The Supreme Court is considering whether the Bureau of Alcohol, Tobacco, Firearms and Explosives is right to define guns equipped with bump stocks as machine guns.
The whole sorry spectacle reminded me of the long-running debate about whether to allow television cameras into the Supreme Court to cover oral argument. Court insiders have long commented wryly that, if the cameras were allowed, the public would soon discover just how technical, dry and boring oral arguments really are.
The trouble is that none of the justices was prepared to say that the way to get the right meaning of the statute is to ask its purpose. That’s because the justices, over the last couple of decades, have fallen into the thrall of a truly dysfunctional theory of statutory interpretation, one known as textualism.
Stephen Breyer, now retired, was the last justice to state openly that he believed in the central importance of legislative purpose. His former law clerk, Justice Ketanji Brown Jackson, ought to openly take up that mantle now. She did her best in the oral argument, focusing on the word “function” and claiming that the word should be understood broadly.