Consistently Inconsistent

A year ago in Garland v. Cargill, the U.S. Supreme Court struck down a decision by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to apply a congressional ban on machine guns to bump stocks. Many commentators—including authors in this publication—predicted that Cargill would serve as the death knell for ATF’s application of the Gun Control Act (GCA) to weapon parts kits that can be used to make firearms, sometimes referred to as “ghost guns” because they were not subject to federal regulations. And yet, by a 7–2 decision, the Court ruled in Bondi v. VanDerStok that the government’s application of GCA to ghost guns was valid.

Justice Neil Gorsuch, writing for the majority, found the U.S. Congress’s effort to define the term firearm broadly to be critical. Rather than focusing solely on operable firearms, Congress also included a starter gun, a muffler or silencer, a frame or receiver, and instruments that are “designed to or may readily be converted to expel a projectile by the action of an explosive.” The inclusion of objects that “can readily be converted” seemed, to the majority, to clearly cover at least some weapon parts kits and partially complete frames or receivers.

As the author of Cargill, however, Justice Clarence Thomas viewed the cases as virtually identical because the government was attempting to rewrite a statute to expand their regulatory scope in both instances. In his VanDerStok dissent, Justice Thomas found ATF to be acting beyond the its authority because its rule defined “frames and receivers” too broadly, expanding the definition to integrate an object’s ability to be converted in the future or its accompanying marketing materials.

Perhaps unsurprisingly, these avowed textualists were debating whether a term could refer to unfinished objects. But VanDerStok was hardly focused on the definitions of terms alone. Justice Gorsuch highlighted that the GCA was enacted because “existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily.” Justice Gorsuch emphasized that the GCA’s goals—to keep “guns out of the hands of criminals” and to “assist law enforcement authorities in investigating serious crimes”—were evaded by companies advertising that their product did not require any serial number or registration, or that people building their own guns did not have to worry about a background check.

Yet, stressing the importance of Congressional purpose for the GCA sounds eerily similar to the “presumption against ineffectiveness” argument made by Justice Sonia Sotomayor in her Cargill dissent. Her dissent started, much like VanDerStok began, with Congress’s motivation: to deprive criminals of their “most dangerous weapon, the machine gun,” by restricting civilian access. The Cargill majority, on the other hand, focused much more narrowly on the mechanical specifications included in the statutory text, categorizing machine guns as only those that continuously shoot automatically without reloading and “by a single function of the trigger.”

Any concern raised about the inconsistency between Cargill and VanDerStok has merit, but it is a reflection of the Supreme Court’s general inability to provide consistent guidance to lower courts, policymakers, and the public. The discrepancy between the two ATF firearms cases could be explained by distinguishing between purposivism—a legal theory that a court’s statutory interpretation should reflect a statute’s purpose—and textualism. Justice Gorsuch was perhaps imbuing the GCA terms at the heart of VanDerStok with the GCA’s congressional purpose, while Justice Thomas took umbrage with an expansive view of the terminology that would allow mere parts to become a firearm subject to federal regulations based on something as unrelated as marketing materials.

More significant, however, is that the discrepancy between the outcomes of these two cases illustrates the problem with excruciatingly shortsighted analyses that obscure the basic objective of government, which is to serve the public. These statutes were passed to address pressing concerns of public health and safety, increasing government options to mitigate crime and gun violence.

Contrary to the exceedingly narrow focus of the Cargill majority, the National Firearms Act was not passed with a laser-like concentration on the “curved metal lever” and its “physical trigger movement required to shoot the firearm.” The congressional record is clear that the purpose was to minimize the threat of firearms that could shoot at exceedingly high rates with little effort.

Even Justice Samuel Alito conceded the point in his Cargill concurrence: “There can be little doubt that the Congress that enacted” the National Firearms Act “would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock.” The only basis for distinguishing machineguns from other firearms is their rate of fire, yet a bump stock increases a semiautomatic rifle’s potency from approximately 60–180 rounds per minute to a rate between 400 and 800 rounds per minute. Though this was unpersuasive to a majority of the justices in Cargill, VanDerStok offered a similarly simple statistic tied to congressional intent. Justice Gorsuch noted that 1,600 ghost guns were submitted for tracing by law enforcement agencies in 2017, but the number rose to more than 19,000 in 2021 with tracing efforts essentially futile.

Semantics debates over the true meaning of a word or phrase may capture the attention of the legal academy, but they distract from recognizing the government’s function to serve the public good. For example, VanDerStok also referenced the introduction of new technologies, such as 3D printing and reinforced polymers, to illustrate how “profound changes in how guns are made and sold” have occurred since Congress adopted the GCA in 1968.

Indeed, this connection between government action and public benefit underscores what many believe is the purpose and advantage of administrative rulemaking. Rather than relying solely and continuously on Congress to amend each statute whenever technology advances—an approach Justice Alito referred to as a “simple remedy” in his Cargill concurrence—agencies can use their knowledge and subject matter expertise to issue new regulations that further congressional goals. And as “simple” as it is for Congress to amend the law in response to new public threats, it is just as simple for Congress to amend the law to make clear that bump stocks, firearm parts, or forced reset triggers are not meant to be included within the regulatory scope of existing statutes.

But juxtaposing these two cases creates confusion about how a legislature is meant to thread the needle of text that is neither too broad nor too narrow. In VanDerStok, Justice Gorsuch emphasized the breadth of statutory language in the GCA as central to his decision, yet the Court has recently struck down agency action that relied on “vague terms” or “ambiguous statutory text.” Under the Supreme Court’s major questions doctrine, an agency must be able to point to “clear congressional authorization” for “major policy decisions” of “economic and political significance,” rather than “a merely plausible textual basis.” Though the major questions doctrine has yet to creep into analyzing firearm regulations, broad or ambiguous statutory language could be interpreted as a lack of congressional authority in future challenges to ATF regulations. Applying this framework then could create a narrow regulatory scope for firearms considering that the specificity used for machine guns was a significant factor in Cargill invalidating ATF’s effort to enforce its congressional mandate to restrict civilian access to high-rate firearms.

In terms of reducing gun violence, Cargill and VanDerStok provide confusion more than consensus about the policy options available. And the inconsistencies between the Court’s last two Second Amendment decisions—especially the applicable review standard—lurk in the background as even stronger limits to government regulation. The Court’s uneven methodological approach leaves itself as the arbiter of what qualifies as appropriate agency action, though the justices are even less accountable to the electorate than agencies. And as Professor Kate Shaw noted in this series last year, the Court “will do so not armed with decades of experience administering particular laws passed by Congress but with a wooden, formalistic, and acontextual approach to reading statutory text—informed by dictionaries and the common law and Latin phrases but not the on-the-ground reality of the problems Congress seeks to address in the statutes it passes.”

This Court’s enthusiasm for ignoring precedent and its willingness to change course from one term to another practically begs for challenges to agency regulations to continue. And without coherent guidance for lower courts to evaluate those challenges there will certainly be conflicting rulings. Thus, the Court’s inability to provide consistency and take seriously its role as the venue that settles legal questions to guide lower courts all but ensures they will maintain the steadily expanding power that they—unelected judges—have created for themselves to decide what is and is not good for the public.

Michael R. Ulrich is an associate professor of health law, ethics, and human rights at Boston University.