MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL., Petitioners, v. MICHAEL CARGILL, Respondent
Interviewer(s): Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Sonia Sotomayor, Ketanji Brown Jackson, Brett M. Kavanaugh, Amy Coney Barrett, Clarence Thomas
Interviewee(s): Brian H. Fletcher, Jonathan F. Mitchell

John G. Roberts, Jr.: We will hear argument first this morning in Case 22-976, Garland versus Cargill.

Mr. Fletcher.

Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court.

To fire a rifle fitted with a bump stock, the shooter simply places his trigger finger on the built-in finger ledge and uses his other hand to press the front of the rifle forward.

As long as the shooter maintains that steady forward pressure, the rifle will fire continuously until it runs out of bullets, and it will empty a 100-round magazine like the ones used in the Las Vegas shooting in about 10 seconds.

Those weapons do exactly what Congress meant to prohibit when it enacted the prohibition on machineguns, and those weapons are machineguns because they satisfy both disputed parts of the statutory definition.

First, a rifle with a bump stock fires more than one shot by a single function of the trigger.

In common usage today as in 1934, a  function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence.

With a semiautomatic rifle, it fires  one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot.

But a bump stock eliminates those manual movements and  allows the shooter to fire many shots with one act, a forward push.

Now Respondent says that a separate function of the trigger happens every time the trigger on a traditional rifle moves backwards and releases the hammer, even if it moves without any further manipulation by the shooter.

But that is inconsistent with contemporaneous usage, does not account for guns with other kinds of triggers, and would make it trivially easy to evade the ban on mach ineguns just by automating the back-and-forth movement of the trigger after the shooter's initial pull.

Second, a rifle with a bump stock fires more than one shot automatically, that is, through a self -regulating mechanism.

Once the shooter presses forward to fire  the first shot, the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute.

Now Respondent says that  that cycle is not automatic because the shooter has to keep up  the forward pressure to keep the cycle going. But many traditional machineguns likewise  require the shooter to maintain backward pressure on the trigger to maintain continuous fire.

Either way, a single motion both initiates and maintains a multi-shot sequence, and either way, the weapon is a machinegun.

I welcome the Court's questions.

Clarence Thomas: Mr. Fletcher, how does a machinegun  -- what would I have to do to fire a machinegun?

Brian H. Fletcher: It depends on the machinegun.

Some, it's a push of a  -- a push of a button.

Some, it's a pull of the trigger. The st atutory definition is, does it shoot more than one shot automatically by a single function of the trigger?

Clarence Thomas: But I don't have to do anything else?  I don't  have to put pressure on it or anything else?

Brian H. Fletcher: It depends on the gun again.

So if you imagine -- I think what your  question is getting at is, if you take a traditional M16 rifle --

Clarence Thomas: Yeah.

Brian H. Fletcher: -- what we often think of when we think of a machinegun, you're right, to fire more than one shot, you pull the trigger and you have to hold it back, and as long as you maintain that backward pressure on the trigger, it keeps shooting.

Clarence Thomas: With a bump stock, what would I do different?

Brian H. Fletcher: You would do different the  -- both the initial motion and the motion that continues.

It's the same thing in the sense that one motion automates back-and-forth movement and results in multiple shots.

Clarence Thomas: So what  -- what --

Brian H. Fletcher: But it's a different motion.

Clarence Thomas: -- is happening with the  -- a trigger -initiated firing of a machinegun?  What do I have to do other than depress the trigger?

Brian H. Fletcher: With a traditional machinegun, again, take an M16 -- and, again, we think they're all machineguns -- but I understand the question to be take an M16, you  pull the trigger back and you hold it and it keeps shooting.

Clarence Thomas: Okay.

With  --

Brian H. Fletcher: With a bump st ock, you push forward, and that both initiates and continues the firing.

Clarence Thomas: And what is happening with the trigger when you have the recoil?

Brian H. Fletcher: That's exactly right. So I think this gets to Respondent's primary argument on function of a trigger, which is that the difference with a bump stock is that it fires multiple shots automatically by automating the movement of the trigger.

So my friend says the trigger moves back and forth every time a shot is fired.

Our view is that those subsequent movements of the trigger aren't functions of the trigger because they're not responding to separate acts, separate pulls, or anything else by the shooter. They're just the result of the --

Clarence Thomas: So what is happening with the trigger when someone doesn't need a bump stock to bump-fire a weapon?

Brian H. Fletcher: So this is the man -- the unassisted manual bump firing --

Clarence Thomas: Yeah.

Brian H. Fletcher: -- that's described,  where an expert can take a regular semiautomatic rifle and hold it loosely enough that they can do something like bump firing.

And I think, in our view there too, there's just one function of the trigger because the first push starts the sequence and then the sequence continues.

The ATF explained and we agree that that's not automatic because there's no self -regulating mechanism.

The user has to control the recoil.

Clarence Thomas: So what's the difference?  The same thing is happening with the trigger.

Brian H. Fletcher: The same thing's happening with the trigger, and I think that's why we would say, with manual bump firing, there is just a single function of the trigger. There's one action that initiates the firing sequence.

We think it's not automatic because there's no self-regulating mechanism.

The user is having to do all of the work that the bump stock automates for you on a rifle fitted with a bump stock.

John G. Roberts, Jr.: I'm have  --

Amy Coney Barrett: What about -- oh.

John G. Roberts, Jr.: --having a little trouble with the non-trigger hand.

Are you just holding the gun, or are you moving, pushing it forward and then back and forward and then back?

Brian H. Fletcher: So I think the best place to look for this, Mr. Chief Justice, is the district court's factual findings, which are at pages 10  -- 102a to 104a of the Petition Appendix.

And what he explained is that from the shooter's perspective, it's just one continuous forward push.

The expert at trial said, mentally, you're doing nothing but pushing forward.

Now, if you look and watch the slow  --

John G. Roberts, Jr.: Continuous -- continuously pushing forward or  --

Brian H. Fletcher: You --

John G. Roberts, Jr.: In other words, are you holding it with pressure or are you moving your hand?

Brian H. Fletcher: So what you are doing -- I want to distinguish between those two things actually --

John G. Roberts, Jr.: Yeah.

Brian H. Fletcher: -- because what you are doing is just pushing forward.

Now, if you look  at the videos that we cite in Footnote 1 of our reply brief, some of them are in slow motion, and they show that when the shooter is doing this, the hand is moving back and forth very fast, 600 times a second.

That's not happening because the shooter is able to move their hand back and forth 600 -- or -- or, I'm sorry, 600 times a minute.

That's not happening because the shooter can move their hand back and forth that fast.

That's happening because every time a shot is fired, the recoil drives the  -- the rifle backwards, overcomes that steady forward pressure momentarily.

That's what lets the trigger reset and then another shot to be fired again. So, from the shooter's perspective, we view  it as one act, and we think that's what the district court found.

Elena Kagan: So would it be right to say that the pressure is -- you know, on a typical machinegun where you're pulling and you're feeling, you know, continual backward pressure, and on this, you're feeling continual  forward pressure of the opposite hand.

Brian H. Fletcher: Exactly.

Elena Kagan: Is that right?

Brian H. Fletcher: Exactly right.

I think that's exactly what the district court found.

Amy Coney Barrett: Mr. Fletcher, so I did watch all of these videos and try to figure out exactly what this looks like.

And I just want to ask you about this bump-firing thing.

Brian H. Fletcher: Mm-hmm.

Amy Coney Barrett: So what if I design something and I call it a bump band, because I gather you can do this with --

Brian H. Fletcher: Yeah.

Amy Coney Barrett: -- bands and you can do it with your belt loop.

So what if I design and market something I call a bump band to help me turn my semiautomatic, you know  --

Brian H. Fletcher: Yeah.

Amy Coney Barrett: -- in the same way? Why wouldn't that then be a machinegun under the statute?

Brian H. Fletcher: So we think that's still not functioning automatically  because that's not a self-regulating mechanism.

My understanding is that what those devices do is they help the shooter keep their trigger finger still, but the shooter still has to manage the movement of the rifle back and forth, hold it so that it moves backwards just the right distance in just the right direction, then hold it  again so it moves forward in just the right distance in just the right direction.

And what makes a bump stock different is that it's a device that is built for just this purpose.

It has the finger ledge that holds your finger in place, but then it also has a sliding function built in so that when a shot is fired, the recoil automatically push es the rifle back, lets it disengage from the trigger so the shooter doesn't have to manually release it, and then allows it to slide forward again, again, just the right distance in just the right direction.

Amy Coney Barrett: Maybe Mr. Mitchell can help  me understand from his point of view what that means, because it seems like it helps you do it better and in a more stable way but that it functions the same way.

But -- but the other question I have  --look, intuitively, I am entirely sympathetic to your argument, I mean, and it -- and it seems like, yes, that this is functioning like a machinegun would.

But, you know, looking at that definition, I think the question is, why didn't Congress pass that litigation  -- I mean that legislation to  --to make this  cover it more clearly?  I think your argument depends on volition, right, so let me give you a hypothetical, and then tell me if you think this satisfies the definition of a machinegun.

Let's imagine someone builds a fully automatic machinegun, and I won't try to come up with the technology for exactly how this is going to happen, but they install a tripwire on their property and they just leave the gun there unattended, walk away.

Somebody trips the wire  and then it begins shooting lots of rounds.

Brian H. Fletcher: Yeah.

Amy Coney Barrett: Does that satisfy your definition of a machinegun?

Brian H. Fletcher: I think it does, yes.

Amy Coney Barrett: Why?

Brian H. Fletcher: Because a single act and, you know, I think we've used different words like volition.

I think what we're -- the idea that we're trying to get at is, does some separate act, is that required, some manual act required for each shot, or is a single continuous act resulting in the firing of multiple shots.

That's an unusual way to activate a machinegun, obviously, but I think, even if it's a tripwire, that's still one act by a person that initiates a multi -shot fire.

Amy Coney Barrett: But it's an unintentional act in the same way you might say if your finger -- because, for the bump stock to work, you still have to have your finger right there, right?

Brian H. Fletcher: You do, yeah.

Amy Coney Barrett: And  --and it  -- and it  -- according to the Fifth Circuit, what you're focusing on is the definition, you know,  it looked at it from the perspective of the gun and the machinery of the gun, but you still do need your finger there to kind of pull back the trigger the same way that you would if it was volitional.

Brian H. Fletcher: So not quite, actually, Justice Barrett.

I think this is important. When  --in the typical way that you fire these bump stocks -- and this the Fifth Circuit acknowledged at 21a of the Petition Appendix  -- you don't initiate firing by pulling backward with your trigger finger.

The trigger finger stays completely stationary.

Amy Coney Barrett: You push.

Brian H. Fletcher: You initiate by pushing.

And what the expert said and the district court found is you could replace your trigger finger with a little plastic post attached to the bump stock and it would work in exactly the same way.

So it's --it's true that you have to keep your finger there, and if you moved your finger away, the bump firing sequence would stop, but that's a pretty trivial additional  piece of input from the shooter.

Really, what's starting and continuing the sequence is the push forward.

Amy Coney Barrett: Thank you.

Ketanji Brown Jackson: Can I ask you, just kind of maybe stepping back a moment, why do these various distinctions with respect to operations matter?  I mean, I -- I read this statute to be a classification statute, that Congress is directing everyone or us to identify certain kinds of weapons, and those certain kinds of weapons are being treated in a particular way. They're being prohibited.

And so I guess what I'm trying to understand is, if  -- if it's true that, you know, the distinction that is being focused on here is the one between the movement of the trigger going back and forth or the trigger staying the same, I'm trying to understand why that matters for the purpose of this classification.

Brian H. Fletcher: So I think we don't think it  does because we don't think "function of the trigger" means movement of the trigger. We think it means act of the shooter.

That's how it was used at the time by educated speakers of English, including the president of the NRA when he proposed the language that became this statute to Congress,  and ever since, people have equated function of the trigger with pull of the trigger.

That makes perfect sense if, like us, you read "function of the trigger" to mean some act by the shooter.

I don't think that works on my friend's account.

Ketanji Brown Jackson: But I guess I'm wondering -- I thought your answer was going to be we don't think it matters because of something you said in the intro, which was that's -- these are the kind of weapons that Congress were -- was intending to prohibit because of the damage they cause or something like that.

Like I read the word "function" to be doing significant work in this statute.

And when, you know, "function" is defined, it's really not about the operation of the thing.

It's about what it can achieve, what it's being used for.

So I see Congress as putting function in this.

The function of this trigger is to cause this kind of damage, 800 rounds a second or whatever.

And -- and  --and so the classification of weapons that we're trying to identify with this statute are those that function in that same way.

Brian H. Fletcher: So, Justice Jackson, I agree with most of that, but I want to be careful because our  -- our view is not that because Congress banned machineguns because they're dangerous, anything that's dangerous or that shoots fast is a machinegun.

Our -- we draw the evident purpose of Congress that we think my friend's interpretation would frustrate from the text that Congress enacted.

Ketanji Brown Jackson: Right.

And so how about anything in which the trigger functions in the same way, and by "function," I don't know that that necessarily means it has to move in the same way.

It has to operate in the same way.

It can function in the same way insofar as it automatically allows for 800 rounds to be released.

Brian H. Fletcher: So exactly.

We think the function of the trigger is what lets the shooter start the firing sequence.

And we think  all of the parts of the statutory definition are aimed at we're worried about guns that let you  shoot many shots without repeated manual actions, right.

So it's  --it's single function of the trigger.

Does the shooter have to do one thing or many things?

Ketanji Brown Jackson: Thank you.

Neil Gorsuch: Mr. Fletcher, on  -- on that score, can we just step back a minute? I can certainly understand why these items should be made illegal, but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machineguns.

And then you -- you adopted an interpretive rule, not even a legislative rule, saying otherwise that would render between a quarter of a million and a half million people federal felons and not even through an APA process they could challenge subject to 10 years in federal prison, and the only way they can challenge it is if they're prosecuted, and they may well wind up dispossessed of guns, all guns  in the future, as well as a lot of other civil rights, including the right to vote.

And I -- I guess I just want your reaction to  --to that.

And I believe there are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated.

Thoughts?

Brian H. Fletcher: There's a lot packed in there, so as you might expect, I have a lot of thoughts.

I think the main one is this Court often concludes that the government has interpreted a statute the wrong way and doesn't hesitate to correct the government's mistakes. I think the government should do the same thing.

After the Las Vegas shooting, the deadliest shooting in our nation's history, I think it would have been irresponsible for the ATF not to take another closer look at this prior interpretation, which was reflected in a handful of classification letters, and to look  at the problem more carefully.

And having done that, I think it would have been irresponsible if the ATF concluded, as it did, that these devices are prohibited under the best reading of the statute for the ATF not to fix its errors.

Neil Gorsuch: Then why not do a legislative rule properly and in which -- I -- I know you did notice-and-comment, but it was an interpretive rule, and an interpretive rule you can more or less just issue and you don't even have to put it in the Federal Register.

I mean, maybe you do in some circumstances, but not all.

Brian H. Fletcher: Well, Justice --

Neil Gorsuch: And  --and -- and you're -- you're -- you're creating a class of, again, between a quarter of a million and a half million people who have, in reliance on past administrations, Republican and Democrat, who said that this does not qualify in a very old statute, taken actions.

And an interpretive rule you can't even challenge in an APA posture.

Brian H. Fletcher: Well, we are in an APA posture.

They are challenging an interpretive rule, and -- and --

Neil Gorsuch: Well, I understand that, but in your reply brief, you say, oh, don't touch that because that's not before us.

That's not part of the QP.

And in an interpretive rule, you don't get an APA challenge.

You get  -- you -- you get a criminal prosecutio n against you is what you get.

Brian H. Fletcher: So I -- I guess I disagree with that on a number of levels. First, I would think it would be better for those who are concerned about administrative power that we acknowledge this is an interpretive rule.

The ATF doesn't have the power to make something a crime that wasn't a crime before. It's not a crime to violate the rule.

It has been and always will be a crime to violate the statute.

The ATF is saying we got that wrong before and we're fixing it now.

And you're right, it would be horribly unfair to prosecute people who possessed these devices in reliance on the agency's past assurance, but that is taken care of through doctrines like entrapment by estoppel, which  ensure that no one has been and no one will be prosecuted for possessing these guns during -- or these devices during a time when ATF said it was legal.

But that's not a reason to shackle the ATF and  certainly not a reason to shackle this Court to adopt something other than the best reading of the words Congress wrote.

And it's true, Congress wrote those words 90 years ago, but we think it used capacious language like function of a trigger instead of pull of a trigger and then, in 1968, added parts that can be used to convert something into a machinegun precisely because it understood that Americans are  -- have a lot of ingenuity and a lot of creativity.

There are a lot of ways to build something that is a machinegun, and I don't think you should hesitate from applying the broad language that Congress wrote, consistent with the meaning that it has always had.

Brett M. Kavanaugh: What's the  --

Sonia Sotomayor: Could I  --thank you.

Are you representing on behalf of the government that you're not going to prosecute anyone prior to 2017?  Anyone who wasn't a felon or  -- or disqualified for some other reason?

Brian H. Fletcher: I am.

ATF made very clear in enacting this rule that anyone who turned in their bump stock or destroyed it  before March of 2018 would not face prosecution.

As a practical matter also, the statute of limitations for this offense is five years, so in a month, the statute of limitations would be gone.

We have not prosecuted those people.

We won't do it.

And if we try to do it, I think they would have a good defense based on entrapment by estoppel.

Sonia Sotomayor: Second, the back-and-forth here leads me to believe that at best there might be some ambiguity.

Now the question is what's the best reading.

And we have a whole slew of doctrines that talk about that with respect to that we shouldn't render statutes ineffective by an interpretation.

That's not the best reading, correct?

Brian H. Fletcher: Correct, exactly.

Sonia Sotomayor: And I think we've said that as far back as 1824.

Brian H. Fletcher: In The Emily, exactly.

Sonia Sotomayor: In The Emily case. And so I think your position is, if anyone's in doubt about this interpretation, that not including something that basically you hold in your hand and you let the recoil move it back  and forth, if that's not automatic, then it doesn't make any sense that this is not a machinegun, correct?

Brian H. Fletcher: That's part of our argument, absolutely.

And it's not just this device.

I mean, we cite a number of the examples, and  -- and there are many more, of things that people have done to try to get around the ban on machineguns, and accepting some of the interpretations that my friend is offering today would legalize not just bump stocks but those devices as well.

Sonia Sotomayor: One final question.

Justice Barrett said something about she hoped Mr. Mitchell would explain something about why there was a difference in the functioning between the belt and the gun.

Could you go through that again so that -- I think I understand it, but  --

Brian H. Fletcher: Of course.

So, as I acknowledge and as the ATF explained in the rule, it is possible to do bump firing, meaning that the rifle moves back and forth and bumps against your stationary finger.

An expert can  do that without any assistive device at all. And you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place.

We don't think those things function automatically because the definition of "automatically," I think everybody agrees, is by means of a self-regulating mechanism.

That's what a bump stock is.

It's a device that is purpose-built to harness the recoil energy of the gun to automate the process of releasing the trigger to move the rifle back just the right distance in just the right direction so that the trigger resets and then to ensure that the rifle moves forward again, again, just the right distance, just the right direction. We think the cycle that's created by that means is by means of a self-regulating process.

It's possible to do the same thing  with a lot of manual work and manual control and expertise, but that's not unusual to say that something can be done automatically by a device  if you eliminate a lot of manual movements that someone like an expert could take to do the same thing.

Brett M. Kavanaugh: Can I ask you about mens rea, to pick up on Justice Gorsuch's questions?  For prosecuting someone now, what mens rea showing would the government have to make to convict someone?

Brian H. Fletcher: So I think the relevant case is Staples, and I think what the Court held in Staples is that you have to be aware of the facts that render your weapon a machinegun.

Brett M. Kavanaugh: So, even if you are not aware of the legal prohibition, you can be convicted?

Brian H. Fletcher: That's right, but that's true of all machineguns, I mean, all different sorts of devices.

I think the distinct problem here is the one that's created by the fact that the agency was previously saying that these were not machineguns.

We acknowledge that those people who, in reliance on that  --

Brett M. Kavanaugh: And that -- that's going to ensnare a lot of people who are not aware of the legal prohibition.

Brian H. Fletcher: So I guess I don't think so, Justice Kavanaugh.

I think the ATF  -- one of the reasons, to Justice Gorsuch's point, this is an interpretive rule that went through notice -and -comment  --the reason was in part because the agency knew that it had previously been saying something different.

It wanted to maximize public notice.

This is something that's gotten a lot of coverage.

Brett M. Kavanaugh: Why not  --why not require the government to also prove that the person knew that what they were doing was wrongful, was illegal?

Brian H. Fletcher: Well, I think that's not the understanding that this Court adopted in Staples.

If the Court wanted to revisit that in another case, a criminal case, you could.

We haven't briefed that question here. But I think, to the extent that you're concerned about that, it's -- it's not a concern unique to bump stocks.

We mention all sorts of  other devices, the forced reset trigger that we mentioned.

The problem of people coming up with  devices that they want -- that they think get close to the line but don't go over but that, in fact, go over the line and turn them into machineguns isn't new and could come up  anywhere.

The problem here, we acknowledge, is ATF used to say something different about these, but we think that's taken care of by the rulemaking and the doctrine of entrapment by estoppel.

Neil Gorsuch: Because people will sit down and read the Federal Register?

Brian H. Fletcher: No.

I think because I think people who have these devices  --

Neil Gorsuch: That's what they do in their evening for fun.

Gun owners across the country crack it open next to the fire and the dog.

(Laughter.)

Brian H. Fletcher: I take that point.

I think, Justice Gorsuch, the fact that this rulemaking happened has not gone  unnoticed in the community of people who are interested in firearms.

Many people have availed themselves of the right to challenge our interpretation. We're defending it in court.

The Supreme Court  is hearing it.

I agree not everyone is going to find out about those things, but we've done everything the government could possibly  do to make people aware.

Neil Gorsuch: Let me ask you about the function of the trigger.

You liken it to a stroke of a key or  -- or -- or -- or a throw of the dice or a swing of the bat.

Those are all things people do.

Brian H. Fletcher: Mm-hmm.

Neil Gorsuch: A function of the trigger, do people function triggers?  I thought, you know, in -- in --in, you know, maybe somewhere in fifth  --fifth grade grammar, I learned that was an intransitive verb.

Brian H. Fletcher: Yeah.

Neil Gorsuch: And people don't function things.

They may pull things, they may throw things, but they don't function things. And, again, it's a very old statute, and it was designed for an obvious problem in the 1930s and Al Capone, and people were -- with a single  function of the trigger, that is, the thing itself, was moved once, and that's what they wrote.

And maybe they should have written something better.

One might hope they might write something better in the future.

But  that's the language we're stuck with.

Help me.

Brian H. Fletcher: That is the language we're stuck with, but I don't think it's as narrow as you suggest for a couple of reasons. I agree it's awkward to talk about a person functioning a trigger, but there's an easy explanation.

The reason Congress used that word, not "pull," is because Congress knew that there were lots of different ways to activate a trigger and wanted to cover all of them.

And I think the reason you know that it's referring to what the shooter does -- there's really two.

One is that's the way it's been understood ever since.

The interpretation I'm giving you is the same one Karl Frederick, the president of the NRA, and many other courts, executive officials, Congressmen gave at the same time.

They used "pull" and "function" interchangeably.

And, second, I think, even if you've said we're going to focus just on the trigger, the function of an object isn't just some action by the object.

It's the mode of action by which  it fulfills its purpose.

And the purpose of a trigger is to accept some input from the user.

And the way you know that is how everyone reacts when someone attaches it to some contraption like the AutoGlove, which is a glove that you put on and you push a button and it has a little piston that pulls the trigger really fast, or you attach a fishing reel, like the one the Fifth Circuit confronted  in Camp, where you flip a switch and it spins and turns the trigger over and over again.

On my friend's reading, the function of the trigger with those devices is exactly the same because the curved metal lever is moving back and it's releasing the hammer every single time.

But everyone, my friend included, recognizes that that's not the function of the trigger in those devices. The function of the trigger is the user's flip of the switch or push of the button because that's the thing that allows an act by the user to initiate a firing sequence.

Amy Coney Barrett: Mr. Fletcher, I -- I take it that the ATF defined the curved lever that you pull back as the trigger.

Could it  have defined the bump stock itself as the trigger?

Brian H. Fletcher: So I -- I'm not sure that it could have defined the bump stock itself as the trigger.

I think  -- we get into this a little bit in the reply in response  -- or a version  -- a different argument maybe than the one that you're thinking of but I think related, in response to a move that's made in the red brief, where we hypothesize that if you had a machinegun that required you to pull the trigger and also hold down a button, it would still fire automatically, and we all understand that, even though you have to do two things rather than one.

And what my friend said in the red brief is, well, in that case, maybe the button is part of the trigger too because you have to push the button to keep firing.

And what we say in the reply and what I think is true is that if you were going to approach the statute that way, which isn't the way the ATF has, I think you'd still land in the same place because then you'd say it's both the curved metal lever and it's the part on the front of the rifle that the user  pushes forward in order to initiate and maintain the firing sequence.

John G. Roberts, Jr.: Thank you, counsel.

Justice Thomas, anything further? Justice Alito?

Samuel A. Alito, Jr.: What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the Fifth Circuit decision?  Can they be prosecuted?

Brian H. Fletcher: I think probably yes, unless they had gotten some judicial relief from the rule.

The rule has not been enjoined.

It hasn't been vacated, writ large, so I think the -- the government has made clear that this is what we think the statute means.

I'll say in practice that  --

Samuel A. Alito, Jr.: Isn't that disturbing? People in the Fifth Circuit who have been possessing firearms since the beginning of 2023, let's say, they -- you know, they are aware of the Fifth Circuit's decision that they can be criminally prosecuted for doing something that the court of appeals that governs their territory has said is not illegal?

Brian H. Fletcher: Well, let me give a practical answer and then a doctrinal answer.

I think, practically, I'm not aware of a lot of these prosecutions being brought because we recognize that there is some legal uncertainty.

But I think, doctrinally, that could happen all the time, Justice Alito.

Circuits disagree about what a criminal law means, and someone might, in reliance on their circuit precedent, do something that they think is lawful under circuit precedent that other circuits disagree with, that the government disagrees with, and that this Court ultimately holds is covered by the statute.

Samuel A. Alito, Jr.: When we speak of the function of an inanimate object, don't we normally look at what that inanimate abject -- object does?  So why isn't the function of a trigger to release the hammer -- let's look at the  -- the -- the M16, the AR-15, the function of  -- why isn't the function of the trigger to release the hammer from the sear so that the hammer can swing forward and strike?  Isn't that the most straightforward interpretation  of this?

Brian H. Fletcher: I don't think so, and I think, even if you thought that was true, just looking at the text alone, the three indications that we've talked about, t he contemporaneous usage by the president of the NRA and others, the application to other kinds of triggers, which everybody agrees are covered but which don't function by moving the hammer, and then also just evasion.

I mean, I talked about some of them, but one of the devices that the Fifth Circuit has held is permissible  --or, I'm sorry, a district court in the Fifth Circuit has held is permissible and the Fifth Circuit has declined to stay is something called a forced reset trigger, and with a forced reset trigger, the ATF tested it, zip -tied the trigger back, and the gun shot multiple bullets.

What the district court said is that under my friend's interpretation, its function  --there are multiple functions of the trigger because the trigger is wiggling back and forth imperceptibly and releasing the hammer separately each time, and so it's not a machinegun.

And I think it's just not reasonable to read the statute that opens it up to that sort of evasion, and we're seeing concrete evidence of that evasion in the Fifth Circuit.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Just to be clear, when you're citing what Congress people said or what the NRA president said or what we said in some of our decisions because we've used "pull of the trigger" in describing a machinegun's function, correct?

Brian H. Fletcher: Exactly.

Sonia Sotomayor: You're not using legislative history in the traditional sense. You are pointing to common usage?

Brian H. Fletcher: Exactly right, exactly right.

We're not speculating.

We're not saying that the bump stocks are machineguns because the president of the NRA wanted them to be.

We're using that as evidence --

Sonia Sotomayor: Well, that's what the Senate intended.

You're saying it's a term of art.

Brian H. Fletcher: Exactly.

If he  --if he had published this in an essay or in The New York Times, we would be pointing to it as evidence of contemporary meaning.

We certainly don't think it should be a blessed reading.

Sonia Sotomayor: Well, you're pointing  --you're pointing to Supreme Court decisions that did it.

Brian H. Fletcher: Exactly, as this Court does too.

It looks at literature.

It looks at all sorts of sources to understand what speakers of English understand the words to mean when Congress used them.

And we think this and many other things are powerful indications that we're right about that.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Fletcher, you've talked a lot about the mechanics of these various devices.

Could you give a sense of the different effects of these various devices?  So you take on two poles a semiautomatic weapon, let's say, and a  conventional machinegun on the -- on the other. How many bullets and how much time?  And then  one of these bump stock weapons, where does that fall in the spectrum between those?

Brian H. Fletcher: Sure.

So the rate of a semiautomatic weapon is not a fixed number because it depends both on the weapon and very much on the skill of the shooter.

I think the Giffords amicus brief says the theoretical maximum for a very skilled competition shooter with a specialized weapon is something like 180 bullets a minute.

In practice, it's much, much slower than that for the vast majority of people who would use one of these things.

A fully automatic weapon  --

Elena Kagan: How -- how much slower?

Brian H. Fletcher: I think, you know, it  -- it depends.

I think more on the order of, you know, 60, something like that.

I don't  --I don't want to represent that that's exa ct again because there's a lot of variation, but the -- the point is that's the theoretical max.

In practice, it's significant ly slower than that. A traditional machinegun like the M16 or the M14, things that are issued to members of the American military, shoot in the range of 700 to 950 bullets a minute.

There are obviously bigger things like the things mounted on helicopters that shoot  much, much faster than that, but I think, for these purposes, that 700 to 900 is about the right benchmark.

The Akins Accelerator, the original bump stock, shot at 650 rounds a minute, and the devices at issue here are represented to shoot between 400 and 800 rounds a minute.

So right in that range with the M16, the M14, and they do it in the way -- again, I  -- I th ink rates of fire are important, but we acknowledge this is not a rate -of -fire statute. It's a function statute.

But the function was, are you able to fire multiple shots without multiple manual movements?  And I think the rate of fire is powerful evidence that there are not multiple manual movements going on here.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch?  Justice Kavanaugh?

Brett M. Kavanaugh: You've referred a lot to the language in 1934 and around that time, but, of course, bump stocks didn't exist around that time.

What are we to make of that?

Brian H. Fletcher: So I -- I think you still apply the language and you have to do what you have to do a lot, which is apply language that Congress wrote and apply it to something that didn't exist at the time.

You know, none of these workarounds, the fishing reel, the AutoGlove, the forced reset trigger, all of them are new problems.

But -- but I think what you can draw is that Congress wrote a statute, chose the word "function" deliberately because it didn't want to just work  --focus on triggers that pull, and then, in 1968, it added "parts that convert a machine"  --a -- "a normal gun into a machinegun" because it recognized that people try to do things to semiautomatic weapons in order to give them these same characteristics of multiple rounds with a single manual  action.

Brett M. Kavanaugh: And then what's your explanation, maybe common -sense explanation or some other explanation, for why, when this does become an issue, the Bush Administration, the Obama Administration, Senator Feinstein, all say no?

Brian H. Fletcher: Yeah.

Brett M. Kavanaugh: Bump stocks are  -- are not  covered because, if it were so, I don't want to use the word "clear," but if so, if your  --if your position were correct, oh, just this is a new thing, obviously, covered by this old statutory language, you would expect the Bush Administration and the Obama Administration and Senator Feinstein to say, of course, it's covered by, and -- and they didn't, and that's reason for pause.

It doesn't -- it's not dispositive, but it's reason for pause.

And I just  --what  --what's your explanation for that, if you have one?

Brian H. Fletcher: So I agree with you. It's  --it's  --it's worth looking at.

It's worth asking.

I think that's why it's so  important to put it in context.

And if I could, so when the ATF first looks at these, it's the Akins Accelerator in  2002.

That's the bump stock with a spring in the back where you don't even have to push forward.

And initially ATF tests it, the prototype breaks, but the ATF writes a  classification letter, which is something relatively informal, just goes to the manufacturer, doesn't contain a lot of legal reasoning, says this isn't a machinegun because it doesn't have multiple functions of the trigger.

Very quickly thereafter, ATF corrects that error and in 2006 says the Akins Accelerator is a machinegun because it does function by  -- it does shoot multiple shots by a single function of the trigger.

So that part we've been consistent on. The director of the ATF issued a ruling, 2006-2, that was consistent on that, and the agency has held that position ever since, and that's mostly what we've talked about today.

It's true that in a series of additional -- other informal classification  letters issued between 2007 and 2017, the ATF said that non-mechanical bump stocks, those like the ones at issue here without a spring where you have to push forward, weren't machineguns because they didn't shoot automatically.

But I -- I think it's important to recognize those are informal, they don't include  a lot of legal analysis, and I think maybe most importantly, no one defends the ATF's interpretation from those letters.

What the ATF said there is this doesn't have springs or mechanical parts, so it doesn't make guns -- the gun function automatically.

I think even my friend doesn't defend that interpretation.

Everybody recognizes that there are things like Glock switches that we discuss in our reply brief that you can add to a machinegun -- a semiautomatic weapon that make it a machinegun, and I think the fact that no one is defending the ATF's prior interpretation is a good indication that when Attorney General Sessions and Attorney General Barr revisited this and we've continued to defend it since, they did a much more careful examination and got it right.

And then Senator Feinstein, you know, I  -- I take your point.

I guess, with all respect to Senator Feinstein, I would say that the comments from a legislator who's trying to get a piece of legislation passed and is trying to demonstrate the need for that legislation by disagreeing with the administration about the scope of current law are not a particularly probative source of the meaning of the words that Congress enacted in 1934.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: No.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Can I just be clear on this function point?  Because they say, I think, that a single function of the trigger in -- as it appears in this statute is directing consideration of whether the trigger is moving only once.

And I think you're saying that, no, when it says the function of the trigger, it's not how the trigger operates, it's -- the function of the trigger is what it achieves, and the function that I think you're saying is that if by single operation, meaning single movement  of the person, you can achieve firing multiple shots without multiple manual movements, that's  what you said, that covers the function of the trigger.

Is that what you're saying?

Brian H. Fletcher: Exactly.

And I think the thing that makes this clearest is the boxes hypothetical on page 30 of our brief where we say imagine somebody builds a black box with a button on the top and the shooter pushes  the button once and bullets come out of the front at a very high rate.

On our view, that's a machinegun.

But, on my friend's view, if the inventor sets it up so that after the shooter pushes and releases the button the button keeps moving up and down in the same way on its own, I think he's stuck saying that that's not a machinegun because the trigger is functioning each time a shot is fired.

We don't think that's a plausible construction of the statute.

Ketanji Brown Jackson: So we'll ask him about that.

And -- and I guess yours is consistent or it -- it accounts for automatically more than one shot being in this definition?

Brian H. Fletcher: Exactly.

Ketanji Brown Jackson: Okay.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Mr. Mitchell.

Jonathan F. Mitchell: Mr. Chief Justice, and may it please the Court:  The statutory definition of machinegun extends only to weapons that fire more than one shot automatically by a single function of the trigger.

Mr. Cargill's non- mechanical bump stocks fall outside the statutory definition for two separate and independent reasons.

First, a bump stock equipped rifle can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired.

The trigger is the device that initiates the firing of the weapon, and the function of the trigger is what that trigge ring device must do to cause the weapon to fire.

The phrase "function of the trigger" can refer only to the trigger's function.

It  has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function.

The statute is concerned only with what the trigger does and whether a single function of that trigger produces more than one shot.

Second, a bump stock equipped rifle does not and cannot fire more than one shot automatically by a  single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing.

Everything about the bump firing process is manual.

And there is no automating device, such as a spring or a motor, in any of Mr. Cargill's non- mechanical bump stocks. The process depends entirely on human effort and exertion as the shooter must continually and repeatedly thrust the forestock of the rifle forward with his non -shooting hand while simultaneously maintaining backward  pressure on the weapon with his shooting ha nd. None of these acts are automated.

And the Solicitor General has yet to identify any  component of Mr. Cargill's devices that automatically performs any task that is necessary for bump firing.

The statute is  unambiguous as applied to Mr. Cargill's non- mechanical bump stocks, and we ask the Court to affirm on that ground.

Clarence Thomas: Behind the government's argument is a sense that the  -- this statute was initially enacted because of what some of the individuals did during Prohibition.

Jonathan F. Mitchell: Mm- hmm.

Clarence Thomas: And there was significant damage from machineguns, carnage, people dying, et cetera.

And behind this is a notion that the bump stock does the exact same thing.

So, with that background, why shouldn't we look at a broader definition of "function," one suggested by the -- the  government, as opposed to just the narrow function that you suggest?

Jonathan F. Mitchell: The problem with the government's argument, Justice Thomas, is that the phrase "single function of the trigger" can only be construed grammatically to focus on the trigger's function and not on what the shooter  does to the trigger.

And that's so for many reasons.

For -- for one thing, there cannot be a subject of "function" because a shooter does not function a trigger.

Only a trigger can have a function and not a shooter.

Now the Solicitor General is trying to replace the word "function" in the statute with the word "pull."  And if the statute had actually said a single pull of the trigger, that phrase would clearly refer to an act taken by the shooter because only a shooter can pull the trigger.

The trigger certainly can't pull itself.

So, if the Court is going to interpret the statut e based on what it says rather than based on the purposes or perhaps the overarching goals of what the 1934 legislature might have been, there's no way it could accept the government's construction of the statute because  it is changing the enacted words.

Ketanji Brown Jackson: Can I give you a way possibly?

Jonathan F. Mitchell: Please.

Ketanji Brown Jackson: All right.

So the statute says "function," as we've all identified.

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: And as far as I can tell, the sort of common usage of the word "function" is not its operational design.

It's not the mechanics of the thing.

It is what it achieves, what it's being used for.

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: So I found definitions.  "Function" is defined as the action for which a person or thing is specifically fitted or used; the acts or operations expected of the person or thing.

So, if we take that definition  --

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: -- it seems to me that, through its use of the word "function,"  Congress was trying to capture a class of weapons in which a trigger is used once to achieve a certain result, which says, in the statute, automatic firing many times.

And so weapons with bump stocks have triggers that function in the same way.

They -- through a single, right, pull of the trigger or touch of the trigger, you achieve the  same result of automatic fire  --

Jonathan F. Mitchell: No.

Ketanji Brown Jackson: -- of the weapon. So why -- why is that inconsistent with grammar or the  -- the -- the way the statute reads?

Jonathan F. Mitchell: Well, the premise of Your Honor's question is not true.

A single discharge of the trigger produces only one shot. It doesn't produce a round of automatic fire. The only way you get to repeated shots with a bump stock equipped rifle is for the shooter himself to continually undertake manual action by thrusting the forestock of the rifle forward with his non- shooting hand.

Ketanji Brown Jackson: But that's not the trigger.

He's only touched the  --he's holding the trigger or touched the trigger once, right?

Jonathan F. Mitchell: No.

He touches the trigger every single time.

He has to bump the trigger.

Ketanji Brown Jackson: Well, I'm sorry, the machine is -- but the machine is moving --

Jonathan F. Mitchell: The machine  --

Ketanji Brown Jackson: -- to make his --

Jonathan F. Mitchell: The machine is moving --

Ketanji Brown Jackson: Okay.

Jonathan F. Mitchell: -- but  the trigger has to be bumped.

Ketanji Brown Jackson: So then let me ask you a question.

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: The  --the other question is  -- I understood this to be a classification statute in the sense that Congress is trying to identify and classify certain weapons.

So, if you're right  --

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: -- I want to understand why that matters.

Why does it matter for the purpose of this statute that we have backwards pressure in the ordinary case of a machinegun and forward pressure here?  You're  saying there's a distinction being drawn.

Bump stocks don't fit into this category because of this distinction, and I guess I don't understand why Congress would have prohibited one and not the other.

Why -- why does it matter?

Jonathan F. Mitchell: Well, it matters because the statute turns on whether the bump stock equipped rifle will fire more than one shot automatically by a single function --

Ketanji Brown Jackson: Right.

But they're -- the -- the -- the  --

Jonathan F. Mitchell: -- of the trigger.

So to answer that --

Ketanji Brown Jackson: -- the statute is in con  --in context.

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: The statute is classifying certain weapons for prohibition.

Jonathan F. Mitchell: Right.

Ketanji Brown Jackson: So, for it to make sense, we have to understand why this category of weapons are ones that Congress wants to prohibit.

And you're suggesting that Congress -- 55 is prohibiting through this classification weapons in which we hold it backwards and automatic fire happens, but we push it forward and automatic fire happens, Congress says no, that's not in the  --

Jonathan F. Mitchell: There's no automatic fire.

I'm sorry.

Justice Jackson  --

Ketanji Brown Jackson: Okay.

Jonathan F. Mitchell: -- there is no automatic fire with a --

Ketanji Brown Jackson: Sorry.

Eight hundred  -- 800 bullets -- the conversation with Justice Kagan suggested that, through a bump stock, you can achieve the same kinds of result in terms of the amounts of bullets that are being ejected.

Jonathan F. Mitchell: That is true.

Ketanji Brown Jackson: Is that correct? Okay.

Jonathan F. Mitchell: It has a very high rate of fire, but it's not automatically fired.

Ketanji Brown Jackson: Right, but what I'm

Jonathan F. Mitchell: This is --

Ketanji Brown Jackson: -- suggesting is that the category of prohibition is about the high rate of fire as opposed to, you know, the movement of the trigger.

And if you're right  that it's about the movement of the trigger, I'm just asking why, why would -- why would Congress want to prohibit certain things based on whether the trigger is moving as opposed to certain things that can achieve this, you know, lethal kind of spray of bullets?

Jonathan F. Mitchell: Because the statute was written in 1934, about a hundred years before we had bump stocks.

So Congress drafted the statute at that time to capture the type of weaponry it wanted to prohibit in 1934, so --

Elena Kagan: Your interpretation, Mr. Mitchell, though  --you've said this several times in your brief  -- captures a fair number of weapons that nobody had on their radar screen in 1934, so let me ask you about that and where the line is.

Jonathan F. Mitchell: Sure.

Elena Kagan: If a gun fires multiple shots at the push of a button or the flip of a switch and just keeps firing -- -

Jonathan F. Mitchell: Yes.

Clearly, that's a machinegun.

Elena Kagan: -- that's a machinegun?

Jonathan F. Mitchell: Yes.

That's United States against Camp essentially.

Elena Kagan: Okay.

And if a  --if -- if a gun does the same thing, except now it's the push of two buttons?

Jonathan F. Mitchell: So one button that fires and then the other button that's necessary?

Elena Kagan: Yes.

Jonathan F. Mitchell: Both buttons necessary?

Elena Kagan: Yes.

Jonathan F. Mitchell: And neither are by themselves sufficient?

Elena Kagan: Yeah.

I thought you say also, on page  45 of your brief, that a push- operated machinegun that requires the shooter to push and hold two buttons, that that would also qualify.

Jonathan F. Mitchell: Right, because the two buttons together are acting as the trigger in that scenario.

Elena Kagan: Okay.

Jonathan F. Mitchell: The trigger is the device that initiates the firing of the weapon.

Elena Kagan: Okay.

Jonathan F. Mitchell: So, if you need to push two buttons and not just one, then both, the two buttons combined, are the trigger.

Elena Kagan: Okay.

So now, instead of doing two buttons, suppose you had one button and with the other hand you held the trigger.

Jonathan F. Mitchell: One button that you're pushing and then with the other hand you're --

Elena Kagan: Yeah.

Instead of two buttons  --

Jonathan F. Mitchell: Right.

Elena Kagan: -- it's one button and you held the trigger.

Jonathan F. Mitchell: And you need to do both to fire?  You can't just do one?

Elena Kagan: Same as you just had to do with two buttons.

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: And you conceded the two buttons is a machinegun.

So now I'm saying, instead of pushing two buttons, you push one button and you hold the trigger.

Jonathan F. Mitchell: It's going to depend on what  --how we define "trigger."  And as -- the answer to that will not always be clear.

The question is, can you extend the holding of United States against Camp to this particular situation?  The trigger  --

Elena Kagan: I mean, I have to say  --

Jonathan F. Mitchell: Yeah.

Elena Kagan: -- I think you don't quite know what the answer to that is  --if you have an answer, let me know  --because the difference between pushing two buttons --

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: -- for me and pushing one button and holding the trigger is not self- evident.

Jonathan F. Mitchell: To pushing a button and holding the trigger and you need to do both --

Elena Kagan: Same.

Jonathan F. Mitchell: -- and both --

Elena Kagan: Boy, I thought I was being pretty clear here.

Jonathan F. Mitchell: Yeah.

Elena Kagan: You push two buttons. You say it's a machinegun.

Now you don't push two buttons.

You have to push one button and hold the trigger.

Jonathan F. Mitchell: That shouldn't make a difference if they're both going to be considered -- they either have to both be machineguns or neither.

I don't think you can't  draw a distinction between --

Elena Kagan: Correct.

Jonathan F. Mitchell: I agree with that much.

Elena Kagan: And you said the first is a machinegun, so the second has to be a machinegun.

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: Okay.

So now I  guess I want to know, what's the difference between pushing a button and holding the trigger and pushing the barrel and holding the trigger? You've just described a bump stock.

Jonathan F. Mitchell: No.

No, because you don't need to push the barrel forward to fire the weapon.

You can fire the weapon just by clicking the trigger every single time, like a normal semiautomatic weapon fires.

So, no.

Elena Kagan: But -- but what the bump stock does --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: Oh.

Oh, you're saying you don't have to put pressure?

Jonathan F. Mitchell: Well, it's neither necessary nor sufficient to fire the weapon.

The trigger is the device --

Elena Kagan: All right.

Jonathan F. Mitchell: -- that initiates the firing of the weapon.

So --

Elena Kagan: Here's what I'm trying to say.

You've -- and I appreciate --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: -- your, you know, going down this road of hypotheticals with me.

But, if -- if pushing one button and holding a trigger is a machinegun, then --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: -- a device that works by pushing the barrel, the front of the gun, essentially  -- I don't know about these things -- and holding the trigger seems again, to me, to essentially do the same thing.

Jonathan F. Mitchell: It  --

Elena Kagan: And that is how everybody uses these devices.

Like, I mean, maybe you could use the device differently, but  the entire point of this device is that you exert forward pressure and you have your finger on the trigger, and then a torrent of bullets shoots out.

So I don't understand why it's any different --

Jonathan F. Mitchell: It is different.

Elena Kagan: -- from pushing a button and holding the trigger --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: -- pushing the barrel and holding the trigger.

Jonathan F. Mitchell: The difference is you don't need to push the barrel to fire the weapon.

In the other hypotheticals that Your Honor was describing, you need to push those buttons to make the weapon fire.

It is not necessary --

Elena Kagan: So the fact that there is a conceivable possibility of using these bump stock devices in a way that does not take advantage of what these bump stock devices do and are able to do  --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: -- the fact that there is that conceivable possibility is what you are resting your entire argument on?

Jonathan F. Mitchell: No.

Our argument depends on what's the trigger.

The trigger is the device that initiates the firing of the weapon.

A bump stock does not change the trigger in any way.

It does not alter the  nature of the trigger.

The other hypothetical devices that Your Honor is describing are changing the triggering device either by requiring pushing two buttons rather than just one  -- nothing in the bump stock changes the trigger.

The trigger is still in this situation the curved metal lever, and the Solicitor General has never contested that point, neither has DOJ, at any point in this litigation.

Neil Gorsuch: Mr. Mitchell, I --

Samuel A. Alito, Jr.: And, Mr. Mitchell, this con  --this conversation is totally confusing me because I -- I thought that your argument depended on what the trigger  --that the function of the trigger was what the trigger does mechanically inside the weapon, and, therefore, whether you have one trigger or two triggers or three triggers or 10 buttons, it doesn't matter.

It matter -- what matters is what the trigger or the triggers do inside the gun.

A -- an M6 -- back in the day when it was possible to fire the standard military issue rifle, M16, from the 1970s on automatic, my understanding is that the military doesn't even  -- you can't even do that anymore.

All you can fire at most is a burst of three shots.

But there are two buttons on -- on the -- on the old- time M16.

You have to flip the -- well, there are three.

You have to  --you have to flip it over from semiautomatic to automatic. That's one button.

And then the other button is the pulling of the trigger.

But do I misunderstand your argument?

Jonathan F. Mitchell: No, you're not misunderstanding at all.

The function of the trigger is what the trigger does to cause the weapon to fire.

That's what "function of the trigger" means.

But, to determine that, we need to first determine what exactly the trigger is -- -- 65 before we can consider what is the function of the trigger.

And there will be certain types of devices like this motorized trigger device in United States against Camp where the trigger  actually is changed because you're no longer pulling the curved metal lever to set off the weapon; instead, you're flipping some switch that starts the motor --

Samuel A. Alito, Jr.: Can you think of any

Sonia Sotomayor: Now I'm completely lost.

The trigger is not doing anything.

It's the person doing something.

And it's the person choosing on an M16 whether they're going to keep the switch on semiautomatic or put the switch on automatic and turn the M16 into a machinegun.

And on a machinegun, it's not the trigger that does this.

It's the pressure that the shooter is using to hold the trigger down that permits it to keep going.

Jonathan F. Mitchell: That's what causes the trigger to function.

Sonia Sotomayor: Well, but the --

Jonathan F. Mitchell: The -- the -- the test

Sonia Sotomayor: That's what the government is saying, which is you're not looking at what the  -- what the trigger is doing.

You're looking at what the shooter is doing.

And is he using a force, keeping the gun down  --keeping the trigger down or holding the bump stock and letting it shoot back and forth in an automatic recoil.

Those are not things that changes the automatic nature of the firing.

Jonathan F. Mitchell: It still has nothing to do with what the shooter does.

The question is what does the trigger do when it functions.

And if the trigger allows more than one shot to fire per function of the trigger, what is the single function of the trigger?  And on a semi --

Sonia Sotomayor: But the trigger's -- the trigger you're saying can be a button.

So why can't it be the bump stock that's forcing this thing automatically in a recoil motion to go back and forth?

Jonathan F. Mitchell: Because the bump stock doesn't fire the weapon.

The bump stock is just a case in which the weapon slides back and forth.

That doesn't do anything to fire the weapon.

The only way --

Amy Coney Barrett: They have defined the  bump stock as the trigger?

Jonathan F. Mitchell: No one defines the bump stock as the trigger in this case.

Amy Coney Barrett: Could they have?

Jonathan F. Mitchell: No, they could not because the bump stock is neither necessary nor sufficient for the firing of the weapon.

It's  the curved metal lever on the semiautomatic rifle that causes the weapon to fire.

That  --

Neil Gorsuch: Mr.  --

Jonathan F. Mitchell: Yes?

Neil Gorsuch: Sorry.

Mr. Mitchell, it seems to me the spirit of some of the questions you're getting are in the nature of the anticircumvention principle  --

Jonathan F. Mitchell: Mm- hmm.

Neil Gorsuch: -- that, okay, maybe in 1934 "function of the trigger" meant the firing, the  -- the --the essential thing that causes the weapon to fire.

But the high rate of fire that's achievable through bump stocks is effectively the equivalent, and we should take cognizance of that.

Your thoughts?

Jonathan F. Mitchell: It's just not what the statute says.

It has nothing to do with the rate of fire.

Elena Kagan: But -- but the statute doesn't say a lot of things that you've agreed are prohibited under the statute.

The statute doesn't, you know, think about buttons, and the statute doesn't think about switches.

And I have to think that if I gave you a different hypo that said it was voice- activated that you would have to say yes, that's a machinegun too.

And the statute doesn't think about that.

And I guess what Justice Gorsuch is saying is that you in arguing this case have had to do something very sensible because, otherwise, it would seem, you know, like, you know, that this statute is loaded with anticircumvention devices.

The entire way this statute is written suggests that Congress was very aware -- aware that there could be small adjustments of a weapon that could get around what Congress meant to prohibit. And  -- and  --and in all kinds of ways, you're accepting of that and saying yes, you can't circumvent it by that.

You can't circumvent it by non- conventional triggers.

You can't circumvent it by, you know, all these things that  -- these hypotheticals I've been giving you.

But you can circumvent it through this one mechanism.

Jonathan F. Mitchell: I'm not conceding that you can circumvent the statute, Justice Kagan. We're just interpreting the word "trigger," which is a term that appears in the statutory text and it has to be interpreted.

When you're dealing with the motorized trigger device, that's an easy case in one direction because that has changed the trigger from the curved metal lever because the shooter is no longer using that to fire the weapon.

Instead, there's a switch that is flipped and that switch is now triggering the device because that is the function, turning on the switch, that then causes automatic fire to occur because there's some motor that's moving the trigger back -- I'm sorry, I shouldn't say the trigger  -- the curved metal lever back and forth.

That's United States against Camp.

This is an easy case because the bump stock doesn't change the trigger in any way.

Ketanji Brown Jackson: But  what do you do  --

Jonathan F. Mitchell: Everyone --

Ketanji Brown Jackson: -- what do you do about modification pieces?  I guess I don't understand your argument insofar as I had taken  the United States to always take the position, and I actually had a case about this when I was a district court judge, where the question was were these flat metal pieces that were mailed internationally to the defendant machineguns.

And we were all confused.

The jury was confused because we had this notion of what a machinegun was.

And the government argued that this metal piece was a machinegun and brought in experts that said, under this statute, anything that can be used to convert a regularly operating semiautomatic weapon into one that rapid fires qualifies.

Jonathan F. Mitchell: I'm sorry, Justice Jackson, rapid --

Ketanji Brown Jackson: That's wrong?

Jonathan F. Mitchell: -- rapid fire is not the test under the statute.

It's not whether it fires rapidly.

It's whether it fires more than one shot automatically --

Ketanji Brown Jackson: Okay, I'm sorry. I'm sorry.

Jonathan F. Mitchell: -- by a single function of the trigger.

Ketanji Brown Jackson: I'm sorry.

Jonathan F. Mitchell: Okay.

Ketanji Brown Jackson: They said it could. But what we focused on was not whether that metal piece changed the way the trigger operated.

Now maybe you're saying that's wrong, but I guess what I'm focused on is that your argument seems to rest on the assumption that the function of the trigger, as Justice Alito says, is what the trigger does inside the gun.

Jonathan F. Mitchell: That's correct.

Ketanji Brown Jackson: Why is it irrational, wrong, et cetera, to think of the function of the trigger as what it does to cause the weapon to automatically fire more than one shot?  If that's what we mean by "function of the trigger," which is in the statute, automatically more than one shot, and what we're saying is by  --if -- if one operation causes the trigger to -- the function -- causes the function of the trigger to make the weapon automatically fire more than one shot, I guess I don't understand why your reading is preferable to that when  --when  --when the common understanding of a machinegun is that it  is doing this sort of thing at the end of the day.

Jonathan F. Mitchell: Well, it's because the trigger on a bump stock equipped rifle does not cause the rifle to automatically fire more than one shot.

You still have to have manual action by the shooter in response to every single shot that gets fired.

The shooter has to continue to thrust that forestock forward --

Ketanji Brown Jackson: Okay.

And if --

Jonathan F. Mitchell: -- with his non- shooting hand.

Ketanji Brown Jackson: -- that's true -- that's true  -- that --that is --

Jonathan F. Mitchell: It is true, yes.

Ketanji Brown Jackson: Okay.

That is a distinction.

My other question then comes in. Why does that distinction matter from Congress's perspective in terms of it writing a statute that it was trying to prohibit that?  If you're right that that's the relevant distinction, I guess I need a reason why there's something inherently so much worse  about a situation in which you push it forward rather than pull it back that that -- that we can reasonably say that that was a particular category that Congress wanted to prohibit?  And that's what I'm missing in your argument.

Jonathan F. Mitchell: Well, it's because -- yeah.

Ketanji Brown Jackson: It doesn't make sense to me that we're going to identify guns on that purpose and say those are the ones that prohibit  --that are prohibited when others that achieve the same result are not.

Jonathan F. Mitchell: It's because the statute was written in 1934, and Congress wasn't thinking about bump stocks when they wrote this statute.

Amy Coney Barrett: Mr. Mitchell  --

John G. Roberts, Jr.: Counsel, you've said several times that you thrust with your non- trigger hand, thrust part of the gun forward.

Jonathan F. Mitchell: Right.

John G. Roberts, Jr.: And I understood your friend on the other side to  focus on it more as maintaining pressure.

Jonathan F. Mitchell: Right.

John G. Roberts, Jr.: Which is it? I mean, do you hold it -- I mean, you have to hold it harder at certain points rather than others, or are you actually moving it with the thrusting?

Jonathan F. Mitchell: You're definitely moving your hand back and forth.

And Mr. Fletcher agreed with us on that point.

The hand is moving.

I think where our disagreement comes in is that Mr. Fletcher seems to characterize the action of the non- shooting hand, so the left hand for a right -handed shooter, as something where you are applying constant pressure in a certain direction, but the recoil is strong enough to overcome that pressure from the non- shooting hand and thereby move the weapon backward, despite the forward pressure that's coming from the non- shooting hand.

Elena Kagan: But that means  --

Jonathan F. Mitchell: There are  --

Elena Kagan: -- that if a  --if a -- I mean, tell me if I'm wrong, but that means that the way a shooter perceives it is by imposing constant forward pressure, not the shooter is thinking I got to do this really fast, you know, going back and forth.

Jonathan F. Mitchell: The shooter can do both.

It takes a lot of practice to master the art of bump firing.

So there is always going to be recoil energy, and no person, I think, is strong enough to push forward in a way that overcomes the recoil energy.

If they were, bump firing wouldn't happen.

So, for successful bump firing to occur, there needs to be that back- and-forth motion.

There's recoil every time the rifle fires.

There's still pressure from the left hand, or the right hand if you're a left- handed shooter.

There's still going to be pressure from that non- shooting hand, but the shooter can decide how much he wants to calibrate t hat pressure in response to the repeated recoils that he's getting from the bump firing.

It doesn't have to be the same amount of pressure each time.

The shooter just has to make sure that the hand is moving back and forth because that's the only way you can have successful bump firing.

But to get back to your question, Mr. Chief Justice, I --

Elena Kagan: But the shooter doesn't make sure that the hand is moving back and forth.

That's the way the recoil operates. The shooter just makes sure that he is pushing forward, and then the recoil  --recoil operates to, in fact, even though the shooter is not experiencing this --

Jonathan F. Mitchell: Mm- hmm.

Elena Kagan: -- is  --is not volitionally experiencing this, the shooter is not moving his hand back and forward.

Jonathan F. Mitchell: That's probably right, unless the shooter is so strong that he has to ease off a little bit to make sure he doesn't overcome the recoil.

But, to my knowledge, I don't think there's anybody strong enough to make  --to actually be able to keep pushing and forcing it past the recoil energy.

But, Mr. Chief Justice, I don't think the answer to this question matters in the end  because, even if we accept Mr. Fletcher's characterization where it's just constant pressure with the same amount of force  continuously over a sustained period of time, it's still a manual action.

There's nothing automatic about that.

The shooter is the one who is pushing.

It's human effort, human exertion.

Nothing automatic at all about this process.

And Mr. Fletcher said during his remarks that the bump stock harnesses the recoil energy of the weapon.

That is false.

With the Akins Accelerator, there is harnessing because the Akins Accelerator has a spring.

So there will be certain types of bump- firing devices like the Akins Accelerator where you can accurately say that the bump stock harnesses the recoil ene rgy of the weapon. Not so with respect to a non- mechanical bump stock.

The weapon recoils. Nothing is harnessed with respect to the recoil energy.

And it is the shooter who must, with that non- shooting hand, continue to thrust the weapon forward in response.

Amy Coney Barrett: If I disagree with you about "automatically," can you win solely on "function of a trigger"?

Jonathan F. Mitchell: Absolutely, yes.

Amy Coney Barrett: Why?

Jonathan F. Mitchell: Because "the single function of the trigger"  --the Solicitor General has to win on both arguments to prevail. We only need to win on one of the two.

So we could win on "automatically" standing alone.

We could win on "single function of the trigger" standing alone.

Or we could win on both.

We respectfully ask the Court to rule on both because there's a well -developed circuit split on each of the two sub -issues within the question presented.

Amy Coney Barrett: Well, speaking of "automatically," can you address the question I asked Mr. Fletcher about a band bump firing? And, you know, he said it was different on the ground of "automatically."  But how do you see them functioning differently?

Jonathan F. Mitchell: They're indistinguishable when it comes to "automatically."  Everything involved with the  band that Your Honor suggested and also everything involved with Mr. Cargill's non- mechanical bump stock is a manual action undertaken entirely by the shooter.

There is no automating device.

Mr. Fletcher has yet to identify any device in the non- mechanical bump stock that automates any task that is necessary for successful bump firing.

It is all being done by the shooter.

There's the recoil after the shot gets fired, and then it is the shooter who must, with his own hand and with his own force, exert pressure forward consistently to make sure that the trigger bumps into his finger.

This  is all manual.

Nothing automatic about it.

Nothing at all.

And the --

Ketanji Brown Jackson: Can I ask you a variation of the hypothetical black- box scenario that the government puts forward in their  -- and you might be familiar with it.

It's on --

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: It's in their brief. So they say that we've got two boxes, each of which continuously fires bullets after the  operator presses and releases a button.

If I hear you correctly -- or maybe you can just tell me.

Jonathan F. Mitchell: Right.

Ketanji Brown Jackson: Box 1, the operator pushes the button and the bullets come out  automatically.

Box 2, the operator holds his finger slightly above the box, and there's something, you know, under the box that pushes the box up into his finger.

So the finger is touching the trigger like a million times because the  -- in order for it to operate, the box is going like so  --

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: -- pushing up.

One is a machinegun, one is not.

Same rate of --

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: -- velocity of bullets coming out.

That's your view?

Jonathan F. Mitchell: The answer to that question depends on what is the trigger.

Ketanji Brown Jackson: Okay.

Jonathan F. Mitchell: And the holding of United States against Camp, that Fifth Circuit decision that said motorized trigger devices are machineguns  --

Ketanji Brown Jackson: Yeah.

Jonathan F. Mitchell: -- and the rationale of that case would be extended to this hypothetical.

So I think the way to think of this, Your Honor, is there are going to be easy cases at each of the extremes, and there are going to be harder cases in the middle.

The easy case is United States against Camp because that is a situation where the trigger was changed.

It no longer is the curved metal lever.

Ketanji Brown Jackson: Right, right,  right.

Jonathan F. Mitchell: It's instead a switch. Everyone agrees with that.

Ketanji Brown Jackson: But I guess -- and -- and your -- and your view is what makes it easy or hard is not the sort of thought of mine that, like, geez, what makes it easy or hard is actually distinguishing those two in the real world, like in terms of what is actuall y happening?

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: You think what makes it easy or hard is just identifying whether the finger is -- is moving because the box is moving  or because the person is pushing it down?

Jonathan F. Mitchell: What makes it hard is whether it's changed the nature of the trigger in some way.

Clearly, that happened in Camp.

This situation with Mr. Cargill, there's not even an argument that the trigger has been changed.

DOJ at no point in this litigation has argued that bump stocks change the nature of the trigger or change the trigger at all.

There will be harder cases in the middle, such as the forced reset triggers and some of these hypotheticals that were discussed in the D.C. Circuit's opinion in Guedes, where there may be a question as to what exactly the trigger is and then how does that trigger function.

So, again, going back to Camp, when there's a flip of a switch that turns on a motor and that motor then forces the curved metal lever back and forth, that's automatic fire. That's a machinegun because we now have a n ew trigger, the switch.

It's no longer the curved metal lever.

So can that rationale be extended to some of these hypotheticals where we talk about black boxes and oscillating buttons?  What  exactly is the trigger there?  Is it merely the button?  Is it the motor that's moving the button up and down?  It's arguable either way.

We don't think the Court should resolve any of that, I understand, but for us to take a position on the question, it's all g oing to depend on whether you can extend the holding of Camp to these new situations.

The Akins Accelerator is a good example to think about because, in 2006, when ATF changed its position on the Akins Accelerator, ATF initially approved that device in 2002.

2006, it changed its mind.

And if you look at the classification letter, their argument rests on an argument similar to what Mr. Fletcher is making today. They cite the legislative history from Karl Frederick and say that "function of the trigger" means "pull of the trigger."  That rationale is not going to work if the Akins Accelerator is going to be characterized as a machinegun.

What might work, though, is if there's some possible argument to extend the holding of United States against Camp to the Akins Accelerator.

Does that spring in the Akins Accelerator change the nature of the trigger?  That's the question that needs to be addressed.

If ATF wants to continue to characterize the Akins Accelerator as a machinegun, it's going to need to come up with a much better argument than what it offered in 2006.

We're not closing the door on that possibility, but we do think the actual rationale that ATF has used is just as faulty as their rationale for banning non- mechanical bump stocks.

John G. Roberts, Jr.: Thank you, counsel.

Justice Thomas?

Clarence Thomas: Mr. Mitchell, the  -- I think we -- you would agree that the bump stock accelerates the rate of fire?

Jonathan F. Mitchell: Absolutely.

Clarence Thomas: Why wouldn't you then take the further step of saying it changes the nature of the trigger in doing that?

Jonathan F. Mitchell: Because the trigger still has to reset after every single shot. It's not accelerating the rate of fire by changing the trigger.

It's accelerating the rate of fire  --

Clarence Thomas: That's not really what I'm trying --

Jonathan F. Mitchell: I'm sorry.

Clarence Thomas: So the -- why wouldn't you say that you have enhanced the triggering mechanism by using the bump stock?

Jonathan F. Mitchell: Because it's not changing the triggering mechanism at all.

It's simply making it easier for the shooter to bump that trigger repeatedly.

The nature of the triggering mechanism remains exactly the  same. What's going on inside the gun after the trigger gets bumped is no different than what it would be if it were a semiautomatic rifle without the bump stock.

And that's why the government can't win on this "single function of the trigger" point.

Clarence Thomas: I think  -- I think the difference is that there may be some who believe  -- when -- when you look at it, the nature of the firing has changed as a result of the bump stock.

So, if that's changed, why don't you simply then look backwards and say  that the nature of the firing mechanism has changed; thus, the nature of the trigger has changed?

Jonathan F. Mitchell: What's changed, though,  is the rate of fire.

And it's still one shot per function of the trigger, even though those shots are coming out of the barrel a lot faster than they were before.

The question is, how many functions of the trigger do we have for each of the shots?  And the answer is one.

If you divide the number of shots that are fired from a bump stock equipped rifle by the number of times the trigger has to function to produce that shot, the answer will always be one, and it will remain that way because nothing in the triggering mechanism has changed.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: Can you imagine a legislator thinking we should ban machineguns, but we should not ban bump stocks?  Is there any reason why a legislator might reach that judgment?

Jonathan F. Mitchell: I think there is.

Bump stocks can help people who have disabilities, who have problems with finger dexterity, people who have arthritis in their fingers.

There  could be a valid reason for preserving the legality of these devices as a matter of policy, even while similar weapons, such as the fully automatic machineguns, are being banned.

Whether Congress would ultimately make that judgment, we would have to wait and find out whether they would decide it along those ways.

But there are respectable arguments for why these could remain legal as a matter of policy.

Samuel A. Alito, Jr.: In --

Sonia Sotomayor: Why would anybody  --

Samuel A. Alito, Jr.: I'm sorry.

Sonia Sotomayor: I'm sorry.

Samuel A. Alito, Jr.: That's okay.

In the field of statutory interpr etation, Justice Scalia's bte noire was the Church of the Holy Trinity, a case where he thought that the literal language of the statute had to control even though it's pretty hard to think that Congress actually meant that to apply in certain situations.

As you see this case, is this another Church of the Holy Trinity case?

Jonathan F. Mitchell: I would say it's quite as egregious as Church of the Holy Trinity, but  the arguments the government's making are certainly in the spirit of Holy Trinity, to borrow a phrase that was used from the Holy Trinity opinion, and I don't think a textualist judge can accept the rationale that's being offered by the U.S. Government and they are in their brief especially making purposivist arguments along the lines of what we saw in Church of the Holy Trinity.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Why would even a person with arthritis, why would Congress think they needed to shoot 400 to 7- or 800 rounds of ammunition under any circumstance?

Jonathan F. Mitchell: You can't choose  --

Sonia Sotomayor: If you don't let a person without arthritis do that, why would you permit a person with arthritis to do it?

Jonathan F. Mitchell: They don't shoot 400 to 700 rounds because the magazine only goes up to 50.

So you're still going to have to change the magazine after every round.

We allow large capacity magazines up to 50.

And also, there are many shooters who can pull the trigger of a semiautomatic rifle very quickly, who can accomplish rates of fire similar to those that approach fully automatic weapons.

So I don't  --

Sonia Sotomayor: All right. Counsel, you spoke about legislative history and -- and I think you're trying to bat away all of the statements during the legislative process that called functions of the trigger the single pull of the trigger by the shooter.

Jonathan F. Mitchell: That's right.

Sonia Sotomayor: But it's not classic legislative history.

It's how people understood a term at the time.

That's not legislative history.

Jonathan F. Mitchell: Well, it's still legislative history.

They're just using it for a purpose that they claim --

Sonia Sotomayor: Well, Justice Thomas said in McDonald versus City of Chicago that it's perfectly acceptable to do that, to use, he said, if it's being cited to show what lawmakers -- how lawmakers used a particular  term that's different than what they intended.

Jonathan F. Mitchell: So, if we're using legislative history in an effort to discern the original public meaning of the statute, which is how I understand Your Honor's characterization.

Sonia Sotomayor: Exactly.

Jonathan F. Mitchell: And I think that's how Mr. Fletcher is trying to characterize his reliance on this statement from Mr. Frederick --

Sonia Sotomayor: It's not just that.

Jonathan F. Mitchell: -- which is -- which is the statement of a lobbyist.

Sonia Sotomayor: We've got statements -- we've got statements in the House from legislators in the House, we have statements from legislators in the Senate, all of them consistently translating "function of the trigger" to mean a single pull of the trigger.

Jonathan F. Mitchell: Right.

And they're all wrong because the statute also was written to encompass weapons that have push triggers rather than pull triggers.

And the Solicitor General  acknowledges this point in her opening brief.

Sonia Sotomayor: Well, that  -- what it suggests to me is that contrary to what you're saying, that is they never understood this to be how the trigger functions but how the shooter functions.

Jonathan F. Mitchell: No, I think we should draw the exact opposite inference.

It proves how unreliable legislative history is as a tool to try to discern what the statute means --

Sonia Sotomayor: We're going to disagree.

Jonathan F. Mitchell: -- because -- well, it's because, Justice Sotomayor, the phrase "pull of the trigger" can't be equated with "function of the trigger."  And even the Solicitor General acknowledges that because they say in their brief that the statute needs to be read in a way that encompasses fully automatic weapons that have push triggers r ather than triggers that are pulled.

So the word "function" --

Sonia Sotomayor: And you agree?

Jonathan F. Mitchell: I'm sorry, go ahead.

Sonia Sotomayor: And -- and you agree?

Jonathan F. Mitchell: I agree that function can't be equated with the word "pull."

Sonia Sotomayor: But the only way you can get there is by looking at what the shooter is doing.

Jonathan F. Mitchell: No, that's not --

Sonia Sotomayor: Okay, counsel. Thank you.

Jonathan F. Mitchell: -- correct.

You don't need to look at what the shooter is doing.

A weapon can go off by accident.

You don't need a shooter.

There's still a function of  the trigger if the weapon falls on to the floor and goes off accidentally with a discharge.

The trigger has functioned even though the shooter hasn't pulled the trigger or pushed it or bumped it.

What matters under the statute is what the trigger does. And all these examples that we see in the Solicitor General's brief, Justice Gorsuch  mentioned this earlier, when they're taking transitive verbs, when they say swing of the bat or stroke of the key or roll of the dice, all of those are transitive verbs that are capable of taking an object.

So, when you see swing of the bat, there's obviously an unnamed actor in that sentence that is the subject of the verb swing. The bat can't swing itself.

The bat's an inanimate object.

Function of the trigger is entirely different.

Function is an intransitive verb. It can't take an object grammatically.

It's impossible.

Trigger has to be the subject of function.

It can't be the object.

John G. Roberts, Jr.: Thank you, counsel.

Jonathan F. Mitchell: I'm sorry.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: I guess, Mr. Mitchell, I mean, those four words are not the entire statute, you know, function of the trigger.

It's by a function of the trigger and what's the by?  It's shooting -- you know, presumably, a shooter is there, but, you know, maybe it happens spontaneously, but shooting more than one shot by a single function of the  trigger.

I mean, that's the relevant language, right, shooting more than one shot by a single function of the trigger.

And then there's also the automatic thing.

Jonathan F. Mitchell: Automatic, yeah, that's right.

Elena Kagan: So I don't want to  -- I don't want to ignore that.

But it  --it seems as if you look at the entire phrase, what that means is that Congress had wanted to de -link the number of shots that were coming out of a barrel, right, more than one shot, it wanted to de- link that from a discrete human action. And I would think, you know, it might be you pull the trigger, it might be you push the trigger, it might be you switch on the trigger, it might be you voice -activate the trigger, there's a discrete human action and it produces a torrent of bullets.

And that's exactly what's happening here.

You push the bump stock.

Now you're -- you're saying, well, maybe they didn't define the bump stock as the trigger, but -- but it -- it functions in precisely the same way.

And a torrent of bullets comes out, and this is in the heartland of what they were concerned about, which is anything that takes just a little human action to produce more than  one shot is what they were getting at.

Jonathan F. Mitchell: That's just not the way they wrote the statute.

If that's what they were getting at, they should have drafted the statute  --

Elena Kagan: Shoot  --

Jonathan F. Mitchell: -- better than what they did.

I mean, it depends on whether more than one shot is coming out by a single function of the trigger.

And I agree with Your Honor, there  -- the rate of fire of a bump stock equipped rifle approaches the rate of fire of a fully automatic weapon.

And there may be good policy reasons to treat these as identical.

There may also be good policy reasons to distinguish them.

That's ultimately a decision for Congress to make.

It's certainly not a decision for a court or for an administrative agency that's charged with implementing the instructions of Congress.

Elena Kagan: I mean, Mr. Mitchell, I will tell you I  -- I view myself as a good textualist.

I think that that's the way we  should think about statutes.

It's by reading them.

But, you know, textualism is not inconsistent with common sense.

Like, at some point, you have to apply a little bit of common sense to the way you read a statute and understand that what this statute comprehends is a weapon that fires a multitude of shots with a single human action.

Whether it's a continuous pressure on a  -- a conventional machinegun holding the trigger or a continuous pressure on one of these devices on the barrel, I  --I can't understand how anybody could think that those two things should be treated differently.

Jonathan F. Mitchell: Well, they're treated differently because the statute turns on a single function of the trigger.

And the problem for the government is they're not able to change the nature of the trigger that currently ex ists on a semiautomatic rifle simply by adding a bump stock, which is nothing more than a casing that allows the rifle to side slide back and forth.

The trigger is exactly the same as what it was before, and the function of the trigger is exactly the same as what it was before.

I mean, think of a semiautomatic rifle where someone just has a very quick trigger finger.

That could also have a very, very high rate of fire, but it's still one shot per function of the trigger.

And that's the problem here the government still is not able to overcome.

Every time that trigger functions inside a bump stock equipped rifle, there is one shot and only one shot that gets fired, even though there may be rapid functions that occur consecutively because of the bump stock equipped device.

Elena Kagan: Thank you.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Justice Gorsuch?  Justice Kavanaugh?

Brett M. Kavanaugh: In response to a lot of the questions, you've made the point that bump stocks were not around as of 1934.

And that's a  --a good point for you. But what evidence is there, if any, that as of 1934, the ordinary understanding of the phrase "function of the trigger" referred to the mechanics of the gun rather than the -- the shooter's motion?

Jonathan F. Mitchell: Well, it had to.

And the evidence that we can see is the evidence the Solicitor General points out about the fact that there were push triggers in existence at that time.

And that function of the trigger, even though you can find legislative history where there seem to be people who think "function of the trigger" means the same thing as "pull of the trigger," those phrases cannot be equated for that very reason.

Brett M. Kavanaugh: I guess I'm asking the opposite.

Jonathan F. Mitchell: I'm sorry.

Brett M. Kavanaugh: Was there any evidence that someone was drawing that -- distinction?

Jonathan F. Mitchell: Drawing the distinction between push and pull or  --

Brett M. Kavanaugh: No.

The distinction between function  --that "function of the trigger" meant something different.

Jonathan F. Mitchell: I'm not aware of that in the legislative history, but as a textualist

Brett M. Kavanaugh: Are you aware of that anywhere in kind of communication at the time?

Jonathan F. Mitchell: Not at the time, no, because the communication, as we can see from the record, was rather sloppy.

People were using "pull of the trigger" as a phrase that they thought was synonymous with "function of the trigger."

Brett M. Kavanaugh: I guess  --

Jonathan F. Mitchell: And that obviously is not the case.

Brett M. Kavanaugh: Okay.

So no one that was saying, oh, "function of the trigger," that's a different phrase than "pull or push" and, therefore, it means something different? -- Are you aware of anyone who said that anywhere

Jonathan F. Mitchell: No, but as  --

Brett M. Kavanaugh: -- in America at the time?

Jonathan F. Mitchell: I'm not aware of that. But, as a textualist, I don't find that concerning because everybody  --

Brett M. Kavanaugh: Well, if -- as a textualist, you have to think about the phrase, not just each word in the phrase.

That's --

Jonathan F. Mitchell: That's right.

That's right.

Brett M. Kavanaugh: Yeah.

Jonathan F. Mitchell: And we look at the phrase "function of the trigger," as I was saying earlier, and Justice Gorsuch made this point in some of his earlier questioning  --

Brett M. Kavanaugh: Yeah.

Jonathan F. Mitchell: -- "function of the trigger"  --

Brett M. Kavanaugh: Yeah.

Jonathan F. Mitchell: -- I mean, a trigger is  --we talked about this before -- "trigger" has to be the subject of "function."  It can't be the object or --

Brett M. Kavanaugh: Right, and now  -- so the follow- on question is just focus on the phrase, and I'm just making the point, I don't think anyone said this at the time  --

Jonathan F. Mitchell: Right.

Brett M. Kavanaugh: -- which doesn't defeat your argument.

I'm not suggesting it defeats your argument.

Jonathan F. Mitchell: Right.

Brett M. Kavanaugh: But it would obviously help your argument if people were drawing that distinction, correct?

Jonathan F. Mitchell: It certainly would help, but the phrase, given the way it's written right now and the impossibility textually of trying to make "trigger" into an object of the verb "function" --

Brett M. Kavanaugh: Okay.

And then no one was drawing the distinction.

Why would Congress have drawn that distinction?  Your big point, I think, we got to look at 1934, we got to look at what Congress wrote.

Why would Congress have drawn that distinction in 1934?

Jonathan F. Mitchell: Because they wanted to -- 102 get the fully automatic weapons that had the push triggers.

And if you use "pull the trigger," you're not going to reach those devices.

So they had to say "function of the  trigger" to make sure we encompassed those forms of weaponry, as well as the conventional fully automatic weapon.

Brett M. Kavanaugh: To cover push and pull?

Jonathan F. Mitchell: Push and pull, exactly.

Brett M. Kavanaugh: And how should it be defined now in your view -- you may have just answered this --

Jonathan F. Mitchell: Yeah.

Brett M. Kavanaugh: -- to cover bump stocks?  In other words  --

Jonathan F. Mitchell: So  --

Brett M. Kavanaugh: -- if tomorrow Congress said, Mr. Mitchell, how should we write the statute to cover bump stocks since "function of the trigger," in your view, doesn't do it?

Jonathan F. Mitchell: Well, I'd have to ask them what else do you want to encompass besides bump stocks.

If they want to make it specific

Brett M. Kavanaugh: Just  --just bump stocks.

Jonathan F. Mitchell: Well, then I would --

Brett M. Kavanaugh: Just give me a sentence that you think would cover bump stocks.

Jonathan F. Mitchell: I would provide a statutory definition of bump stocks that tracks as closely as possible the non -mechanical devices that Mr. Cargill has.

And I certainly wouldn't say  --

Brett M. Kavanaugh: It's not --

Jonathan F. Mitchell: -- "single function of a trigger."

Brett M. Kavanaugh: -- great statutory language.

Jonathan F. Mitchell: Yeah.

Brett M. Kavanaugh: You got anything better than that?  (Laughter.)

Jonathan F. Mitchell: I think you could say any device -- and this may be a little too broad -- but you could say any device that is used to accelerate the rate of fire from a semiautomatic weapon.

That would probably capture  -- that would certainly capture bump stocks.

It might capture some other things, but those other things would be similar enough to bump stocks that Congress would probably w ant to ban them as well, which they --

Brett M. Kavanaugh: Yeah.

Back in the '30s, some of the state statutes did that, I guess --

Jonathan F. Mitchell: Yeah.

Brett M. Kavanaugh: -- at the time. Okay.

Last question.

You haven't made a Second Amendment or constitutional avoidance argument. In your view, are bump stocks covered by the Second Amendment, protected by the Second Amendment?

Jonathan F. Mitchell: We didn't argue that because courts are generally loath to decide constitutional questions when there's an easy statutory off- ramp.

Brett M. Kavanaugh: You didn't throw it in as constitutional avoidance, and I imagine that was a considered choice, and I'm curious what  --what was behind that choice.

Jonathan F. Mitchell: There's nothing that prevents this Court from invoking the constitutional avoidance canon on the Second Amendment issue because there is a question at least whether this falls within the  dangerous and unusual weapons carveout in Heller.

We don't have a position on that question because we didn't brief it, and also "dangerous and unusual weapons" is vague enough that it's just not clear to us what the answer would be.

Brett M. Kavanaugh: Thank you.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Justice Barrett?  Justice Jackson?

Ketanji Brown Jackson: So I guess I'm still not clear as to why you believe there's only one meaning of "function of the trigger" in this context.

So why couldn't we read the words "function of the trigger" in this statute to mean  the function of the trigger is to start a chemical reaction that leads to the expulsion of a projectile?  If I read "function of the trigger in that way," I think I come out to a different result than you are positing.

So help me to understand why that couldn't be the function of the trigger.

You --in other words  --I know.

I'm sorry.

Jonathan F. Mitchell: That's okay.

Sorry.

Ketanji Brown Jackson: Confusing question.

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: You seem to be saying that the function of the trigger and the only one that Congress cared about, that matters for the way this statute reads --

Jonathan F. Mitchell: Right.

Ketanji Brown Jackson: -- is the movement of the trigger.

Jonathan F. Mitchell: No.

Ketanji Brown Jackson: No?

Jonathan F. Mitchell: Not necessarily the movement.

Ketanji Brown Jackson: Okay.

Tell me.

Jonathan F. Mitchell: It's what the trigger does  --

Ketanji Brown Jackson: Yes.

I'm sorry.

Jonathan F. Mitchell: -- to cause the weapon to fire.

That's --

Ketanji Brown Jackson: Okay.

What the trigger does.

And I guess --

Jonathan F. Mitchell: And it's more than just the movement.

Ketanji Brown Jackson: -- I'm saying what the trigger does, both in this case, in a bump stock case, and in a machinegun case, is to start a chemical reaction that leads to the expulsion of a projectile.

Jonathan F. Mitchell: There  --

Ketanji Brown Jackson: So  --

Jonathan F. Mitchell: -- there are other devices in the firearm that actually do that part.

What the trigger does, it releases the powder --

Ketanji Brown Jackson: No, no.

No, no. But it's  --it's like -- it's like causation, right?  It's like  -- it's like Mrs. Palsgraf standing on the scale.

Jonathan F. Mitchell: Sure.

Ketanji Brown Jackson: I mean, the trigger, the trigger, y ou know, the function of it, right, one could say is to start this chemical reaction.

Now some weapons might do it with a button; some might do it with a pull.

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: Some weapons might do it by moving back and forth quickly, by the mechanics of the gun operating in a certain way. Others might do it by the mechanics of the gun operating in a different way.

But I could say that the function is to begin the chemical reaction that results in the expulsion of this weapon, and that happens  both in the bump stock situation and in this situation.

So I don't understand why this statute couldn't be read as  -- the way that the government is.

Jonathan F. Mitchell: Even if -- even if you read the statute that way, Your Honor, I don't see how that wins the case for the government because  --

Ketanji Brown Jackson: Why not?

Jonathan F. Mitchell: Because only one shot is being fired per function of the trigger.

So it's single  --

Ketanji Brown Jackson: No.

Single function  --

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: -- right, if I read the single --

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: There's only a single thing happens  --

Jonathan F. Mitchell: Right.

Ketanji Brown Jackson: -- to begin the chemical reaction that expels the bullet, right?

Jonathan F. Mitchell: That expels one bullet, one shot.

Ketanji Brown Jackson: But then we go into the other part of the statute, "automatically,"  multiple shots.

You can't forget the rest of the statute.

That was Justice Kagan's point.

Jonathan F. Mitchell: Certainly not.

Ketanji Brown Jackson: So, when we put those together, the work of the function of the trigger, I think, could be to start the chemical reaction that then results in the automatic shoot -- more than one shot coming out of the gun.

Why can't I interpret it that way?

Jonathan F. Mitchell: If that's what actually were happening, then I think you would have a plausible argument for why this is a machinegun.

Ketanji Brown Jackson: But that's just because  --

Jonathan F. Mitchell: That's just not what happens  --

Ketanji Brown Jackson: But  --but --

Jonathan F. Mitchell: That's not the way it works.

Ketanji Brown Jackson: -- but that's just because you're interpreting the statute to say you have to  -- it has to be about the mechanics.

Jonathan F. Mitchell: No.

Ketanji Brown Jackson: And what I'm trying to understand is how that's consistent with  Congress putting "modifications" in here.

Jonathan F. Mitchell: I'm just saying as a  -- right.

Ketanji Brown Jackson: And that -- can I --

Jonathan F. Mitchell: Sorry.

Ketanji Brown Jackson: -- can I --can I just change the -- a little bit?

Jonathan F. Mitchell: Mm- hmm.

Ketanji Brown Jackson: If you're right that Congress cared about exactly the mechanistic operation, then I'm confused as to why this statute also talks about modifications, bec ause that suggests that Congress was not hung up on exactly how this gun operates.

We're  --we're sweeping in all kinds of things, things that originally weren't designed to work  this way at all, right?  We're  -- we're --we're allowing for machineguns to include things that can modify something that didn 't operate this way at all into a machine -- into the kind of thing where a chemical reaction kicks it off and it automatically fires more than one shot.

If that's what I'm thinking about, then I guess I don't understand your hang- up over how this operates mechanistically.

Jonathan F. Mitchell: Well, the test under the statute is whether it can be readily restored to fire automatically more than one shot by a single function of the trigger.

It's not whether it can be modified to fire automatically more than one function of the trigger.

And if you  --

Ketanji Brown Jackson: All right.

Well, I'll look that up.

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: Yeah.

Jonathan F. Mitchell: And just to get back to your earlier question, Justice Jackson --

Ketanji Brown Jackson: Mm- hmm.

Yes.

Jonathan F. Mitchell: -- it's factually incorrect to say that a function of the trigger automatically starts some chain reaction that propels multiple bullets from the gun.

A function of the trigger fires one shot.

Then the shooter must take additional manual action.

Ketanji Brown Jackson: I -- I understand --

Jonathan F. Mitchell: All right?  So there's no  --

Ketanji Brown Jackson: -- that's your argument.

Thank you.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Rebuttal, Mr. Fletcher?

Brian H. Fletcher: Thank you, Mr. Chief Justice.

So I take from my friend's answers today that he does not seriously dispute that a rifle with a bump stock does basically the same thing as a machinegun and is basically just as dangerous as a machinegun.

But his argument is the words that Congress wrote in 1934 just don't cover it because the words "single function of a trigger" unambiguously refers to the movement or the mechanics of the trigger, without regard to the action of the shooter.

We are not making a Holy Trinity argument.

If that is what the words meant, then we would be stuck with the words.

We are not asking you to depart from the plain language.

We're asking you to give it its natural reading.

And I think, to understand why the statute not only can be but should be read our way, it's worth thinking about how many people you have to disagree with in order to adopt my friend's reading.

So, first of all, on the grammar, Judge Ho, at page 56a of the Petition Appendix, explains why it's perfectly natural to read "function of the trigger" to refer to what the shooter does to the trigger, not to what the trigger does by itself.

Second, Justice Kavanaugh, you asked about contemporaneous usage.

There's a lot of contemporaneous usage of people using the term "pull of the trigger" to be synonymous with "function of the trigger."  That makes perfect  sense if we're talking about what the shooter does, because the way the shooter activates most, not all, but most triggers is by pulling on them.

But I think my friend conceded that usage is all inconsistent with his reading.

And as  you pointed out, there is no evidence that anyone at the time or ever since, until the  development of devices like these, ever thought that "function of a trigger" meant mechanical movement independent of any action by the shooter.

It's also worth emphasizing that even if you looked at what the trigger does by itself, what the trigger does is accept some input by the shooter.

Justice Kagan, you asked about what about a voice-activated trigger?  You could also have a trigger that works by swiping a touchscreen.

Those triggers don't necessarily have any moving parts.

On our understanding, we say, is there an act of the trigger that -- of the shooter that initiates the firing sequence, a spoken command, a swipe on the touchscreen, it works perfectly.

On my friend's understanding, I have no idea how he would deal with a firearm that had a trigger that did not have moving parts.

We've also talked some about automatically, and I take my friend's point to be that he thinks because there's some continued manual input, the pushing forward, it can't be automatic.

But automatic just means by way of a self-regulating mechanism.

It doesn't mean it eliminates all manual input.

It just means that it eliminates some of it.

And contrary to what my friend said, a bump stock does eliminate manual action that the shooter has to take.

With a semiautomatic weapon, you have to pull and release the trigger with each shot.

With an auto  --with a bump stock the bump stock allows the recoil from each shot to automatically push the rifle back, disengaging the trigger, eliminating the need for the shooter to manually release,  and then it channels the forward and backward movement in exactly the right way to allow a continuous firing cycle to continue. Now I think it's also telling, some of the gymnastics with respect that my friend has to do in order to deal with all of the other hypothetical and actual devices that have been out there because I think he recognizes that the Akins Accelerator, the LV 15, the electronic reset assist device, the fishing reel in  Camp, all of these workarounds have to be covered by the statute because it's just not plausible to think that Congress enacted something subject to such easy evasion.

But the only way he can say that those are covered is by engaging in very implausible understandings of what the trigger is.

I think, for the Akins Accelerator, he suggested that maybe the trigger is the spring in the back of the rifle rather than the lever that the  -- the shooter actually pulls to start the firing sequence.

On the black box hypothetical, I'm still not sure what his answer is, but I think it must be that the button is the trigger the first time it moves up and down, but then it stops being  the trigger when it keeps moving up and down afterwards. I think those are all very implausible interpretations that this Court should not give  to a statute if there's another reading available, and our view is that there is another reading available.

In short, we think Congress in 1934 wrote this statute not just for the kinds of devices that existed then but for other kinds of devices that could be created in the future that  would do the same thing.

It enacted and strengthened these laws because it did not want members of the public or our nation's law enforcement officers to face the danger from weapons that let a shooter spray many bullets by making a single act.

That's exactly what bump stocks do, as the Las Vegas shooting vividly illustrated, and we think this Court should give the words Congress wrote their full, natural meaning and hold that they encompass bump stocks.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.