A study in contrasts: Two firearms cases


Island hunters and gun owners will be very interested in two cases the Supreme Court ruled on last month involving the possession of firearms. They had opposite outcomes.

One involved a 2018 Executive Order by President Donald Trump banning “bump stocks,” a device replacing the stock on a weapon, allowing “it to fire at nearly the rate of a machine gun without technically converting it to a fully automatic firearm.” This case did not involve an individual’s right to own a firearm under the Second Amendment.

The other focused on whether the Second Amendment permitted a prohibition on gun ownership by a person under a domestic-violence restraining order. Clearly, this was a case of constitutional interpretation.

For years, the U.S. Department of Justice declined to characterize bump-stock conversions as machine guns, which civilians are prohibited from owning under the National Firearms Act of 1934. That law 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.”

Things changed in 2017 when a Las Vegas gunman in his 32nd-floor hotel room opened fire on a concert, killing 49 people and wounding 53. Twelve of his firearms had bump stocks, allowing him to fire 90 shots in 10 seconds. President Trump’s ban lasted until last month, when the court, in a six-to-three decision, overturned it. This ruling focused only on Trump’s order in light of the 1934 definition of machine guns.

Writing for the court’s conservative majority in Garland v. Cargill, Justice Clarence Thomas ruled that a firearm with a bump stock is not a machine gun, no matter how rapid its firing. He wrote that a shooter must “release pressure from the trigger and allow it to reset before re-engaging the trigger for another shot.”

The three liberal justices dissented in an opinion by Justice Sonia Sotomayor. She wrote that “when I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ ”

A week later, the court handed down another opinion involving firearms. Its focus was on a federal law that deprives a person of their Second Amendment right to possess a firearm if a court rules that that person is a domestic-violence abuser. 

In an argument with his girlfriend, Zackey Rahimi shoved her into his car, where she hit her head on the dashboard. He then took a potshot at a man witnessing the ordeal. The woman received a protective order from the court, prohibiting Rahimi from possessing a gun. A few months later, he was involved in several shootings. Police found a rifle and a pistol in his home, in violation of his court order. He was sentenced to 73 months in prison.

Rahimi claimed that a Supreme Court decision, written by Justice Thomas two years ago (New York State Rifle & Pistol Association v. Bruen), conflicted with the federal law, and that he should be allowed to own firearms. In that 2022 case, Clarence Thomas ruled that any restrictions on firearms must precisely match those in effect at the time the Second Amendment was ratified in 1791. His decision demonstrates the so-called doctrine of originalism: It means that a judge must use history and tradition when interpreting a law in light of any of the provisions of the Constitution.

As The Guardian has pointed out, “In the late 18th century, when the Constitution was ratified, men’s abuse of women was penalized by neither custom nor by the law. Men were allowed to beat their wives, their children, and any women they held authority over in their personal lives: Such beatings were not generally illegal, nor especially frowned upon, but understood as a private prerogative that all men held over the women in their lives.”

But something curious occurred in United States v. Rahimi: eight justices upheld the federal law. Chief Justice Roberts memorably wrote that cases brought to the court under the Second Amendment “were not meant to suggest a law trapped in amber.” More leeway is necessary. Roberts wrote that earlier laws deprived dangerous people of guns: there need only be “an analogue,” not a precise match. Only Clarence Thomas dissented: He demanded a precise match depriving those who abuse women of their firearms.

So a pair of gun-safety cases led to opposing outcomes. The first wrongly reversed Trump’s correct response to a horrific shooting. In the second, six justices correctly noted the limits of the doctrine of originalism. The Chief Justice wrote that courts must determine “whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” Justice Thomas might learn from his opinion.

Roberts acknowledged that times have changed since 1791, and seven justices followed his lead. It is preposterous to limit constitutional interpretation in the 21st century to 18th century practices and ideas.


Jack Fruchtman lives in Aquinnah. He is preparing a fourth edition of his book, “The Supreme Court and Constitutional Law.”


  1. I suggest that Mr. Fruchtman do a little homework regarding the work of John Cullen and the Las Vegas shooting.

  2. John– I have to say that I had never heard of this guy.
    But I googled him , including the words “las Vegas shooting”
    I’m really impressed that he knows the days of the week.
    And even more impressed that he can remember which day
    of the week a mass shooting or terrorist attack occurred.
    Not only that, but he figured out that the las Vegas shooter was
    probably laying down when he was slaughtering people from
    a long distance away. But I didn’t really get your point.
    I am not an avid believer in conspiracy theories after all…
    Perhaps, John, you could tell us how any of this
    “work” from this particular nut case has anything to do with this thoughtful article by
    Mr. Fruchtman.

    • Mr. Keller, I would venture a guess there are quite a few researchers with whom you are unfamiliar. My point is this: The government and corporate media accounts of many pivotal events of near and far history are utterly false – in other words – lies. So whether an essay or a public policy is in whole or in part based on those falsehoods, even when unintentional, none of us is well served.

  3. Having or not having a firearm is a constitutional issue and reasonable people have differing views but surely the ruling should not be based upon an emotional and ephemeral condition of domestic abuse no matter how sad it is.

  4. “Wise men speak because they have something to say; fools because they have to say something.” ~Plato

  5. Great quote, Jackie, and I think most know who you are referring to…there’s another saying and I think it’s attributed to Bill Murray…”It’s difficult to win an argument with someone who is smart and damn near impossible to win one with someone who is stupid”

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