That Law Doesn’t Mean What You Claim It Means
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” wrote Judge Kurt D. Engelhardt for three judges of the Fifth Circuit Court of Appeals in ruling on VanDerStok v. Garland. “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”
Specifically, the court addressed portions of the ATF’s new “frame and receiver” rule which reinterpreted existing law, particularly elements of the Gun Control Act of 1968. The rule would extend the ATF’s reach and allow the government to restrict home construction of firearms in ways that the Biden White House wants as part of a crusade against so-called “ghost guns” but hasn’t been able to get through Congress.
In particular, the new ATF rule redefines firearms terms to incorporate modern devices that work differently than designs that were common when the law was written. The rule also treats unfinished parts that must be drilled, milled, and assembled by hobbyists to become working mechanisms—often called “80 percent receivers”—as if they are completed firearms. It additionally targets parts kits that can be combined with finished frames and receivers to make functioning guns. As I wrote last year, the rule’s language is “clear as mud” in seeking to subject as much activity as possible to regulation.
“The Final Rule is limitless,” wrote concurring Judge Andrew S. Oldham who agreed with the majority “without qualification” but wrote separately because he considered his colleagues insufficiently brutal to the ATF. “It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze.”
That was much the reaction of U.S. District Judge Reed O’Connor who vacated the entire ATF rule in June. The appeals court panel upholds the district court’s findings, though it returns the case to the district “for further consideration of the remedy, considering this Court’s holding on the merits.” That might mean an outcome short of vacating the entirety of the rule, though Oldham’s concurrence suggests he prefers something rather more drastic to slap down the ATF for its presumption.
The ATF Gets an Earful
In fact, none of the Fifth Circuit judges were impressed by the ATF’s arguments.
“Both a ‘frame’ and a ‘receiver’ had set, well-known definitions at the time of the enactment of the GCA in 1968,” the court notes of the ATF’s efforts to extend its remit over unfinished components. “As written, the Final Rule states that the phrase ‘frame or receiver’ includes things that are admittedly not yet frames or receivers but that can easily become frames or receivers—in other words: parts… Such a proposition defies logic: ‘a part cannot be both not yet a receiver and a receiver at the same time.'”
The judges are equally scathing when it comes to the ATF’s efforts to regulate kits used by DIY hobbyists.
“Notably, the [privately made firearms] that play a central role in the Final Rule were not unknown at the time of the GCA’s—or, for that matter, its predecessors’— enactment,” they write, citing “The American Tradition of Self-Made Arms,” by Jospeh G.S. Greenlee, an article published this year in St. Mary’s Law Journal. “And in perfect accord with the historic tradition of at-home gunmaking, Congress made it exceedingly clear when enacting the GCA that ‘this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.'”
“ATF’s Final Rule alters this understanding by adding significant requirements for those engaged in private gun-making activities,” they add.
“The Government argues that ATF has historically regulated parts that are not yet frames or receivers as frames or receivers, thus making the Final Rule a valid extension of past agency practice,” the court continues. “Simply because ATF may have acted outside of its clear statutory limits in the past does not mandate a decision in its favor today.”
That’s doesn’t mean the Biden administration and the ATF have no recourse if they want to further restrict firearms or regulate popular gun-related hobbies.
“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” the court cautions. “But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”
“This is yet another massive victory against ATF and a huge blow to the Biden Administration’s gun control agenda,” commented Cody J. Wisniewski, the Firearms Policy Coalition Action Foundation General Counsel and counsel for plaintiffs. “ATF has no authority to make law, and the Biden Administration cannot circumvent Congress and the rights of the People through federal agency rulemakings–a point the Fifth Circuit just reiterated. We look forward to defending this win and to continuing to deliver additional victories to the People in the future.”
Despite the Fifth Circuit decision, the ATF rule remains in effect while the U.S. Supreme Court decides whether to take up the case, as per an August 8 order by Justice Samuel Alito.
Another Overreach Slapped Down
In a separate but related ruling, another court slapped down the ATF’s effort to redefine pistol braces as shoulder stocks, rendering firearms so equipped as short-barreled rifles under the National Firearms Act (NFA). Braces are intended to help disabled shooters more accurately handle weapons one-handed, but many designs very closely resemble shoulder stocks. That doesn’t matter, noted the court.
“Some form of protest can be expected when constitutional rights are allegedly infringed,” wrote Judge Matthew Kacsmaryk, of the United States District Court for the Northern District of Texas, in acknowledging that many braces are used as stocks by people opposed to stringent firearms regulation. But Kacsmaryk observed that the braces are in “common use” and so enjoy constitutional protection. He added that the proposed rule was not a logical outgrowth of existing law and, in keeping with a recent Fifth Circuit ruling, “must be set aside as unlawful.”
Ultimately, government officials are failing in their efforts to end-run Congress by jamming through restrictive new gun policies as regulatory “reinterpretations” of old statutes. If they want to threaten more people with penalties for owning and using firearms, they’ll have to do so through the hard work of legislating.