A few months ago, I responded to a preposterously illiterate piece by Dominic Erdozain over at CNN, in which Erdozain contended that Americans who disagree with him on the question of gun control “value[] guns more than life” and then insisted that the Second Amendment didn’t exist until 2008. This week, Erdozain has returned to CNN to write about the Supreme Court’s bump-stock decision, and I’m sad to report that, somehow, this second effort is even sillier than his last.
Setting the scene, Erdozain proposes that:
On Friday, in a display of smoldering defiance and bewildering logic, the Supreme Court overruled the Trump-era federal bump stock ban, charging the ATF with an “abrupt” reversal of its own criteria.
“Smoldering defiance”? “Bewildering logic”? What tosh. The reason that the Court “charged the ATF with an ‘abrupt’ reversal of its own criteria” is that, in 2018, the ATF abruptly reversed its own criteria. Between 1934, in which year the National Firearms Act (NFA) was signed into law, and 2018, in which year the Trump administration decided to bypass Congress and rewrite that law, the ATF had never classified a bump stock as a “machinegun.” Instead, it sent a number of letters to manufacturers who had sought clarification in which it clearly and consistently confirmed that the terms of the NFA did not permit the agency to act.
Here is one such letter. The key part reads:
Accordingly, we find that the “bump-stock” is a firearm part and is not regulated as a firearms under Gun Control Act or the National Firearms Act.
Here is another letter — sent by the Trump administration a few months before it reversed itself. It contains a full explanation of why bump stocks are not machine guns, and it tracks the majority opinion in Cargill exactly. The key part reads:
Since your device does not initiate an automatic firing cycle by a single function of the trigger, FTISB finds that it is NOT a machinegun under the NFA, 26 U.S.C. § 5845(b), or the amended GCA, 18 U.S.C. § 921(a)(23).
And here is the ATF itself, confirming in the Federal Register that it was reversing its prior position:
Since 2008, ATF has issued a total of 10 private letters in which it classified various bump stock devices to be unregulated parts or accessories, and not machineguns or machinegun conversion devices as defined in section 5845(b) of the NFA or section 921(a)(23) of the GCA.
Erdozain ignores all this. Instead, he complains:
Writing with the anxious solicitude of a parent defending a child, Justice Clarence Thomas delivered a hard, technical reading of the term “machine gun” and duly exempted the bump stock from its greedy clutch. Americans should be alarmed by the decision and the contortions of language with which it was achieved.
This is nothing less than an attack on the law itself. Thomas isn’t “defending a child”; he’s defending the constitutional prohibition on the Article II branch making law. As for his “hard, technical reading”? This was a statutory case. Thomas is a judge. It is his job to be “hard” and “technical” when evaluating statutes that, if misread or read in an over-broad manner, can land people in prison. Far from being “alarmed” by this, Americans ought to be thrilled. Contra Erdozain, there is nothing problematic about the Supreme Court upholding the elementary rule that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Arguably, that is its highest calling.
Next, Erdozain makes his complaint explicit:
The finding in Garland v. Cargill is that the ATF lacks authority to proscribe the sale of bump stocks because they do not qualify as machine guns under the terms of the National Firearms Act of 1934. There, a machine gun was defined as a weapon that can shoot more than one shot automatically, without manual reloading “by a single function of the trigger.” This phrase, which appears more than 30 times in the opinion, is the crux of Thomas’ argument, as he defends the court’s decision to legalize the deadly devices.
Of course that phrase “appears more than 30 times in the opinion.” Of course it’s “the crux of Thomas’ argument.” Its meaning undergirds the entire case. Erdozain complains that Thomas’s opinion is “semantic.” As opposed to what? The role of the Court in this instance was to determine whether, in the absence of a legislative change, the executive branch had been granted the authority to prohibit a device that had never been prohibited before. What other word besides “semantic” could we credibly use to describe that process? Would Erdozain prefer that Thomas had put on some music, poured a glass of wine, sat back in his chair, and decided simply to feel his way to the result?
Actually, don’t answer that, because the answer is clearly “yes”:
The case is cemented with quotations from the Oxford English Dictionary and the American Heritage Dictionary, which tells us that a trigger is “the lever pressed by the finger to discharge a firearm.” None of which will mean much to the concertgoers of that Las Vegas music festival in 2017.
This is a terrifying, mawkish, dangerous non sequitur, designed to elevate sentiment over rectitude and impatience over law. What happened in Las Vegas was an abomination. It did not, however, provide a general license for the suspension of our constitutional order. It is easy to uphold the rule of law when all is well and everyone is happy. The test comes when emotions run high. That something terrible happened in 2017 does not change the definitions in the dictionary, and it does not change the U.S. Code, either.
Fleshing out his gripe, Erdozain laments what he described as “crusading literalism.” But crusading literalism is precisely what I want from my courts in statutory cases such as these. As the late Antonin Scalia used to point out, the emphasis we place on our rules and procedures is our system of government:
Of all the criticisms leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form. . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men.
One presumes that, in response to this, Erdozain would say, “none of which will mean much to the victim’s widow.”
Eventually, Erdozain shows his hand and descends into the preposterous, crankish, historically illiterate insistence that the Second Amendment does not protect an individual right to bear arms anyway:
The court’s ability to conjure an argument from its antithesis is nothing new.
This is the same method that was used in the landmark District of Columbia v. Heller decision of 2008 — when the right to bear arms in the state militia became a right to own a gun for self-defense. There, as here, it was dictionaries and the presumed logic of words — rather than history itself — that defined the meaning. Under this paradigm, nothing is safe. And nor are we.
This is a stupid lie, peddled by stupid people. It is a conspiracy theory. It is trutherism on steroids. It is the refuge of the corrupt. As I noted last time Erdozain did this, the evidence against his position is so comprehensive as to make claims to the contrary shrivel into dust:
Really? The right of the people to keep and bear arms was “unknown” before the Heller decision of 2008? That would certainly be news to the American public, 73 percent of which told Gallup three months before that ruling that “the Second Amendment to the U.S. Constitution guarantees the rights of Americans to own guns.” It would also be news to the states, around 90 percent of which had their own constitutional rights before 2008; news to James Madison, who suggested during the debates over the Bill of Rights that the provision be placed next to the other individual rights listed in Article I, Section 9, rather than next to the militia clause in Article I, Section 8, clause 16; news to the architects of the 14th Amendment, who listed the right among the “privileges and immunities” they wished to guarantee; and news to pretty much every 19th-century jurist who examined the issue.
Still, while it is profoundly annoying to read this nonsense in mainstream outlets such as CNN, it is also useful, insofar as it confirms for the reader beyond any reasonable doubt that the person with whom they are dealing is not an analyst but a propagandist. It should be no surprise that Dominic Erdozain is so perplexed by the concept of law, given that he is perplexed by the key prerequisite to law — which is objective truth. Concluding his piece, Erdozain suggests that “there are many reasons to think about reforming the higher court,” and “decisions like this ought to be high among them.” And, at long last, we see the motive.