The Media is Terrible at Covering Supreme Court Decisions
Their Focus is Exclusively on Substance; Process Matters Too
News stories about Supreme Court decisions are by nature, horrible. They almost always singularly focus on the substantive outcome, and distill it down to a “who won and who lost” dichotomy. The truth is seldom that black and white. The context in which most Supreme Court decisions turn are on procedural distinctions as well, meaning they are based on how laws are passed, rules are made and enforced and the interpretations in those laws that led them to getting to the Supreme Court. It’s not actually often that the Supreme Court hears a case and then gavels it down in a strictly personal opinion making kind of way.1
Last week, the Supreme Court decided a case involving the use of “bump stocks” with guns. As soon as the decision was made, news media scrambled with their “Breaking News” chyrons and immediate coverage of the decision, even though the hard copy of the decision had not yet been released yet. Among the things they specifically focused on:
The decision was made 6-3 with Justice Thomas, the most conservative member of the Court, authoring the decision.
The decision found unconstitutional an ATF rule that a “bump stock,” an addition added to the stock of a rifle that increases the speed of which semi-automatic weapons can fire individual rounds, essentially turns the gun into an automatic weapon.2
Democrats and gun rights groups decried the decision as horrible, and another in a long line of pro-gun decisions that seem to indicate the Supreme Court wants every person in America armed to the teeth in the name of the Second Amendment. All this during the week that the Sandy Hook victims would have been graduating had they not been shot down as kids in Newtown twelve years ago.
CNN was already noting how the decision indicated the further broadening of the Second Amendment, even as they acknowledged they hadn’t even read the decision yet.
Let’s all take a step back for a second. This kind of reporting feeds into the publics utter lack of understanding about our system of government, the checks and balances among the various branches of government, and how individual issues factor into that. Ever since the decision was made, I have yet to hear any news organization correctly report what happened, what the decision actually was, and how it came to be what it was. So, let’s get into it a second.
The Backstory
As with many gun provisions, the history of the ban on bump stocks goes back to a horrible mass shooting. In this situation, the bump stock ban was made in the aftermath of the Las Vegas Concert shooting in 2017. Outside the Mandalay Bay Casino during a country music festival, a shooter from the hotel shot into the crowd using numerous semi-automatic rifles that included bump stocks. When it was over, 54 people were killed and another 500 wounded in what would be the worst shooting in American history.
Calls for legislators to do more on gun safety, including registering firearms, bans on bump stocks and high capacity magazines and better background checks went nowhere. The NRA, which has had a solid grasp on GOP politics since 1994 and the passage of the Assault Weapons Ban/Comprehensive Gun and Crime Bill, consistently kills any gun rollback legislation and successfully killed this one. Nonetheless, the ATF passed a rule effectively banning bump stocks accordingly, using the argument that it basically turned a semi-automatic weapon into an automatic one.
Now, go back to your grade school civics class a moment and let’s chat about the powers of the three branches. I realize for a lot of you millenials and Gen Z kiddos, you may not have had these classes, but rest assured, if you did you would understand exactly why the rule (not law) was shot down by the Supreme Court. You see, Congress makes the laws. They set the direction and outlines of what the law is and laws say and do. All the Executive Branch (the President and the agencies charged with enforcing laws, including the ATF) can do is make rules interpretting those laws. If Congress has not made a decision on a topic, the Executive Branch has a little more lattitude to do more, but if Congress has acted on a particular topic, the Executive Branch cannot unilaterally go against that.3 In this case, Congress has defined what is an automatic weapon and a semi-automatic weapon.
So, here we have a case where the ATF basically reclassified any semi-automatic weapon with a bump stock as an automatic weapon. No functional changes were made to the firing mechanism in the gun itself. The gun still operates in a semi-automatic manner, although in a weird kind of jujitsu kind of way it uses the momentum from the recoil of the gun to fire each round faster, almost giving the appearance as an automatic weapon.
It gets to the Supreme Court, they hear arguments, and Justice Thomas, being the most senior member of the majority (Justice Roberts was the only other person who could have written it, being the Chief Justice in the majority, but passed on it giving Thomas the opportunity to author the decision), writes a pretty conservative view of the whole thing. Nonetheless, the procedural logic, that the ATF lacked the authority to go against laws passed by Congress to reclassify and redefine semi-automatic weapons with bump stocks as automatic, is sound. This was not a case decided on Second Amendment grounds; it was entirely decided on statutory interpretation.
When you read the dissent from Sonia Sotomayor (of which Kagan and Jackson signed onto it), it is a passioned plea for the intent. For many of us, we can relate to this position, strongly agree and advocate for it, even hold it up as a clarion call to do more about gun control. Of this, I am 100% in favor. There should be more gun legislation. We should be more restrictive of who gets a firearm and of what firearms are available. I’m tired of seeing the repeated mass shootings. I’m tired of reposting the same gun story everytime there is someone shooting up a school, or a mall, or a parking lot full of people somewhere. People should feel safe and free to venture into public without feeling like they are walking into a war zone. Nonetheless, we don’t get to turn a blind eye to the Constitution and the manner in which laws are made.
The Constitution matters. Laws matter. Voting matters. Who gets elected and appoints federal justices matters. If you want a different decision, we need to revise and reform existing gun laws. That means electing more Congresspeople who are in favor of it, across the country, not just in urban areas. It means electing a President who won’t advocate for arming every American out of sheer brown-nosing the NRA. It means having a President who will appoint a Federal Judiciary more in favor of less conservative interpretations.
But the Constitution still matters, and the “HOW” is just as important as the “WHAT.”
PurpleAmerica’s Cultural Corner
Before I hear from a lot of progressive activists about how I am just a slave to the NRA, and how more people are going to die from this decision,4 just know that I am a strong advocate for gun control and legislation. The fact that I’m not some gadfly who proselytizes on it relentlessly only means that I also believe in the Constitution and working within those parameters created by it.
But if you question my heart on the matter, here are a few posts I’ve made over the last couple years for you to consider. I often repost these whenever there is a mass shooting.
“A Proposal to Fix Gun Violence.”
“Another Tragedy, Another Inadequate, Disingenuous, Pro Gun Response.”
These are only the articles where guns were the main issue discussed. I still have dozens of others tangentially touching on the issue that you should consider reading as well.
Long story short, we have way too many guns in America, too many of the wrong kind of people have guns, and too many are too quick to use them.
PurpleAmerica’s Obscure Facts of the Day
There are more guns in circulation in America than there are American citizens. There are 393 million guns in private hands and only about 350 million Americans. The fact that 10% of all gun owners own the majority of arms as well is a frightening idea to ponder.
PurpleAmerica’s Final Word
Footnotes and Fun Stuff
For an example of this kind of logic, look to Bush v. Gore (2000). Perhaps the worst decision in my lifetime.
This gets into a lot of technical aspects about guns, but an “automatic” firearm means that you can depress the trigger and keep it down and the gun will keep firing. A “semi-automatic” firearm means that when you depress the trigger, it will fire only one round regardless of whether you keep it pressed down or not. A “non-automatic” firearm means you have to cock/load the barrel before you fire it. This includes most revolvers and handguns.
This kind of lattitude is called “Chevron Deference.” In a nutshell, it means where Congress hasn’t acted on something, the courts will defer to the agency’s decisions and interpretations on rules, but if Congress has acted, then they can’t go against what Congress said. Coincidentally, a major decision on Chevron deference is pending before the Court now and should be decided in the next couple weeks. In another side note, the Chevron matter that decided that case was written by Justice Scalia (who was an Administrative Law Judge before being on the Court), and the fact that the right wing of the Court is now reconsidering that in favor of a more conservative/literal interpretation of laws/rulemaking only underscores how far to the right this Court has gone off the rails.
Other than in the Las Vegas Shooting, I’m unaware of any other incident where people were shot using bump stocks. I’m probably wrong on that, but the number murdered with them are probably not as many as you think. The weapon of choice in most murders are still handguns in urban areas, though AR15 use among even those are rising, with or without bump stocks.