If you want to know why people hate lawyers, just look at the majority’s opinion — which flies in the face of all common sense. One day it will be taught in law schools as the prime example of how literalism is the bane of law — and how conservatives have used it to thwart the law’s essential function of protecting human beings from harm.
At issue in the case is the meaning of the federal law that defines a machine gun as any weapon that can fire “automatically more than one shot … by a single function of the trigger.” In a typical machine gun, you hold down the trigger and the bullets keep coming. A bump stock is a clever workaround. You take your semiautomatic rifle and you attach the bump stock. Then you lean on it with your shoulder or body, and you pull the trigger. Your weight causes the gun to keep firing as your finger on the trigger stays in place. Presto, machine-gun action with your semiautomatic.
This mechanism became horrifyingly relevant in 2017 when a shooter killed 60 people in Las Vegas using several bump stocks in what remains the worst mass shooting in US history. That was the impetus for then-President Donald Trump’s Bureau of Alcohol, Tobacco and Firearms to regulate bump stocks as machine guns.
In any sane world, the agency charged by Congress with keeping firearms safe and keeping the public safe from military-grade firearms would be able to do this. After all, a bump stock’s entire purpose and real-world effect is to make a semiautomatic fire as fast as a machine gun. Congress passes laws for reasons. Its law have purposes. The only conceivable way you could even imagine that the bump stock shouldn’t be regulated as a machine gun would be if you thought that the purpose of a law has nothing to do with how it should be interpreted and applied.
Enter the late Justice Antonin Scalia. Over the course of many years, Scalia argued for exactly that bizarre position. His theory, which came to be known as “textualism,” posits that it’s too hard to figure out what Congress’s purpose is when it passes a law — even if Congress specifically states its purpose. Only the words of the law are the law, Scalia said. The purpose is irrelevant. Only the text should matter.
Scalia didn’t exactly invent this point of view. It’s recorded in the ancient history of statutory interpretation going back to the Greeks and the Romans. But most civilizations have considered this approach completely unworkable. Some thought that, in practice, interpretation should take purpose into account. Others decided that whoever was in charge of applying the law should have the authority to reconcile the text with its purpose if taking the text literally would produce an absurd result. Either way, the real-world result was supposed to be that the law, as applied, would comport with its clear purpose.
Starting as the pet theory of a lone voice on the Supreme Court, Scalia’s textualism gradually came to become orthodoxy among legal conservatives. You can see why: In a world where Congress passes general laws and agencies have to apply them, a lot of interpretation needs to be done to make the system work. Textualism gives legal conservatives, no fans of regulation, cover to limit the effect of laws that Congress has passed — like the machine gun law.
The result is sentences like this one from the majority opinion by Justice Clarence Thomas: The argument in favor of regulation “rests on the mistaken premise that there is a difference between a shooter flexing his finger to pull the trigger and a shooter pushing the firearm forward to bump the trigger against his stationary finger.” The only way this premise can be mistaken is if the law is an ass. There is, in practice and in purpose, no difference whatsoever between these two ways of firing bullets at machine-gun speed.
In the long run, I am confident that the law will rebel against this absurd and counterproductive literalism. No legal system worth its salt can sustain this kind of textualism, and none ever has.
But it will take time, and I myself may not live to see it.
Yet it seems extraordinarily likely that the bump stock case will someday be treated as the emblem of everything that is wrong with reading the law as though its purpose were irrelevant. Until then, there is only embarrassment and shame.
In Henry VI Part II, Shakespeare famously has a member of a rebellious mob propose that in a revolutionary utopia, “First thing we do, let’s kill all the lawyers.” He surely had in mind the way lawyers create their own language and logic that defies common sense and leaves people worse off. If the bump stock decision makes you feel the same way, I can’t blame you.
More on the Supreme Court From Bloomberg Opinion:
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.’
/opinion
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Published: 14 Jun 2024, 11:31 PM IST