Garland v. Cargill

We will hear argument first this morning in case 22976, Garland v.

Cargill.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Garland v.

Cargill.

This recent case overturned federal guidance that made bump stocks illegal.

The government argued that bump stocks are machine guns and thus illegal under federal law.

The gun nut argued that they are not.

Even though the creator of the device, speaking to ABC News, admitted.

You can take pretty much any semi-automatic firearm and then using a technique, you can make that gun shoot extremely fast.

So it's like a poor man's machine gun.

But yeah.

Nevertheless, through a series of elaborate feats of self-delusion, Justice Clarence Thomas held that the bump stock does not a machine gun make, allowing this military-grade killing machine to once again be in the hands of of civilians.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have plowed through our civil liberties like a lifted pickup plowing through a crosswalk.

I'm Peter.

I'm here with Rhiannon.

Or Tesla.

Hey.

And Michael.

I couldn't see under my seven-foot-tall hood.

Oops.

There was a lot of discourse today online about traffic cameras, and it's always entertaining to see the people who object.

Wait, object to what?

Having traffic cameras?

To speeding cameras.

Yeah.

Oh, okay, okay.

I've heard a lot of people throw around the term warrantless search.

And I'm like, there you go.

That's a good effort.

I like it.

Yeah, I don't hate that.

I like gas backs of this.

You're just like some asshole that likes to go 50 in a 35, and you're like, does this violate the Fourth Fourth Amendment?

I do have a Fourth Amendment right.

Yeah.

Do you think cops sitting on the side of the road with a radar gun all get warrants to

they're just like judge on the phone being like uh this car looks like it's going pretty fast.

I need to use my radar gun.

No, it's just word association.

They're like, Yeah, this is a search, right?

There's no warrant, warrantless, warrantless search.

That's illegal, right?

Yeah, right?

Yeah, yeah, yeah.

So I will be going 60 in that 30.

Uh, thank you very much.

That's right.

All right.

Today's case, Garland v.

Cargill.

This is a case from just a couple weeks back about guns, specifically about the legality of bump stocks, devices that functionally convert semi-automatic weapons into automatic weapons.

Now, for those who do not know shit about guns, I'm going to explain a little bit.

Unfortunately, a lot of technical gun nerd shit in this opinion.

Yeah.

So semi-automatic firearms are those that require you to pull the trigger to fire each bullet, right?

Automatic firearms are those that allow you to simply hold down the trigger and the gun will continuously fire.

Bump stocks are a type of stock that you install on a semi-automatic rifle to facilitate what is called bump firing.

Basically, if you press the trigger and hold the stock, the butt of the gun, firmly against your shoulder, the bump stock uses the recoil of the gun to essentially push the weapon back into your finger, firing it again.

And then the cycle repeats.

The way this generally works is that a regular stock would be firmly attached to the rest of the rifle, and a bump stock is sort of on a slide, allowing it to rapidly move back and forth with the recoil.

So the bottom line is instead of having to pull the trigger repeatedly, A bump stock lets you pull the trigger once and the gun will recoil back into your finger over and over, thus simulating automatic fire.

This can fire somewhere between 400 and 800 rounds per minute.

Right, which essentially makes a semi-automatic firearm a machine gun.

Or does it?

Right.

This is all relevant because the National Firearms Act, a law from the 1930s, essentially bans machine guns.

And the question in this case is whether a semi-automatic weapon with a bump stock qualifies as a machine gun under the law.

In 2017, the gunmen in the extremely deadly Mandalay Bay shooting in Las Vegas used a bump stock.

That caused the ATF, the Bureau of Alcohol, Tobacco, and Firearms to look into bump stocks and ultimately decide that they qualified as machine guns under the law and were therefore banned.

But the Supreme Court.

In a six to three decision, it says, not so fast, ATF.

Yeah.

You know, if you know a lot about guns, leave me alone.

Okay.

We're talking about guns here.

We're talking about some technical aspects of guns.

I don't want to see one fucking comment that's like,

well, actually, bump stock means

when you recoil, blah, blah, blah.

Shut up.

Yeah.

And we're going to talk about this later, but right-wingers do this especially.

You know, they try to act like they know more about guns than you.

And so therefore, they're right ideologically on guns, right?

Like they, they make that A to B and it's giving Napoleon complex, it's giving mansplaining, it's giving freak fascist campaign commercial where a woman running for Congress like blows up a car or whatever.

So let's not replicate that on the leftist side either, you know?

I don't fucking care.

I will also say this.

Any dipshit can watch a YouTube video with a little diagram and understand what's happening inside a gun.

It's genuinely not that complicated.

Exactly.

Yes, exactly.

So like Peter said, this case is about bump stocks, which are actually a firearms accessory, right?

You add a bump stock to a firearm and it's designed to facilitate that process of bump firing.

It's basically like creating a gun that can make a semi-automatic firearm fire like a machine gun, right?

In the tragic 2017 Las Vegas shooting, that gunman used semi-automatic rifles that had bump stocks on them to fire hundreds of rounds into the crowd at that concert.

He killed 61 people, including himself.

He wounded over 500 people.

Arguably, he is only able to do this, only able to achieve this kind of mass violence, mass killing on this scale because of the bump stock accessory on his semi-automatic firearm.

Yep.

And so this was the most deadly shooting in American history is my understanding.

And two, in case you're curious about what a semi-automatic weapon is, it's one that reloads automatically as as opposed to like a bolt action rifle or something where you have to manually put in a new bullet after each fire.

Right.

Bullets are chambered automatically, but they are not fired continuously.

Right.

Yeah, exactly.

And so, you know, prior to 2017, 2018, the Bureau of Alcohol, Tobacco, and Firearms, the ATF, had declined up until that point to classify bump stocks as machine guns.

But in response to the shooting in Las Vegas, the ATF looked at the policy again, reviewed their policy, reviewed their rules on this, and published a new rule, a changed rule in December 2018 to clarify that bump stocks, in fact, were machine guns as defined under the National Firearms Act, which again, more or less bans machine guns.

So let's take it to this case.

The ATF changed their rule in December 2018 and somebody sued.

Somebody got mad and sued over that change in policy.

The plaintiff in this case is a man named Michael Cargill, who owns Central Texas Gunworks in Central Texas, close to home.

In 2018, before the ATF had changed the rule, Michael Cargill purchased two bump stocks.

But then a few months later is when the changed rule was enacted, which treated bump stocks as machine guns.

And so in March of 2019, Cargill, as he needed to do under the new law now, he surrendered his bump stocks to the ATF, but he did so under protest, right?

Like putting in like basically like a formal complaint to keep his chance at litigation alive.

And in fact, he filed his lawsuit that very same day in the Western District of Texas.

Now, there was a trial and the federal district judge in that case ruled in favor of the government, agreeing with the ATF that the act of pulling the trigger on a bump stock firearm makes it automatic fire, makes it a machine gun.

That was appealed and a three-judge panel in the Fifth Circuit affirmed the judgment, agreed with the federal district court.

But of course, that was appealed and the whole Fifth Circuit on bonk takes the case and of course overturns because it's the Fifth Circuit.

And that's how we get to the Supreme Court.

Yeah.

Now you did skip over one important piece of the history, which is that this law originates from the 1930s.

Why do we have this law?

Because I don't want to be offensive here, but Italians were running amok.

Isn't it bank robbers?

They were robbing banks, right?

Bank robbers.

They were like, hey,

where are they?

The Tommy guns.

Two Tommy guns firing into the air.

It's like,

well, give us all your money, saying, wait, wait, wait.

Did y'all see?

I think it's UEFA Cup or Euro Cup or something.

Albania played Italy maybe two nights ago.

The fans outside the stadium, the Albanian fans took dry pasta and cracked it and broke it in front of the Italian fans.

That's really good.

All right.

So let's talk about the law here.

It is important to recognize that this case is not about the Second Amendment.

This is not a Second Amendment challenge to the law.

Instead, this is about whether guns fitted with bump stocks meet the definition of machine gun in the National Firearms Act.

And that means, folks, if you didn't know, we're going to do textualism.

Oh, yeah.

The relevant portion of the National Firearms Act defines a machine gun as any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger.

For our purposes, we can narrow that down just a bit to any weapon which shoots automatically more than one shot by a single function of the trigger.

Just so you know, under the law, this applies just as much to a device that can transform a weapon into a machine gun as it does to a machine gun itself, which is why we'll be talking about bump stocks, even though a bump stock in and of itself is not a gun.

Right.

The text of the law specifies that, that it's

any device can transform a weapon.

Yeah.

So I've described how bump stocks work.

When you pull the trigger, bump stocks utilize the recoil of the weapon to essentially push the weapon back into your finger repeatedly, many hundreds of times a minute, causing the gun to fire each time.

So the question is, is that a single function of the trigger?

Clarence Thomas says no.

God.

Now, before we do this, I'm going to say that I will be humoring the textualist approach here.

because I think we should address it on its own terms.

Sure.

But you do not necessarily need to humor the textualist approach, and we'll talk about that later.

Yeah.

Yeah.

Clarence includes six diagrams of the inner workings of a semi-automatic firearm in this opinion.

I'm not kidding.

Yes.

He includes a link to a GIF

in the footnotes of this opinion.

Just to give you a sense, within a semi-automatic gun, there is a latch holding a spring-loaded hammer in place.

When you pull the trigger, the latch releases the hammer, which then hits the firing pin, firing the weapon.

The hammer then swings back and latches back into place.

Thomas describes that whole cycle as a single function of the trigger.

But that is a kind of awkward definition.

So let's take a step back here.

Don't get lost in the technicalities, which I think is what Thomas really wants you to do.

This is a law passed to prevent people from accessing automatic weapons, machine guns.

It defines that as a gun that automatically fires more than one shot by a single function of the trigger.

What do you think that means?

Yes.

Don't you think the simplest definition is that a single function of the trigger just means a single pull of the trigger?

Right.

That would match both the colloquial and technical understanding of what an automatic weapon is.

And both the colloquial and, I think, technical understanding of what the function of the trigger is, which is to be pulled.

Right.

Right.

Like, right.

That's it.

Yeah.

Right.

So Clarence busts out these diagrams to make it look like this is a fucking engineering problem.

Right.

It's not.

And nobody could figure it out except for six conservatives on the Supreme Court, right?

Or no one can figure it out but some gun freaks

who can like declare themselves the experts on it.

Exactly.

So again, this law is meant to ban guns that shoot multiple rounds with a single trigger pull.

Bump stocks are devices that allow that to happen.

This is a simple issue, I think,

but he does not stop.

He says, quote, nothing changes when a semi-automatic rifle is equipped with a bump stock.

Except a lot changes.

I'd say 400 to 800 rounds changes, you know?

Yes.

He says the firing cycle remains the same.

Between every shot, the shooter must release pressure from the trigger and allow it to reset before re-engaging the trigger for another shot.

That's not true.

A bump stock merely reduces the amount of time that elapses between separate functions of the trigger.

I like how just Peter's reading the quote in every sentence.

You're like, nope, that's not true.

No, that's not true either.

The shooter doesn't have to relax the pressure.

They don't.

The whole point is that they just.

That's the whole point.

They don't have to relax the pressure.

Like, they just...

pull the trigger and the gun does the rest.

The stock does the rest.

Like you pull the trigger, the recoil pushes the stock back into your shoulder.

You press your shoulder forward so that the stock then gets pushed back into the trigger finger.

So if you maintain that pressure,

it's functionally automatic fire, right?

Yes.

You are not releasing the trigger in any meaningful sense.

Thomas continuously tries to drill down into the detail of the firing mechanism in order to sort of like purposefully lose the forest for the trees almost.

The bottom line is that automatic weapons, machine guns, fire multiple rounds with the single pull of a trigger.

Guns with bump stocks do that.

That's the very purpose of the device, right?

Traditional automatic weapons, they achieve it with an internal mechanism.

Bump stocks achieve it with a different mechanism, but the function is the same.

So you take a look at that, and you think these should qualify as machine guns.

It's relatively simple.

Thomas spends a lot of the opinion just sort of talking himself in circles where he's like, this is what a function of the trigger means.

And therefore,

this is only one function of the trigger.

And why?

Well, because I just defined a function of the trigger that way.

Yeah.

It happens over and over again.

He's trying to point out every distinction between bump stocks and traditional automatic guns that he can.

There's an idea in the law called the distinctions without a difference.

Yeah.

Right.

You can indeed point out many distinctions between the functions of a bump stock and a traditional automatic weapon.

That doesn't mean they are material or relevant for our purposes, right?

And he cannot evade the bottom line that these fire multiple shots with the single pull of a trigger, which is like very obviously what the law is trying to target.

Yeah, the National Firearms Act.

Yeah.

Yeah.

Then he adds that like, hey, even if you disagree with my definition of a single function of the trigger, there's another part of the definition.

The law says machine guns shoot, quote, automatically more than one shot by a single function of the trigger.

And he says bump stocks are not automatic because they require the shooter to maintain forward pressure on the stock with their shoulder in order to work.

Yeah, like there's like a physical technique that's kind of required for this.

If you've never fired a gun before, like you wouldn't be able to fire a semi-automatic.

At least not effectively.

Not effectively with 400 to 800 rounds per minute.

It might take you 10 minutes to figure it out.

Yeah, exactly.

Exactly.

Yeah.

So the dissent says, well, this is kind of a weird definition of automatic because even traditional automatic weapons require a consistent manual input.

You need to hold the trigger down, not to mention stabilize the gun, right?

Yeah.

Thomas says, okay, but bump stocks require you to do something besides just pull the trigger and therefore it is not automatic.

But that's not actually true.

I think a better way to look at this is that bump stocks just have a different mechanic for engaging with the trigger, right?

Not to mention, by the way, that any automatic weapon requires forward pressure from the shoulder.

That's how automatic rifles work.

I don't want to get too gun nerd here again, but like if someone's like, fire that rifle and try to do it without touching anything but the trigger.

Yeah.

Do you think you're firing that rifle?

If you don't put a lot of forward pressure, you know, this is like every cartoon of like someone firing a gun and it like spraying wildly as they like fall backwards from the recoil.

Yeah.

Is it not automatic because you need to hold the grip?

Yeah.

Right.

I just don't think it's a rational way to look at this.

And I think what's happening here is that, again, he's just searching for these distinctions that he can draw.

And then it leads you to these kind of obscene places.

Like eventually you hit this point where he's like, oh.

this is a completely different type of gun because it requires a slightly different amount of shoulder pressure.

And it's like, that can't be your fucking difference.

That can't be your fucking difference.

So that's, I think, the textualist analysis here.

I'm skipping over little bits that he threw in there.

So don't yell at me if you're some right-wing nerd or whatever.

Or a left-wing gun nerd.

We think that the Second Amendment jurisprudence coming out of this court is good.

Before we move on, I do want to point out one thing.

We are engaging in this textualist analysis because that is the primary mode of interpreting the law that everyone in these these opinions is engaged in.

But there are other principles we are allowed to engage in here.

Like, what's the purpose of the law, right?

It was to make it so that civilians can't easily get their hands on guns with high rates of fire.

Right.

Drawing a line between traditional automatic rifles and bumpstock-equipped rifles due to some technicality or another obviously runs counter to that purpose.

There's another principle, which is that when we analyze laws, we should try not to beclown ourselves.

We should try to avoid humiliating ourselves and our nation when we interpret these laws.

That's right.

Quite seriously, we should try to avoid ridiculous outcomes.

This is not something that I made up.

This is something that judges have talked about.

Posner would famously talk about this back in the 80s and 90s.

Classifying two different weapons that are functionally identical as distinct because of like abstruse engineering details that don't actually matter to the functioning of the weapon is ridiculous.

One way this is phrased is that we should always read laws so they make sense, not nonsense.

It's like a very simple axiom of statutory interpretation, and this is nonsense.

It's like such obvious nonsense.

It's a lawyer-brained thing to be like, well, even if This is dumb and absurd and obviously not what the legislature wanted, we must interpret it this way.

Right.

Because there is no other interpretation of the term single function of the trigger.

Like even if you believe that that is the case, this is still the worst outcome.

This outcome is still stupid.

So stupid.

Like you're allowed to think like an adult human being.

You don't have to do this bullshit.

And it's sort of telling how much textualism has like taken over the minds of lawyers that

people will talk about this case and be like, there is only one plausible outcome here.

And it's the Clarence Thomas majority position.

It's like, what are you talking about?

What are you talking about?

And I'm going to talk about this later, but I do want to go on the record early on saying that I think textualism is stupid, but I don't even think this is well done textualism.

No, no, no, no.

Very badly done textualism.

Yeah.

Like very, very badly.

It's so fucking stupid.

A gun that fires automatically by a single function of the trigger.

Yeah.

That's the text, actually.

You pull the trigger once.

And it keeps firing.

And he's like, well, your shoulder.

You have to tense your shoulders.

What the fuck are you talking about, dude?

Shut the fuck up.

It's so fucking stupid and frivolous.

Now, the last point that Thomas makes in the majority opinion is that before the Las Vegas shooting, the ATF did not consider bump stocks to be machine guns.

They investigated the issue.

They looked into it and they changed their position in 2018.

This is true.

Yeah.

Thomas interprets this as if it's like nefarious, right?

Like it's proof that the ATF is being dishonest in its interpretation.

I guess my response to that is like, well, this is how government works, right?

Like something happens, and then there's a policy response, right?

So the ATF is sort of looking at the Las Vegas shooting and being like, well, this is extremely good evidence in and of itself that these are machine guns.

That we should change the policy.

Yes.

The conservatives love doing this, especially like in the area of administrative law, where they'll talk about, oh, you know, there's an election and a new administration comes in and then policy changes.

And it's like, yes, that's, that's how fucking democracies work.

That's how it works.

And it makes sense.

Frankly, it makes sense that.

Something that maybe was viewed as obscure and not a big public policy issue because it was just confined to some fringe gun nuts and so wasn't taken seriously

then

generates the deadliest mass shooting in American history and injures 500 people.

And they say, whoa, wait a minute, maybe we should think about this more seriously.

And that's a functioning democracy.

That's not nefarious.

Like, I don't know, something about it really fucking boils my blood.

Every time they do this shit, it pisses me off.

And this is Donald Trump's ATM.

Yeah.

2018.

This is the Trump administration.

This is a federal agency under the Trump administration.

Trump gave a speech being like, these are machine guns.

Yeah.

After the deadly shooting in Las Vegas, I directed Attorney General to clarify whether certain bump stock devices, like the one used in Las Vegas, are illegal under current law.

That process began in December, and just a few moments ago, I signed a memorandum directing the Attorney General to propose regulations to ban all devices that turn illegal weapons into machine guns.

It's also worth pointing out that even though the ATF classified bump stocks as machine guns for the first time in 2018, they have defined a machine gun as one using a single pull of the trigger since like the mid-2000s.

So that's that had been around for nearly 15 years at the time of this rule.

That's not novel.

So that definition has been in play for quite a bit of time.

Yeah, really stupid stupid majority opinion, top to bottom, absolutely crazy stuff.

You get fewer words in the concurrence.

If we're moving on to Sam Alito's concurrence here, much, much, much, much, much fewer words.

This is barely three paragraphs of a concurrence, but still just as stupid for sure.

First paragraph of this concurrence made me squint so hard, I almost tore a retina.

Quote: There can be little doubt that the Congress that enacted 26 USC 5845 would not have seen any material difference between a machine gun and a semi-automatic rifle equipped with a bump stock.

But the statutory text is clear and we must follow it.

Do you see?

He's, it's this, I,

he's saying the Congress that wrote the statute.

He's like, they fucked up.

The Congress that wrote the statute wrote it in a way that is not even accurate to their understanding and what they intended to put in the statute.

Yep.

Right.

He's trying to be like, well, like, look, they, if they wanted a different outcome here, they could have written it in a different way.

Of course, he's talking about it from a Congress from the 1930s.

And so what you need to keep in mind is that this sort of like rigid textualism, it results in these situations where Congress can't fucking see every manifestation of like a firearm mechanism for 150 years in the future or whatever.

Right.

So if you do this sort of like hyper narrow textual interpretation, it builds inflexibility into these laws.

Congress was trying to use broad language that would encapsulate any potential firearms that might pop up, right?

Right.

And then the Supreme Court is being like, oh, they didn't account for this one.

Gotcha.

I think you're misunderstanding what the goal is.

Yeah.

And what Alito gets to, you know, by the third paragraph or whatever is like the statutory text is clear and we have to follow that.

Our hands are tied.

If Congress wants a different law, then they can change the law.

They should just amend the act.

They should pass another law.

And, you know, this is just like another example of conservatives on the court sort of giving lip service to how Congress could act, right?

Like as if Congress can just pick up and change laws all the time, like as if it functions that way, which it doesn't in reality.

But then also, this is the court kicking an issue to Congress that they know Congress isn't going to act on.

And actually, it's the court putting the ball in Congress's court, knowing that it's a dysfunctional system, knowing that this issue won't be taken up, knowing that they're not going to change anything.

And so it's like an abdication of the court's responsibility and just saying, well, Congress could change it.

We're not, if Congress could change it.

Yeah.

This is like a classic Roberts court move.

Like they did this with the Voting Rights Act and the pre-clearance formula.

They've done it in a number of cases where they kick an issue to Congress where they know their political allies in Congress will use one of the like 800 veto points in the legislation process to stop a bill from being passed.

The most noteworthy one being, of course, the Senate filibuster, where 40 senators from states that make up like 35% of the country by population can stop legislation dead in its tracks.

Like that's

certainly not the only veto point, but a big one.

And they know it.

And so they know they can play at judicial humility, but it's just like such obvious bullshit.

Right.

And I guess the good, like, if you want to read good faith into it, what you could say Alito is trying to do is signal that if Congress passes a law banning pump stocks, he won't vote to strike that down under the Second Amendment.

He will say that that's fine, right?

I think what this misses, and this is what bothers me about the court's jurisprudence about the administrative state generally, is that the relationship between agencies like the ATF and Congress goes both ways.

He's basically saying, well, the ATF has interpreted this incorrectly.

If they want that interpretation, we will need a law from Congress.

But the ATF interpreted it in a certain way.

If Congress thought that was incorrect, they could have changed the law.

Yeah, they do that sometimes.

Right.

They could have voted on a resolution clarifying,

like what they believe the intent of the law is.

Like, there's all sorts of shit that they could have done.

There are avenues for dialogue between the agencies and Congress.

And instead,

you get the court stepping in, being like, no,

no, no, no, no, no.

So it's not really about judicial humility.

In fact, it's about judicial veto.

Yes.

The ability of the court to veto agency actions at their own whim.

Yep.

That's right.

So there is a dissent.

It's written by Sonia Sotomayor, and it's, I think, very good.

My big picture takeaway is that Sonia is over the conservatives bullshit.

Yeah, yeah.

This is an opinion that's like, fuck fuck these guys.

Like, legitimately

seems tired of their shit.

She explicitly says at one point that this is not a hard case.

She at one point says, 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, and then follows with a sight to an opinion written by each one of them in reverse order of seniority.

So we got Roberts, then we got got Thomas, then we got Elite, like all the way down the line, like each one of you fuckers have said this before.

Like,

yeah, like, who are you kidding here?

But she's also very good on like, look, what are we talking about?

Like, from a textualist perspective, not a proposivist perspective, but like a textualist perspective.

The ordinary usage of this term, the function of the trigger is a pull of the trigger.

And she's like, you want to know who said that?

What's great evidence for that is the president of the National Rifle Association, the NRA, during a hearing, during the drafting of the National Firearms Act to the House, who gave them the term, the function of the trigger.

That's where the statutory language comes from.

And his testimony says.

He understood the quote-unquote distinguishing feature of a machine gun to be that by a single pull of the trigger, the gun continues to fire.

He emphasized that a firearm, quote unquote, which is capable of firing more than one shot by a single pull of the trigger, comma, a single function of the trigger, comma, is properly regarded as a machine gun.

You can't get clearer than that, you guys.

Yeah.

And then she follows that with, he did not say, quote unquote, the hammer slips off the disconnector just as the square point of the trigger rises into the notch on the hammer, thereby resetting the trigger mechanism to the original position.

Right.

Quoting Thomas.

Just like, she's like, who the fuck are you kidding?

It can't be the plain meaning of the word if you need diagrams and detailed knowledge of the inner workings of a mechanical device.

Like that can't be the plain meaning.

Like it's not.

Just on a textualist basis, it doesn't hold up.

Right.

It is interesting that she does seem to be a little snarkier, a little ruder.

Yes.

You know, I'm looking forward, I guess, to her just breaking down and becoming just a huge asshole toward them on the court.

You know what I kind of think?

Because there aren't other conservatives in concurrence or even one pulled off into dissent is that like, of course, it shows the myth of the 333 court where there are three centrist conservatives is absolutely untrue, of course.

But I also think like this is so awful.

The majority opinion is so awful and stupid on textualism that I think it just shows shows like how much the conservatives, even in the past couple of years, ultra conservatives have become even more ultra conservative.

And in the past couple of years, how some of the,

let's say, maybe slightly less conservative conservatives on the Supreme Court, like your Kavanaugh, like your Amy Coney Barrett, whatever, are just like now like phoning it in.

Yeah.

You know what I mean?

Like there's no effort to like be like,

well, we could think about it like this.

You know what I mean?

Like, just like, yeah, sure, Thomas, I'm signing on wholesale, you know?

Yeah.

Right.

Well, they have no interest in

proving their worth to moderate and liberal academics.

Right.

They are no longer playing to that audience.

Right.

Anthony Kennedy was playing to that audience just a little bit.

Right.

Well, these people just don't care.

Why get yourself yelled at at the next Federalist Society dinner by even deviating from Thomas's majority opinion here?

Yeah.

And I wanted to quote one last bit of Soto Mayor's dissent because I think it pretty much encapsulates the case in its entirety.

She says, before automatic weapons, a person who wanted to fire multiple shots from a firearm had to do two things after pulling the trigger the first time.

One, he had to reload the gun, and two, he had to pull the trigger again.

A semi-automatic weapon like an AR-15 already automates the first process.

The bump stock automates the second.

Right.

And I think that's like that literally could be the entirety of the opinion.

Yeah.

Yeah.

Could be the one paragraph, like the ATF is right.

This is it.

Like, it doesn't require a lot.

It's so

you have to do all the diagrams and shit to come to this conclusion because it's so backwards, right?

Right.

Like the idea that like a quote-unquote function of the trigger is meant to like like encapsulate the internal workings of the gun.

Yeah.

It's ludicrous.

It's so fucking stupid.

The whole point is that there are some guns that when you pull the trigger, they automatically fire multiple rounds, right?

This does that.

Right.

It's just through a different method

than most other automatic weapons.

That's all there is to it.

And yeah, that's why you need fucking gifts.

That's why you need to like pretend that you're the gun expert, right?

Because your pervert friends send you on hunting trips where you go like fucking shoot some endangered elephant and take a picture for Facebook.

You're like, trust me, I'm sort of the gun guy on the court.

Right.

Shut the fuck up.

You're a nerd.

This interpretation makes absolutely no fucking sense.

Yeah.

There's probably something to be said here about Thomas's good faith or bad faith.

And I think what happens here is that Thomas is working backwards from his conclusion because that conclusion is the conclusion that like gun rights groups want him to reach, right?

Right.

And this is sort of true of anyone with an ideological bias.

It's probably slightly more true for someone who takes millions of dollars in bribes.

But Thomas is like, all right, how do we get from point A to point B?

This law says single function of the trigger.

You only need to pull it once with a bump stock.

What's my way around that?

Right.

And then these weird right-wing groups provide like deeply perverted, highly technical, creating distinctions without differences sort of definition.

And they're like, well, this is what the function is.

This is what the function of the trigger is.

It's referring to like the cycle of the internal mechanism.

So it's actually not one single function of the trigger.

And Thomas is like, yeah, that's good enough.

Yeah.

Why don't I just copy and paste the diagrams from your brief, right?

Like those diagrams were from like the brief of like a psychotic gun rights organization.

Not that there are non-psychotic organizations these days, but this is sort of a good example of what this type of bad faith looks like.

It's not like he's like cackling it, like, look at this stupid argument, right?

This is a man that was entrenched in ideology.

swimming in bribery money.

Yeah.

You know?

Yeah.

And he is trying to reach the conclusion that his brain is screaming at him to reach.

Right.

Yeah.

So

before we wrap, I want to mention another bit of bad faith from Thomas that I think gets at some of the political dynamics between the two parties around the courts.

He quotes Diane Feinstein, who after the Las Vegas shooting, when ATF began considering reinterpreting

this law to include bump stocks as a banned item.

Feinstein said that these arguments, quote unquote, hinged on a dubious analysis and that the quote unquote gun lobby and manufacturers would have a field day with ATF's reasoning

and that legislation is the only way to ban bump stocks.

This is very similar to the student debt case where they quoted Nancy Pelosi saying that the executive didn't have the ability to cancel student debt, that it had to be done through legislation.

Democrats do this.

They do this all the time because they're stupid and

have a very stupid idea of the way government works.

And to them, the important thing is their seats of power and their arena of power, right?

And that is Congress.

And they don't think of judges, like left-leaning judges, as like on the same team with the same agenda as them.

And so they don't mind kneecapping efforts to make positive change via the executive branch or in the courts as a material demerit.

All they see is, well, this is how we're going to pressure some of our members to take what might be a tough vote for them.

Say, look, this has got to be done by legislation.

So sorry, you know, suburban swing district white lady, you have to vote on this and you got to come.

You know,

that's their thinking.

Whereas Republicans are like, no, we're all in the same team here.

They don't fuck up like this.

They do not fuck up their own policy agenda because it would take place in a different arena.

And this is like the inverse in a lot of ways or the converse of what the court is doing here, where they're like, well, look, we know that Republicans will never be able to actually legalize bump stocks via statute, but we can kick this over to Congress and they can block efforts.

at making it illegal again, right?

Like we know they can do that.

They work hand in hand, right?

They work in concert, whereas

Democrats are so focused on themselves, so myopic that they fuck themselves right thomas thought it was a big own to be like even

diane feinstein disagrees with your interpretation like she's a communist guess what buddy she was down to maybe 15 neurons tops when she said that 2018 yeah this is one of the oldest people in the world you're talking about okay

and no beacon of progressive ideology you know what I mean?

Like, yeah, Democrat, but at this point in her life, like

far to the right of many people in the party, you know, Diane Feinstein didn't say that shit.

Like, her chief of staff wrote a statement and put it out under her name.

Like, right, right.

Come on.

I think that's basically it.

Textualism is stupid.

This particular manifestation of textualism is stupid.

Yeah.

Clarence Thomas is evil.

This case is stupid.

The one thing we didn't talk about, I think because it's so obvious, is that like the material consequences of this

are twofold.

One, mass shootings, where people have the ability to fire way more bullets than any human being should be allowed to fire outside of a war zone.

A lot of people die.

A lot of people die.

Right.

And then two, and this is the upside, guys who like to fire guns at barrels really fast.

They get to do that now.

So those are the ends of the scales here.

The scales of justice.

You know, you don't want to go through a case like this just talking about the text, just talking about statutory interpretation.

But on the other hand, we've all talked about the gun rights debate so much and the stakes and consequences are so obvious that I don't think like they need to be mentioned at all, really, because we all fucking know them.

The only question is like, will our society hit some sort of fucking breaking point with some of this shit?

Just a little bit.

Yeah.

And I honestly, I honestly don't know.

Yeah.

And this is maybe just an example of, you know, the court not just fucking with the Constitution because it's not a Second Amendment case, right?

It doesn't have anything to do with the Second Amendment.

This is about statutory interpretation.

And so for those ideological goals, in whatever context the court is analyzing laws, whether that be the Constitution or other laws, they're going to reach those ideological goals.

And Democrats, get your shit together.

Learn to fucking govern.

Ditch the filibuster.

Fuck this bullshit.

Pass some laws.

Jesus Christ.

Jesus Christ.

People have been begging you to do this for like 15 years.

Just get it together.

What's wrong with you?

God damn it.

This is a fucking layup.

It's a layup.

Nobody likes mass shootings.

Like, what are we talking about here?

And by the way, like, the people who are like, oh, we need to keep bump stocks legal, they're not voting for Democrats anytime soon.

Don't worry about it.

These people have, the tree of liberty needs to be refreshed with the blood of tyrants from time to time, tattooed on their body, and they think of you when they look at it, Democratic senators.

Yeah, right.

All right, next week, premium episode, United States v.

Rahimi.

Usually we don't do cases for premium episodes, but the outcome of this case was kind of good.

It's just that the conservatives on the Supreme Court have humiliated themselves with their Second Amendment cases, and we wanted to talk about it a little bit.

Subscribe to our Patreon to listen to that episode and other premium episodes.

patreon.com slash five fourpod all spelled out.

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We'll see you next week.

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Sorry, pause.

Did Feinstein die?

Yeah, yes.

Great.

Okay, go on.

Good news.