present, and future.

I will talk to you on Monday.