The Chapman Law Review is proud to publish Professor Maureen Johnson’s article: Garland v. Cargill: It’s a Duck! Except at the Supreme Court . . . . Below, you will find the abstract from the article.

Garland v. Cargill: It’s a Duck! Except at the Supreme Court . . .

By Maureen Johnson

Abstracts

Garland v. Cargill may go down as one of the most notorious cases ever handed down by the Supreme Court. By a 6-3 tally, “bump stocks”—which essentially turn semi-automatic weapons into machine guns—were deemed outside the purview of the National Firearms Act of 1934 (NFA). Initially, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) determined that bump stock-converted weapons did not fall within the statutory definition of a machine gun. Amidst a bipartisan outcry following the 2017 Las Vegas Massacre, the ATF changed course, determining that bump stock conversions were indeed “machine guns” and therefore prohibited by the NFA. In her dissent, Justice Sotomayor called it like it was: “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.”

Whether intended or not, Cargill greenlights the path by which would-be assassins and insurrectionists can easily and legally arm themselves with the functional equivalent of machine guns. Cargill also enables both madmen and common criminals to up their firepower to match or even best that of law enforcement. While Congress presumably could reinstate the ban, that window could be closing under the “dangerous and unusual” Second Amendment carveout. Gun lobbyists are already floating arguments that, so long as an item is readily commercially available, it is not “unusual,” and therefore protected against categorical prohibition.

This Article argues for a change in the social and legal rhetoric surrounding gun reform to center indirect victims. Surprisingly, that corresponds to historical limitations on the scope of the Second Amendment. Of course, the individual and societal right to be free from undue terror needs to be balanced against the right to bear arms. That balance existed at the Founding. The open issue regarding the continued legality of bump stocks arguably offers the perfect baby step to return to the ideals of the Founders, set aside tribalism, and come together for the common good.