ruling. the oral argument is an hour and 30 minutes. >> we will hear arguments first in case garland v. cargo.

>> to fire a rifle fitted with a bump stock, the shooter faces his trigger finger on the built-in finger ledge and uses his other hand to press the rifle forward. as long as they maintain steady forward pressure, the rifle will fire continuously until it runs out of bullets and will empty a 100 round magazine in about 10 seconds. those weapons do exactly what congress meant to prohibit when it enacted the prohibition on machine guns, and those weapons are machine guns because they satisfy both parts of the definition. first, a rifle with a bump stock fire is more than one shot with a single usage of the trigger. a function of the trigger happens when some act by the shooter starts a firing sequence. with a semi automatic rifle, it fires one shot for each action of the trigger because the shooter has to pull and release the trigger for every shot.

a bump stock eliminates those movements and allows shooter to fire many shots with one act, a forward push. a respondent says a separate function of the trigger happens every time the trigger on a traditional rifle moved backwards and releases the hammer, even if it moves without any further manipulation by the shooter, but that is inconsistent with contemporary usage, does not account for guns with other kinds of triggers, and would make it easy to avoid the ban on machine guns by automating the back-and-forth movement of the trigger after the initial poll. a rifle with a bump stock fire is more than one shot automatically. when the user pushes forward to fire the first shot, the bump stock uses the recoil energy to create a continuous back and forth cycle that fires hundreds of shots per minute. the respondent says that cycle is not automatic because the shooter has to keep up forward pressure to keep the cycle going , but traditional machine guns require backward pressure on the trigger to maintain continuous fire.

either way, a single motion initiates and maintains a single shot sequence, and either way the weapon is a machine gun. i welcome questions. >> what would i have to do to fire a machine gun? >> it depends on the machine gun. some it is the push of a button, summit is the pull of a trigger. the statutory definition is, does it shoot more than one shot automatically by single function of the trigger? justice thomas: but i don't have to do anything else, put pressure on it or anything else? mr. fletcher: it depends on the gun. if you take the traditional m-16 gun, you are right, to fire more than one shot, you have to pull the trigger and hold it back and as long as it maintains pressure, it keeps shooting. justice thomas: with the bump stop, what would i do different? mr. fletcher: it is the same thing in the sense that one motion automates back and forth movement.

justice thomas: what is happening with a trigger initiated firing of a machine gun? what do i have to do other than press the trigger? mr. fletcher: a traditional machine gun, take an m-16, you pull the trigger back and hold it and it keeps shooting. with a bump stop, you push forward and that both initiates and continues to fire. justice thomas: what is happening with a trigger when you have the recoil. mr. fletcher: right. the primary function of the trigger, the difference with the bump stock is it fires multiple shots automatically by automating the movement of the trigger. my friend says the trigger moves back and forth every time the shot is fired. our view is those subsequent motions of the trigger are not functions of the trigger because they are not responding to separate acts by the shooter. justice thomas: what is happening with the trigger when someone does not need a bump stock to fire a weapon? mr. fletcher: this is the

unassisted manual firing, where an expert can take a regular semi automatic rifle and hold it loosely enough that they can do something like bump firing. there is just one function of the trigger because the first push starts the sequence. the atf explained and we agree that's not automatic because there is no self-regulating mechanism. justice thomas: what's the difference? the same thing is happening with the trigger. mr. fletcher: that's why we would say with manual bump firing, there is a single function of the trigger, one action that initiates the firing sequence. we think it is not automatic. the user is having to do all the work that the bump stock automates for you. >> i am having a little trouble with the non-trigger hand. are you just holding the gun or pushing it forward and then back, forward and then back? mr. fletcher: the best place to look is the district court actual findings.

what he explains is from the shooter's perspective, it is one continuous forward push. mentally you are doing nothing but pushing forward. >> continuously pushing forward? are you holding it with pressure or are you moving your hand? mr. fletcher: i distinguish between those things because what you are doing is pushing forward. if you look at the videos we cite, some of them are in slow motion and when the shooter does that, the hand is moving forward very fast, 600 times a that is second. not happening because the shooter can move their hand back and forth 600 times a minute. it is not happening because the shooter can move that fast. it's happening because when a shot is fired, the recoil drives the rifle backward and overcomes the pressure momentarily. that lets the trigger reset and another shot be fired. we view it as one act and we think that's what the district court found.

>> would it be right to say that the pressure on a typical machine gun, you are pulling and feeling continual backward pressure? and on this you are feeling continual forward pressure of the opposite hand? mr. fletcher: exactly right. i think that's exactly what the district court found. >> mr. fletcher, i watched these videos to try to figure out what this looks like. i want to ask about the bump firing. what if i designed something and i called it a bump band. you can do it with the, with your belt loop. what if i design and market something i call a bump band to turn my semi automatic in the same way, why wouldn't that be a machine gun under the statute? mr. fletcher: we think that is not functioning automatically because it is not a self-regulating mechanism. those devices help the shooter keep their trigger finger still but the shooter still has to manage the movement of the rifle, hold it so it moves backward the right distance and

the right direction, then hold it so it moves forward in the right distance. what makes the bump stop different is it is built for this purpose. it has a finger ledge that holds your finger in place but also has a sliding function so when a shot is fired, the recoil pushes the rifle back, lets it disengage from the trigger so the shooter does not have to manually release it, and allows it to move forward just the right distance and direction. >> may be mr. mitchell can help me understand what that means because it seems it helps you do it better but it functions the same way. intuitively i am sympathetic to your argument and it seems like this is functioning like a machine gun would. looking at that definition, why didn't congress pass that legislation to make this covered more clearly? i think your argument depends on volition. let me give you a hypothetical and tell me if this satisfies

the definition. let's imagine someone builds a fully automatic machine gun. 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 leave the gun there unattended. walk away. somebody trips the wire and it begins shooting lots of rounds. does that satisfy your definition of machine gun? mr. fletcher: i think it does, because a single act -- we have used different words, like volition -- but the idea is, is some separate 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 enact a machine gun, but a tripwire is still one act by a person. justice coney barrett: but it is an unintentional act. for the bump stop to work, you still have to have your finger right there. what you are focusing on is the definition. the circuit looked at it from

the perspective of the gun and the machinery of the gun, but you still need your finger there to pull back the trigger the same way you would if it was volitional. mr. fletcher: not quite. the typical way you fire these bump stocks, acknowledged in the petition appendix, you don't initiate firing by pulling backward with the trigger finger. the finger stays stationary. you initiate by pushing. the district found you could replace your trigger finger with a plastic post attached to the bump stock and it would work the same. it's true you have to keep your finger there and if you moved it, the firing sequence would stop, but that is a pretty trivial input from the shooter. what is continuing the sequence is the push forward. >> can i ask, stepping back a moment, why do these distinctions with respect to operations matter? i read the 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, being prohibited. i am trying to understand, if it is true that the distinction being focused on here is the one between the movement of the trigger going back and forth or staying the same, i am trying to understand why that matters for the purpose of this classification. mr. fletcher: 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, including by the president of the nra when he proposed the language that became the statute. ever since people have equated function of the trigger with pull the trigger. that makes sense if you read function of the trigger to be an act by the shooter. justice brown jackson: i thought your answer was going to be, we don't think it matters because of something you said in the

intro. these are the kinds of weapons congress was intending to prohibit because of the damage that they cause, or something like that. i read the word function to be doing significant work in this statute. when function is defined, it is really not about the operation of the thing, it's about what it can achieve, what it is being used for. 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. the classification of weapons we are trying to identify are those that function in that same way. mr. fletcher: i agree with most of that, but our argument is not congress band machine guns because they are dangerous. anything that is dangerous or shoots fast is a machine gun. we draw the interpretation from the text. justice brown jackson: how about

anything in which the trigger functions the same way? by functions, i don't necessarily know that that means it has to move in the same way. it could function the same way insofar as it automatically allows for 800 rounds to be released. mr. fletcher: exactly, the function of the trigger let's the shooter start the firing sequence, and we think the statute is aimed at we are worried about guns that let you shoot many shots without manual action. a single function of the trigger, does the shooter have to do one thing or many things? >> can we step back a minute? i can understand why these should be made illegal, but we are dealing with a statute enacted in the 1930's. through many administrations, the government took the position that these bump stocks are not machine guns. then you adopted an interpretive

role, not even legislative, saying otherwise that would render between a quarter of a million to a half million people federal felons, not even through a process they could challenge, subject to 10 years in federal prison, and the only way they can challenge it is if they are prosecuted, and they may wind up dispossessed of all guns in the future, as well as other civil rights, including the right to vote. i want your reaction to that. i believe there are a number of members of congress, including senator feinstein, who said this administrative action forced all legislation that would -- action forestalled a gestation that would have dealt with this topic directly, rather than using a 100-year-old statute in a way that many districts would not have anticipated.

>> there is a lot packed in there, so i do have a lot of thoughts. this court often concludes that the statutes are the runway. i think the government should do the same thing. after the las vegas shooting, i think it would have been responsible for the atf not to take another closer look at this prior interpretation, reflected in a handful of classification letters, and to look at the problem more carefully. having done that, i think it would have been irresponsible if the atf concluded, as it did, that these devices are prohibited, for the atf not to fix it. justice gorsuch: why not do it by a legislative rule properly? i know you noticed the comment. but an interpretive rule, you can more or less just issue. you do not even have to put it in the federal registry. you do in some circumstances, but not all. you are creating a class of between a quarter of a million and a half a million people who have, in reliance on past administrations, republican and democrat, who said this does not

qualify under the statute. an interpretive rule, you cannot even challenge it. mr. fletcher: we are in a posture, they are challenging. justice gorsuch: but you said do not touch that because that is not before us. in them to interpretive rule, you do not get a challenge. you get a criminal prosecution against you. >> i disagree with that on a number of levels. i think it would be better for those concerned about administrative power that we acknowledge this is is an interpretive rule. they cannot make something a crime that was not a crime before. it is not a crime to violate the rules. it has been and will always be a crime to violate a statute. the atf is saying we got that wrong before and are fixing it now. and you are right, it would be horribly unfair to prosecute people based on reliance on the agency's past insurance, but that is taken care of by doctrines that ensure no one has been and will be prosecuted for possessing these devices during a time the atf said it was legal. that is not a reason to shackle

the atf for this court to adopt something other than the best reading of the words congress wrote. true, it was 90 years ago, but we think it used capacious language, like function of the trigger, rather than pull the trigger, and added parts that could be used to convert something into a machine gun. they knew americans have a lot of ingenuity and there are a lot of ways to build something that is a machine gun. i do not think you should hesitate from applying the broad language that congress wrote. consistent with the meaning it has always had. >> are you representing on behalf of the government that you are not going to prosecute anyone prior to 2017, anyone who wasn't a felon or disqualified for some other reason? mr. fletcher: atf made very clear that anyone who turned in their bump stock or destroyed it before march 2018 would not face prosecution. as a practical matter, the statute of limitations is five years. in a month, the limitations would be gone.

we have not prosecuted people and if we tried to do it, i think they would have a good defense based on entrapment. >> the back and forth here leads me to believe that at best there might be some ambiguity. the question is, what's the best reading? 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 is not the best reading, correct? mr. fletcher: correct, exactly. justice sotomayer: we have said that as far back as 1824. mr. fletcher: in the emily, exactly. justice sotomayer: i think your position is if anyone is in doubt about this interpretation, not including something that you basically hold in your hand and let the recoil move it back-and-forth, if that is not automatic, then it does not make

any sense that this is not a machine gun. correct? mr. fletcher: that is part of our argument, absolutely. it is not just this device. we cited a number of examples of things people have done to get around the ban on machine guns. excepting some interpretations my friend is offering today would legalize not just bump stocks, but those devices as well. justice sotomayer: one final question. justice barrett said something about she hoped that mr. mitchell would explain why there was a difference in the functioning between the belt and the gun. could you go through that again? i think i understand it, but -- mr. fletcher: as the atf explained, it is possible to do bump firing, meaning the rifle moves back and forth and bumps against your stationary finger. an expert can do that without any assistive device, and you can also do it by hooking your finger into a belt loop or something to hold your finger in place. we do not think those things function automatically.

the definition of automatically is a self-regulating mechanism. that is a bump stop, a device 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 the right direction so the trigger resets and then ensure the rifle moves forward in just the right distance, just the right direction. we think the cycle created is a self regulate in process. it is possible to do the same thing with manual work and expertise, but that's not unusual to say something can be done automatically if you eliminate manual movement that someone like an expert could take. >> may i ask you about mens rea, for prosecuting someone now? what mens rea showing with the government have to make to convict someone? mr. fletcher: the relevant case is staples and the court held you have to be aware of the facts that render your weapon --

>> so even if you are not aware of the legal prohibition, you can be convicted. mr. fletcher: that's right, but that's true of all machine guns. the distinct problem is the one created by the fact the agency was previously saying these were not machine guns. >> that's going to ensnare a lot of people who are not aware of the legal prohibition. mr. fletcher: i don't think so. one of the reasons this is an interpretive rule, the reason was in part the agency knew it had previously been saying something different. it wanted to maximize public notice. justice kavanaugh: why not require the government to also prove that the person knew what they were doing was wrongful, was illegal? mr. fletcher: that is not the understanding this court adopted in staples. we have not briefed that question here, but to the extent that you are concerned, it is not a concern unique to bump

stocks. we mentioned the forced reset trigger. the problem of people coming up with devices that they think get close to the line but don't go over, but in fact go over the line and turn them into machine guns is not new. the problem is the atf used to say something different about these but we think that is taken care of by the doctrine of entrapment. justice kavanaugh: because people will sit down and read the federal register. as they do in the evening for fun. gun owners across the country crack it open with the fire and the dog. mr. fletcher: i take that point. the fact 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. the supreme court is hearing it. i agree, not everyone is going to find out but we could do everything government could possibly do. >> let me ask you about the function of the trigger.

you liken it to a stroke of the key, throw up the dice, a swing of the bat. those are all things people do. a function of the trigger. do people function triggers? maybe somewhere in fifth grade grammar i learned that was an intransitive verb. people don't function things. they may pull, throw things, but they don't function things. it is a very old statute and designed for an obvious problem in the 1930's. al capone. people with a single function of the trigger, that is the thing itself, it was moved once. that is what they wrote. maybe they should have written something better. one might hope they might write something better in the future, but that is the language that we are stuck with. help me. mr. fletcher: that is the language we are stuck with but i don't think it is as narrow as you suggest. it is awkward to talk about a person functioning the trigger, but the reason congress used

that word is congress new there were a lot of ways to activate the trigger and wanted to cover all of them. the reason you know it is referring to what the shooter does is that is the way it has been understood ever since. the interpretation i am giving is the same one carl frederick, president of the nra, and many other officials used at the same time. even if you said we are going to focus just on the trigger, the function of an object is not just some action by the object, it is the action by which it fulfills its purpose. the purpose of the trigger is to accept input by the user. the way you know that is how everyone reacts when someone attaches it to some contraption, like the auto glove that pulls the trigger fast, or you attach a fishing reel where you flip the switch and it spins and turns the trigger over and over. the function of the trigger with those devices is the same because the metal lever is moving back and releasing the hammer every time. everyone, my friend included,

recognizes that is not the function of the trigger. the function of the trigger is the user's flip of the switch or push of the button because that is the thing that allows an act by the user to initiate a firing sequence. >> i take it that the atf to find the curved lever that you pull back as the trigger. could it have defined the bump stock itself at the trigger? mr. fletcher: i'm not sure it could have. we get into this a little bit, a different argument may be than the one you are thinking about. we hypothesize that if you had a machine gun that required you to pull the trigger and also hold down a button, it would still fire automatically and we understand that even though you have to do two things rather than one. what my friend said is may be the button is part of the trigger too. what we said and what i think is true, if you were going to approach the statute that way, you would still land in the same place because it is both the curved metal lever and the front

of the rifle that the user pushes forward to initiate and maintain the firing. >> thank you, counsel. justice alito? justice alito: 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? mr. fletcher: probably yes unless they have gotten some judicial relief. the rule has not been vacated right large, so the government has been clear this is what we think the statute means. justice alito: isn't that disturbing? people in the fifth circuit who have been possessing firearms since the beginning of 2023, let's say they are aware of the fifth circuit's decision they can be criminally prosecuted for doing something the court of

appeals that governs their territory has said is not illegal. mr. fletcher: i will give a practical answer and a doctrinal answer. practically i am not aware of these prosecutions being brought because we recognize there is legal uncertainty. that happens all the time, circuits disagree about what a criminal law means and someone might do something they think is lawful under circuit president that other circuits disagree with and this court ultimately holds is covered by the statute. justice alito: when we speak about the function of an inanimate object, don't we normally look at what that inanimate object does? why isn't the function of a trigger to release the hammer -- let's look at the m-16, the ar-15. why isn't the function of the trigger to release the hammer so that the hammer can swing forward and strike? isn't that the most

straightforward interpretation of this? mr. fletcher: i don't think so, and even if you thought this was true, the three indications you talked about, contemporaneous usage by the president of the nra and others, the application of other types of triggers which everyone agrees are covered but don't function by moving the hammer. one of the devices the fifth circuit has held -- a district court in the fifth circuit has held is permissible -- with a forced reset trigger, the atf zip tied the trigger back and the gun shot multiple bullets. the district court says under my friends interpretation, there are multiple functions of the trigger because the trigger is room -- is wiggling imperceptibly each time and so it is not a machine gun. it is not reasonable to read the statute that opens it up to that evasion and we are seeing evidence of that evasion in the fifth circuit. justice sotomayer: when you are

citing what congresspeople said or what the nra president said or what we said in some of our decisions, because we have used a lingo trigger in describing a machine guns function, you are not using legislative history in the traditional sense. you are pointing to common usage. mr. fletcher: exactly. we are not speculating, not saying bump stocks are machine guns because the president of the nra wanted them to be. justice sotomayer: you are saying it is a term of art. mr. fletcher: exactly, if you published this in the new york times, we would point to it as evidence of contemporary meaning. justice sotomayer: you are pointing to supreme court decisions. mr. fletcher: exactly, as this court does too. it looks to literature, all sorts of sources to understand what speakers think something means when congress use them. these are indications we are right about that. justice kagan: you have talked a lot about the mechanics of these devices.

give us a sense of the effects of these devices. you take two pulls on a semi automatic weapon and a conventional machine gun, how many bullets and how much time? and one of these bump stock weapons, where does that fall on the spectrum between those? mr. fletcher: the rate of a semi automatic weapon is not a fixed number because it depends on the weapon and the skill of the shooter. the theoretical maximum for a very skilled competition shooter with a specialized weapon is 180 bullets a minute. in practice, it is much lower for the vast majority of people. a fully automatic weapon -- justice kagan: how much lower? mr. fletcher: i think more on the order of 60, something like that. there is a lot of variation. the point is, that's the theoretical maximum and it is significantly slower.

a traditional machine gun like issued to the american military shoots in the range of 700 to 950 bullets a minute. there are obviously things from helicopters that shoot much faster, but i think 700 to 900 is the right benchmark. the original bump stock shot 650 rounds a minute and the devices here are represented to shoot between 400 rounds a minute, right in the range with the m-16, the m 14. we acknowledge this is not a rate of fire statute, it is a function statute, but the function was, are you able to fire multiple shots without multiple manual movements? the rate of fire is evidence there are not multiple movements going on here. justice kavanaugh: you have referred a lot to the language of 1934 and that time, but bump stocks did not exist. what are we to make of that? mr. fletcher: you still apply the language that congress wrote

to what didn't exist at the time. none of these workarounds, the fishing reel, auto glove, forced reset trigger, all of them are new. you can draw that congress wrote a statute, chose the word function deliberately because it did not want to focus on triggers that pull, and in 1968 it added parts that convert a normal gun into a machine gun because it recognized that people try to do things to semi automatic machine guns to give them these characteristics, multiple rounds with a single manual action. justice kavanaugh: what is your explanation, may be common sense or some other explanation, for why when this does become an issue, the bush, the obama administration, senator feinstein all say no, bump stocks are not covered? because if they were -- i don't want to use the word clear, but if your position were correct, this is a new thing obviously covered by this old statutory

language, you would expect the bush, the obama administration to say it is covered. they didn't. that is reason for pause. what is your explanation? mr. fletcher: i agree with you, it is worth asking. that's why it is important to put it in context. when the atf first looks at these, the accelerator in 2002 is the bump stock with a spring in the back where you don't have to push forward. the atf ranked a classification letter, something relatively informal that goes to the manufacturer, saying this isn't a machine gun because it doesn't have multiple functions of the trigger. quickly thereafter, the atf corrected that error. they said it is a machine gun. the director of the atf issued a ruling that was consistent on that and the agency has held that position ever since and

that's what we talked about today. it is true that informal classification letters issued between 2007 and 2017, the atf said that nonmechanical bum stocks where you have to push forward were not machine guns because they did not shoot automatically. those are informal, did not include a lot of legal analysis. no one defends the atf interpretation from those letters. the atf said it doesn't have springs or nonmechanical parts so it doesn't make the gun function automatically. even my friend does not use that interpretation. there are things you can add to semi automatic weapon that make it a machine gun, and the fact that no one is saying the primary interpretation -- they did a much more careful examination and got it right. with respect to senator feinstein, the comments from a legislator trying to get

legislation passed and trying to demonstrate the need for that legislation by disagreeing about the scope of current law are not a probative source of the meaning of the words of congress in 1934. justice jackson: can i be clear on this function point? they say that a single function of the trigger, as it appears in the statute, is directing consideration of whether the trigger is moving only once. i think you are saying no, when it says the function of the trigger, it's not how the trigger operates. the function of the trigger is what it achieves. and the function you are saying is by single operation, meaning single movement of the person, you can achieve firing multiple shots without multiple manual movements, that covers the

function of the trigger. is that what you are saying? mr. fletcher: exactly. the thing that makes this clearest is the hypothetical on page 30. imagine someone builds a black box with a button and the shooter pushes the button and by the -- and bullets come out at a high rate. that is a machine gun. in my friend's view, if after the shooter presses the button, the button keeps moving up and down on its own, he says that's not a machine gun because the trigger is functioning each time a shot is fired. we don't think that is plausible. justice jackson: we will ask him about that. euros accounts for automatically more than one shot being in this definition. mr. fletcher:. exactly. . chief justice roberts: thank you, counsel. mr. mitchell? mr. mitchell: the statutory definition of machine gun extends only to weapons that fire more than one shot

automatically by a single function of the trigger. mr. cargill bump stocks found -- fall outside that for one definition. it can fire only one shot per function of the trigger because the trigger must reset after every shot and 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 the firing device must do to cause the trigger 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. there is no automating device, such as a spring or motor, in any of mr. cargill's nonmechanical bum stocks. the process depends entirely on human effort. they must thrust it forward with the non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. none of them are automated. the solicitor general has yet to a lot of -- to identify any component of mr. carpegill's devices that automatically performs any task necessary for gum firing. we ask the court to affirm on that ground.

>> behind the government's argument is the sense that this statute was initially enacted because of what some of the individuals did during prohibition. and there was significant damage from machine guns, carnage, people dying, etc. behind this is the notion that the bump stock does the exact same thing. with that background, why shouldn't we look at a broader definition of function, the one suggested by the government, as opposed to just the narrow function that you suggest? mr. mitchell: the problem with the government's argument is that the phrase single function of the trigger can only be construed grammatically to focus on the trigger's function and

not what the shooter does to the trigger. 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. the solicitor general is trying to replace the word function in the statute with the word pull, and if the statute had said a single pull of the trigger, that phrase would clearly refer to an act taken by the shooter because the trigger cannot pull itself. if the court is going to interpret the statute based on what it says rather than the purposes or the overarching goals of what the 1934 legislature might have been, there is no way it can accept the government's construction of the statute because it is changing the enacted words. >> can i give you a way? the statute says function, as we have all identified. as far as i can tell, the common usage of the word function is not its operational design.

it is not the mechanics of the thing. it is what it achieves, what it is being used for. function is defined as the action for which a person or thing is specifically fitted or used. the actor operation expected of the person or thing. if we take that definition, 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. so weapons with bump stocks have triggers that function in the same way. through a single pull of the trigger or touch of the trigger, you achieve the same result of automatic fire of the weapon. why is that inconsistent with grammar or the way the statute reads? mr. mitchell: the premise of the question is not true.

a single discharge of the trigger produces only one shot. it does not produce a round of automatic fire. the only way you get repeated shots with a bump stock equipped rifle is for the shooter himself to continually undertake manual action by continuously thrusting the rifle forward with his non-shooting hand. justice jackson: but that is not the trigger. he has only touched trigger once. mr. mitchell: he touches the trigger every single time. justice jackson: but the machine is moving. let me ask you a question. i understood this to be a classification statute in the sense that congress is trying to classify certain weapons. if you are right, 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 machine gun and forward pressure here? you are saying there is a distinction being drawn. bump stocks don't fit into this

category because of this distinction and i don't understand why congress would have prohibited one but not the other. mr. mitchell: it matters because the statute turns on whether the bump stock equipped rifle will fire more than one shot automatically. justice jackson: right, in context, the statute is classifying certain weapons for prohibition. for it to make sense, we have to understand why this category of weapons are ones that congress wants to prohibit. you are suggesting congress is prohibiting through this classification weapons in which we hold backwards and automatic fire happens. but we push it forward and automatic fire happens, congress says no. mr. mitchell: there is no automatic fire. justice jackson: sorry, 800 bullets -- the conversation with justice kagan suggested that through a bump stock, you can achieve the same kind of results, in terms of the amount of bullets that are being ejected. mr. mitchell: that is true, it

has a high rate of fire, but it is not automatic. justice jackson: right, but what i am suggesting is the category of prohibition is about the high rate of fire as opposed to the movement of the trigger. if you are right that it's about the movement of the trigger, i am asking why. why would congress want to prohibit certain things based on whether the trigger is moving as opposed to certain things that can achieve this lethal spray of bullets? mr. mitchell: because the statute was written in 1934, 100 years before we had bump stocks. congress drafted the statute to capture the type of weaponry it wanted to prohibit in 1934. >> you said several times in your brief, your interpretation captures a fair number of weapons that nobody had on their radar in 1934. so let me ask you about that and where the line is. it is a gun fires multiple shots at the push of a button or the flip of a switch and keeps

firing -- mr. mitchell: clearly that is a machine gun. justice kagan: ok. if a gun does the same thing, except now it is the push of two buttons? mr. mitchell:

>> the difference is you do not need to hold the button to make the weapon fire. >> if there is a conceivable possibility of using the bump stock devices in a way that does not take advantage of what the devices do and are able to do, the fact that there is that conceivable possibility is what you are resting your entire argument upon. >> the trigger is the device that initiate firing the weapon thing.

a bump stock does not change or alter the trigger. the other hypothetical devices are changing the triggering device by either pushing two buttons instead of one. the trigger is still in the situation the lever and the solicitor general has never tested -- contested that. >> this conversation is totally confusing because i thought your argument depended on what -- that the function of the trigger is what the trigger does mechanically inside the weapon. and therefore whether you have one trigger or threeor two or t0 buttons, it doesn't matter. what matters is what the trigger or triggers do inside the gun. back in the day when it was possible to fire the standard

military issue rifle, m-16 from the 1970's, on automatic, my understanding is you can't even do that anymore. all you can fire at most is a burst of three shots. there are two buttons on the all-time m-16. no, there are three. you have to flip it over from semi automatic to automatic. that is one button. the other button is the polling of the trigger. do i misunderstand your argument? mr. mitchell: not at all, the function of the trigger is what the trigger does to cause the weapon to fire. to determine that, we need to determine what the trigger is. there will be certain types of devices, like this motorized trigger device, where the trigger actually is changed because you are no longer pulling the curved metal lever, instead you are flipping some switch. >> now i am lost.

the trigger is not doing anything, it is the person doing something. it is the person choosing on an m-16 whether they are going to keep the switch on semi automatic or put the switch on automatic and turn the f-16 into a machine gun. on a machine gun, it is not the trigger that does this, it is the pressure of the shooter is using to hold the trigger down that permits it to keep going. mr. mitchell: that's what causes the trigger to function. justice sotomayer: that's what the government is saying, which is you are not looking at what the trigger is doing, you are looking at what the shooter is doing. is he using a force, 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 change

the automatic nature of the firing. mr. mitchell: it still has nothing to do with what the shooter does. the question is what does the trigger do if it functions? if the trigger allows more than one shot to fire per function of the trigger, what is a function of the trigger? justice sotomayer: the trigger you are saying can be a button, so why can't it be the bump stock forcing the recoil motion to go back and forth? mr. mitchell: because the bump stock does not fire a weapon, just a case in which the weapon fires back and forth. >> can you define the bump stock as a trigger, could they have? mr. mitchell: no, because the bump stock is neither necessary nor sufficient for firing. it is the curved lever that causes the weapon to fire. >> it seems to me the spirit of some of the questions you are getting are in the nature of the circumvention principal. ok, maybe in 1934, function of the trigger meant the firing,

the essential thing that causes a weapon to fire. but the high rate of fire that is achievable through bump stocks is effectively the equivalent, and we should take cognizance of that. your thoughts? mr. mitchell: that is not what the statute says. it has nothing to do with the rate of fire. >> the statute does not say a lot of things that you agreed are prohibited under the statute. the statute does not think about buttons and switches. i have to think that if i give you a different hypo that said it was voice activated, you would have to say yes, that is a machine gun too. the statute does not think about that. 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 -- this statute is loaded with anti-circumvention devices. the entire way this statute is

written suggests congress is very aware there could be small adjustments of a weapon that could get around what congress meant to prohibit. in all kinds of ways, you are accepting of that and saying yes, you can circumvent it by that. you can circumvent it with nonconventional triggers, you can circumvent it by all these hypotheticals i have been giving. but you can't circumvent it through this one mechanism. mr. mitchell: i'm not saying that you can circumvent the statute, we are just interpreting the word trigger, which appears in the statutory text. when you are dealing with a motorized trigger device, that's an easy case because that has changed the trigger from a curved metal lever, because the shooter is no longer using that to fire. instead there is a switch that is now triggering the device

because that is the function, turning on the switch, that causes automatic fire to occur because there is a motor moving the curved metal lever back and forth. that is united states against camp. this is an easy case because the bump stock does not change the trigger in any way. justice sotomayer: when you talk about modification pieces, i do not understand your argument. i had taken the united states to always take the position -- i had a case about this when i was a district court judge -- where the question was these flat metal pieces that were mailed internationally to the defendant , where they machine guns? we were all confused because we had this notion of what a machine gun was, and the government argued this metal piece was a machine gun and brought in experts that said, under this statute, anything that could be used to convert a regularly operating semi automatic weapon into one that rapidfire disqualifies.

mr. mitchell: i'm sorry, rapidfire is not under the statute. it is not whether it fires rapidly, it's whether it fires more than one shot automatically by a single function of the trigger. justice jackson: i'm sorry. they said it could, but what we focused on was not whether that metal piece changed the way the trigger operated. maybe you are saying that's wrong, but what i am focused on is your argument seems to rest on the assumption that the function of the trigger is what the trigger does inside the gun. mr. mitchell: that is correct. justice jackson: why is it irrational, wrong, etc., to think of the function of the trigger as what it does to cause the weapon to automatically fire more than one shot? that's what we mean by function of the trigger, which is in the statute, automatically more than one shot. what we are saying is if one

operation causes the trigger -- causes the function of the trigger to make the weapon automatically fire more than one shot, i don't understand why you're reading is preferable to that. wendy, understanding of a machine gun is that it is doing this sort of thing at the end of the day. mr. mitchell: it's because the trigger on the 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 shot, the shooter has to continue to thrust the stock forward. justice jackson: 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 are right that that's the relevant distinction, i guess i need a reason why there is

something inherently so much worse by a situation in which you push it forward rather than put it back, that we can reasonably say that was a particular category congress wanted to prohibit. that's what i am missing. it doesn't make sense to me we are going to identify guns on that purpose and say these are the ones that are prohibited when others that achieve the same results are not. mr. mitchell: because the statute was written in 1934 and congress was not thinking about bump stocks. >> you have said several times that you thrust with your non-trigger hand to fire the gun forward. i understand your friend on the other side to focus on it more as maintaining pressure. which is it? do you hold it harder at certain points than others? or are you actually moving it with thrusting? mr. mitchell: definitely moving your hand back and forth, and mr. fletcher agreed on that

point. where the disagreement comes is mr. fletcher seems to characterize the action of the non-shooting hand 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 pressure from the non-shooting hand. >> tell me if i am wrong, but that means the way the shooter perceives it is by imposing constant forward pressure. not the >> the shooter can do both. it takes a lot of practice to master the art of bump shooting . no person is strong enough to push forward. if they were, bump firing wouldn't happen. for successful bump firing to occur, there needs to be that the 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 that the nonshooting hand.

but the shooter can decide how much he wants to calibrate the pressure in response to the repeated recoils he's getting. 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. to get back to your question -- >> the shooter doesn't make sure the hand is moving back and forth. that's the way the recoil operates. the shooter makes sure he's pushing forward, and then the recoil operates to, in fact, even though the shooter is not experiencing this, is not experiencing this. the shooter is not moving his hand back and forward. >> 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.

to my knowledge, i don't think there's anybody strong enough to keep pushing and forcing it past the recoil energy. mr. chief justice, i don't think the answer matters in the end. even if we accept the characterization that it's constant pressure with the same amount of force, continuously over a sustained, period of time, it's still a manual action. the shooter is the one who is pushing. it's human effort, human exertion, nothing automatic at all about this process. he says this harnesses the recoil energy of the weapon. that is false. with the accelerator there is harnessing, because it has a spring. so there will be certain bump firing devices where you can accurately say that the bump stock harnesses the recoil energy of the weapon, not so with respect to a nonmechanical bump stock. the weapon recoils, nothing is harnessed with respect to the recoil energy, and it is shooter with the nonshooting hand continue to thrust the weapon forward. >> i disagree with you about automatically. can you win solely on function of a trigger? >> absolutely. >> why? >> 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. we could win on automaticly

standing alone. we could win on single function of the trigger. or we could win on both. we respectfully ask the court to rule on both. there's a split on each of the two issues within the question. >> speaking of automatically, can you address the question i asked mr. fletcher about a band bump firing. he said it was different. how do you see them functioning differently? >> they're indistinguishable. when it comes to automatically. everyone involved with the ban that you suggested and also everything offered with the noechanical bump stock, it's a manual action undertaken by the shooter. there is no automating device. mr. fletcher has yet to identify any device in the nonmechanical bump stock that automates any task that is successful for successful bump stocking, it is being done by the shooter. there is the recoil after the shot gets fired, and the shooter, with his own hand, with his own force, exert pressure forward, consistently to make sure the trigger bumps into his finger, this is all manual,

nothing automatic about it. nothing at all. >> can i ask you a variation of the hypothetical, a black box scenario the government puts forward in there? you might be familiar with it. it's in the brief. they say we have 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, box one, the operator pushes the button, and the bullets come out automatically. box two, 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 in order for it to operate, the box is going like so, pushing up. one is machine gun, one is not. same rate of velocity of bullets come out, that's your view? >> the answer depends on what is the trigger. in the united states against

camp, motorized trigger devices are machine guns, and the rationale of that case be extended to this hypothetical. i think the way to think of this, your honor, is there are going to be easy cases in each of the extremes and 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 curve metal. >> right, and your view is what makes it easy or hard is not the thought of mind that, jeez, what makes it easy or hard is distinguishing those two in the real world, like in terms of what is actually happening. you think what makes it easy or hard is just identifying whether the finger is moving because the box is moving or because the person is pushing it down. >> 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 argument the trigger has been dangered.

the doj at no point in this argument has argued bump stocks change the nature of the trigger or change the trippinger at all. there will be harder cases in the middle, such as the forced reset triggers and some of the hypotheticals that we're discussing, the d.c. circuit's opinion, 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 curve metal lever back and forth, that's automatic fire. that's a machine gun, because we now have a new trigger, the switch. it's no longer the curve metal lever.

so can that passional be extended to some of the hypotheticals where we talk about black boxes and oscillating buttons? what is the trigger in is it the button, the motor that's moving the button up and down? it's arguable either way. we don't think the court should resolve that, but for to us take a position on the question, it's all going to depend on whether you can extend the holding of camp to these new situations. the accelerator is a good example to think about. in 2006, when a.t.f. changed the position on the accelerator,

they initially approved that device in 2002. 2006, it changed its mind. 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 carl frederick and say function of the trigger means pull of the trigger. that is not going to work if the accelerator is character islessed as a machine begun. what might work is if there's an argument to extend the united states against camp. does that spring the accelerator and change the nature of the trigger in that's the question that needs to be addressed. if a.t.f. wants to continue to characterize the accelerator as a machine gun, it's going to need to come up with a much better argument than what it offers in 2006. we're not closing the door on that possibility, but we think the rationale that a.t.f. has used is just as faulty for banning nonmechanical bump stocks. >> thank you, counsel. justice thomas? justice thomas: mr. mitchell, i think you would agree that the bump stock accelerates the rate of fire. mr. mitchell: absolutely. why wouldn't you then take the further step of saying it changes the nature of the trigger in doing that? >> because the trigger still has to reset after every single shot. it's not accelerating by changing the trigger, it's accelerating the rate of fire -- >> that's not really what -- >> i'm sorry. >> why wouldn't you say that you have enhanced the triggering mechanism by using the bump stock? >> because it's not changing the triggering mechanism at all. it's simple 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 got bumped is no different than what it would

be if it were a semiautomatic rifle without the bump stock. that's why the government can't win on this single function of the trigger. >> i think the difference is that there may be some who believe, 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. >> what changed is the rate of fire, and it's still one shot per function of the trigger. even though shots are coming out of the barrel a lot faster than they were before, the question is, how many functions are 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. it will remain that way because nothing in the triggering mechanism has changed. >> justice alito? >> can you imagine a legislator thinking we should ban machine guns, but we should not ban bump

stocks? is there any reason why a legislator might reach that judgment? >> 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 legality of these devices as a matter of policy, even while similar weapons, such as the fully automatic machine guns are being banned. whether congress ultimately makes 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 remain legal as a matter of policy. >> why would anybody -- i'm sorry. >> in the field of statutory interpretation, justice scalia 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, this is another church of the holy trinity case. >> i would say it's quite in search of the holy trinity, one of the argument the government is making are certainly in the spirit of holy trinity, to borrow a phase that was used from the holy trinity opinion. i don't think a textuality judge can accept the rationale this being offered by the u.s. government, and they are in their brief making purpose of this argument along the lines of what we saw in church of the holy trinity. >> thank you. >> justice sotomayor? >> why would even a person with arthritis, why would congress think they needed to shoot 400 to 700 or 800 rounds of ammunition under any circumstance? >> you can't -- >> if you don't let a person without arthritis do that, why would you permit a person with arthritis to do it? >> 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, very quickly, who can fire rates that approach fully automatic weapons. so -- >> counsel, you spoke about legislative history, 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, but it is not classic legislative history. it's how people understood a term at the time. that's not legislative history. >> well, it's still legislative history. they're just using it for a purpose. >> well, justice thomas said in mcdonald versus city of chicago that it's perfectly acceptable

to do that, it's being shown how lawmakers use the particular term that's different than what they intended. >> if we're using legislative history to determine the meaning of the statute, which is how i understand your honor's interpretation, and i think that's how mr. fletcher is stating that. >> it's not just that, we've got statements in the house, from legislators in the house, we have statements from legislators in the senate. all of them consistently translate "function of the trigger" to mean a single pull of the trigger. >> and they're all wrong, because the statute also was written to encompass weapons that have push triggers rather than pull triggers. the solicitor general acknowledges this point in her opening brief. >> what it suggests to me is that contrary to what you're saying, they never understood

this to be how the trigger functions, but how the shooter functions. >> i think we should draw the exact opposite inference. proves how unreliable legislative history is as a tool to deserve what the statute -- >> we're going to disagree. >> 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. they say in their brief the statute needs to be read in a way that encompasses fully automatic weapons that have push triggers rather than pull triggers. >> and you agree. >> i agree that function -- >> but the only way you can get there is by looking at what the shooter is doing. >> a weapon can go off without a shooter. a weapon can fall on the floor and go off accidentally with a discharge, the trigger has functioned, even though the shooter hasn't pushed it. what matters under the statute is what the trigger does. and all these examples that we see in the solicitor general's

brief, when they are taking transitive verbs when they say , swing of the bat or stroke of the key or roll of the dice, all of those are verbs that are capable of taking an object. so when you see swing of the bat, there's an unnamed actor in that sentence that is the subject of the verb swing. the bat can't swing itself. it is an inanimate object. the function of the trigger is entirely different. function cannot take an object grammatically. it has to be the subject of functionality, can't being the objection. >> justice kagan? >> those four words are not the entire statute, function of the trigger. it is by the function of the trigger. what is the by? it is shooting presumably a , shooter is there, but, you know, maybe it happened spontaneously, but shooting more than one shot by a single function of the trigger, that's the relevant language, right? shooting more than one shot by the single function of the trigger. and then there's also the automatic. i don't want to ignore that.

but it seems as if you look at the entire phrase, what that means is that congress had, wanted to delink the number of shots that were coming out of a barrel, more than one shot, wanted to delink 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 voice activate the trigger. there's a 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 saying maybe they didn't define the bump stock as the trigger, but 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. >> that's just not the way they wrote the statute. if that's what they were getting at, they should have drafted it better than what they did. it depends on whether more than one shot is coming out by a single function of the trigger. i agree with your honor. 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 the decision for congress to make. it's certainly not a decision for a court or for administrative agency that's charged with implementing instructions of congress. >> i'll tell you, i view myself as a good textualist. i think that's the way we should think about statutes. it's by reading them. but textualism is not inconsistent with common sense. 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 continuous pressure on a conventional machine gun, holding the trigger, or a continuous pressure on one of these devices on the barrel. i can't understand how anybody could think that those two things should be treat differently. >> 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 exists on a semiautomatic rifle simply by adding a bump stock, which is nothing more than a casing that allows the rifle to 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. think of the semiautomatic rifle where someone has a quick trigger finger. that could have a high rate of fire, but it's still one shot per function of the trigger. 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. >> thank you. >> thank you. >> justice gorsuch and kavanaugh? >> in response a lot of the questions you made the point that bump stocks were not around in 1934, and that's 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 shooter's motion? >> 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 seems 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. >> i guess i am asking the opposite. is there any evidence that someone was drawing that distinction? >> between push and pull? >> no, the distinction between the function of the trigger meant something different. >> i'm not aware of that in legislative history. >> are you aware of that anywhere in communication at the time? >> 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 they thought was synonymous with function of the trigger, and that's obviously not the case. >> ok, so no one 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 in america at the time? >> i'm not aware of that, but i don't find that concerning, because -- >> well, as textualist, you have to think about the phrase, not just each word in the phrase. >> that's right. when you look at the phrase function of the trigger, as i was saying earlier, and justice gorsuch made this earlier,

function of the trigger means trigger, we talked about this before, trigger has to be the subject of function, it can't being the object. >> right, 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, which doesn't defeat your argument. i'm not suggesting it defeats your argument, but it would help your argument if people were drawing that distinction. >> it certainly would help. but the phrase, given the way it's written right now, and the impossibility textually of trying to make the trigger into an object of the verb -- >> and no one was drawing the distinction, why would congress have drawn that distinction? your big point, we got to look at 1934, we got to look at what congress wrote, why would congress have drawn that distinction in 1934? >> because they wanted to get the fully automatic weapons who had the push triggers. and if you use pull of the trigger you are not going to get those devices. so they had to say function of the trigger to own expos those forms of weaponry, as long as

the conventional cover push and pull? >> how should it be defined, in your view, to cover bump stocks? in other words, 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? >> i'd have to ask them what else do you want to encompass besides bump stocks? >> just bump stocks. give me a sentence that you think would cover bump stocks. >> i would provide a statutory definition of bump stocks that tracks as closely as possible to nonmechanical devices that mr. cargill has. >> it's not a great statutory language. you got anything better than that? [laughter] >> i think you can say any device, and this may be a little too broad, but you can say any device that is used to accelerate the rate of fire from a semiautomatic weapon, that would probably capture bump stocks. it might capture some other things, but other things would be similar enough to bump stocks that congress would want to ban them as well.

>> back in the state statute, they did that at the time, ok. last question, you haven't made a second amendment or constitutional voidance argument. in your view are bump stocks covered by the second amendment, protected by the second amendment? >> we didn't argue that because courts are generally loathe to decide constitutional questions when there's an easy statutory offering. >> you did not throw it in as constitutional buoyancy. i imagine that was a considered choice. i'm curious what was behind that. >> there's nothing that prevents this court from invoking the constitution canon on the second amendment issue, because there is a question at least whether this falls within the dangerous and unusual weapons cover out. -- carve out. we don't have a position because we didn't brief it, and also dangerous is vague enough that it's just not clear to us what the answer would be. >> thank you. >> justice jackson? >> 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. why couldn't we read the word

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. help me understand why that couldn't be the function of the trigger. in other words, i know, i'm sorry, confusing question. 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 is the movement of the trigger. >> no, not necessarily the movement. >> ok, tell me. >> it's what the trigger does to cause the weapon to fire. >> ok. what the trigger does. >> it is more than just the movement. >> i'm saying what the trigger does, both in this case, in a bump stock case, and in a machine gun case, is to start a chemical reaction that leads to the expulsion of a projectile.

>> there are other devices in the firearm that do that part. what the trigger does -- >> no, but it's like causation, right? it's like standing on the scale. the trigger, the function of it, one could say is to start this chemical reaction. some weapons might do it with a button. some might do it with a pull . do 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 the government is. >> even if you read it that way, i don't see how that wins the

case for the government. >> why not? >> because only one shot is being fired per function. >> no, single function. if i read the -- there's only a single thing that happens. >> right. >> to begin the chemical reaction that expels the bullet. >> that is one bullet, one shot. >> 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. when we put them together, the work of the function of the trigger, i think, could be to start the chemical reaction that then results in the automatic, more than one shot coming out of the gun. why can't i interpret it that way? >> if that were actually happening, then i think you would have a plausible argument for why this is a machine gun. that's not the way it works. >> that's because you're interpreting the statute to say it has to be about the mechanics. >> no. >> what i'm trying to understand is how that's consistent with congress putting modifications in here. >> i'm just saying -- >> can i just change a little bit? 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. because that suggests that congress was not hung up on exactly how this gun operates. we're sweeping in all kinds of things, things that originally weren't designed to work this way at all, right? we're allowing for machine guns to include things that can modify something that didn't operate this way at all into a, into the kind of thing where a chemical reaction kicks if off, and it automatically fires more than one shot. if that is what i am thinking about, then i guess i don't understand your hangup over how this operates mechanistically. >> 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 funds of the trigger. >> all right, i'll look that up. >> just to get back to your earlier question, it's factually

incorrect to say that a function of the trigger automatically starts a 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. >> i understand that's your argument, thank you. >> thank you, counsel. a rebuttal, mr. fletcher? >> thank you, mr. chief justice. i take from my friend's answers today he does not seriously dispute that a rifle with a bump stock does basically the same thing as a machine gun and is basically just as dangerous as a machine gun. but his argument is the words that congress wrote in 1934 just don't cover it because the word 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 to you depart from the plain language. we're asking you to give it its natural meaning. to understand why the statute can be and 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. on the grammar, page 56-a 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. justice kavanaugh, you asked about contemporaneous usage. there's a lot of contemporary usage of people using the term pull of the trigger to be synonymous with function of the trigger. that makes sense if we're talking about what the shooter does. it's 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 the 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 accepts some input by the shooter. justice kagan, you asked a voice-activated trigger.

you could also have one by a swipe screen. they don't have any moving parts. on our understanding, we say is there an act of the shooter that initiated the firing sequence? 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. 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 some of movement. contrary to what my friend said, a bump stock does eliminate manual action the shooter has to take. with a semiautomatic weapon, you have to pull and release the trigger with each hot. 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 release, and then it changes 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 that 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 accelerator, the electric reset assist, the fishing reel and camp, all of the workarounds have to be covered by the statute, because congress wouldn't enact something to such easy evasion. the only way he can say they are covered is by engaging in various understandings of what the trigger is. i think for the accelerator, he suggested maybe the trigger is the spring in the back of the rifle rather than the lever that 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 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 all kinds of devices that could be created in the future that would do the same thing. it enacted and strength into these laws because it did not want members of the public or 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 stock do. as the las vegas shooting vividly illustrated. we think this court should give the words congress wrote their full natural meaning and hold the ban on bump stocks. thank you.they spoke on capitolr

about an hour. >> our first guest is here.