Cargill Dissent on Bump Stocks Might Just Help Kill Assault Weapon Ban

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AP Photo/Lisa Marie Pane

The majority decision on the Cargill case ended the bump stock ban. We’ve spent a lot of time talking about that decision and what it means, as well as what it doesn’t mean. Seriously, there are some people out there speaking authoritatively on the decision who don’t even know what it says, so we’re happy to make corrections.

Yet in New Jersey, it seems some are paying a bit more attention to Justice Sotomayor’s dissent than the majority’s decision.

There’s a reason for that.

You see, in trying to explain why the majority’s decision was wrong, Sotomayor might well have provided evidence that could sink the state’s assault weapon ban.

Leading the dissenting minority in the 6-3 case of Garland v. Cargill on June 14, Sotomayor wrote about the 2017 Las Vegas mass shooting, in which federal investigators closed down their investigation after concluding a single shooting suspect used multiple firearms equipped with bump stocks to fire more than 1,000 rounds into a crowd in about 10 minutes. Describing the attack, Sotomayor wrote that the Las Vegas shooter carried out the attack “by affixing bump stocks to commonly available, semiautomatic rifles.”
While Sotomayor’s dissenting opinion argued against loosening firearms restrictions, attorney Daniel Schmutter argued in a letter to U.S. District Judge Peter Sheridan that Sotomayor’s remarks could actually bolster the legality of semiautomatic rifles like the AR-15-style rifles the 2017 Las Vegas shooting suspect allegedly used. The majority held in the 2008 U.S. Supreme Court case of D.C. v. Heller that the Second Amendment of the U.S. Constitution specifically upholds the rights of individuals to possess and carry firearms that are in common use for lawful purposes.
Schmutter, writing on behalf of plaintiffs in three separate federal cases challenging New Jersey’s state firearms laws noted the similarity between Sotomayor’s usage of “commonly available” to describe semiautomatic rifles, and the Heller decision’s “common use” phrasing. While lawmakers and litigants have since debated what all falls within this “common use” phrasing concerning firearms access, Schmutter pointed to Sotomayor’s remarks as a powerful indication that many semi-automatic weapons would explicitly come under the protection of the Second Amendment.

Now, I’m not a huge fan of the whole “in common use” argument for what should be legal and what shouldn’t, the truth of the matter is that the term was used in Heller and did say that those that were in common use cannot be banned.

With Sotomayor acknowledging that AR-15s are commonly available, that would suggest they’re in common use. After all, why keep making them if no one is buying them?

This isn’t testimony from the NSSF, which would be labeled as biased testimony anyway. This is a Supreme Court justice writing a dissenting opinion on a case involving a firearm who admits that these weapons are common.

That means a court listening to precedence from these cases has to conclude that things like AR-15s are in common use and that a weapon in common use cannot be subject to a ban based on the Second Amendment.

At least, that’s the theory.

In reality, anti-gun judges have done a wonderful job twisting reality to meet their anti-Second Amendment desires. They’ve long ignored Heller and they’re set to try to find ways to do the same with Bruen. They’ve rejected all the evidence that AR-15s and AKs and all the other so-called assault rifles are in common use. Ignoring a dissenting opinion shouldn’t be that hard.

At least, it shouldn’t be at first.

Sooner or later, a challenge is going to come before someone who isn’t going to play that. Either a constitutionalist at a lower court or the Supreme Court itself. I honestly believe it’s just a matter of time before the Court has to address the issue of assault weapon bans once and for all.

When they do, at least with the Court as it currently stands, we know how this will go down.

And yeah, I think Sotomayor’s dissent will be part of it.

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