The Supreme Court docket will hear oral arguments subsequent week, on October 8, in Garland v. VanDerStok, the problem to the novel enlargement of the regulatory definition of “firearm” within the Gun Management Act (GCA). Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition handed by Congress in 1968. And each left the non-controversial regulatory definition of “firearm body or receiver” undisturbed since 1968. However all of a sudden in 2022 ATF promulgated a Closing Rule redefining these phrases to incorporate supplies, instruments, and knowledge that an individual with data and talent can use to manufacture a firearm or a body or receiver.
One of the crucial hard-hitting amici briefs filed in assist of the challengers to the regulation is the transient of the States of West Virginia and 26 different States. ATF, the transient argues, “is a political briar patch due to its rulemaking authority.” That characterization is from a regulation evaluation article with the parodistic title “Virtually Heaven, West Virginia?: The Nation Highway to Take Firearm Regulation Again Residence to Congress and the States.” That play on phrases brings collectively John Denver’s “Take Me Residence, Nation Roads” with the most important query doctrine set forth in West Virginia v. EPA, 142 S. Ct. 2587 (2022). If that rule of regulation applies to something, it applies to ATF’s latest the regulatory rampage.
Given the political volatility of the “gun management” situation, Congress has traditionally been torn between constituents who assist the Second Modification and people who want to criminalize numerous types of acquisition and possession of firearms. As a result of that the difficulty is a “main query,” Congress writes gun statutes fastidiously and narrowly in a fashion that leaves nothing to likelihood. Because the States’ Temporary says:
Given the sensitivity of this work, one may a minimum of count on ATF to tread fastidiously earlier than purporting to manage in sudden and aggressive new methods. However lately, it hasn’t. ATF has as a substitute appeared decided to stretch the phrases present in statutes just like the GCA and NFA [National Firearm Act] to achieve conduct by no means anticipated by the lawmakers who handed them. This case, regarding ATF’s efforts to manage gun kits and different types of non-public firearms meeting underneath the guise of calling them “frames or receivers” topic to the GCA, is simply the most recent instance of that effort.
This isn’t the primary, and it will not be the final, overreach by ATF. Because the States’ Temporary continues, “lots of the Amici States right here have been compelled to step in and sue ATF a number of occasions over the previous few years simply to return the company to its precise space of authority.” Thus, “when the Court docket encounters one other ATF regulation providing a purportedly inventive answer to a long-standing downside, it must be cautious.” The Temporary describes “a few of the particular machinations ATF has used prior to now to get to its desired outcomes—erasing bizarre that means, stripping phrases from context, ignoring feedback, short-circuiting APA necessities, and blinding itself to the real-world penalties of its personal actions.”
Succinctly put, “The rule right here overreaches. However the Court docket needn’t comply with ATF into the briar patch.” As an alternative of addressing simply the precise statutory situation earlier than the Court docket, the Temporary demonstrates how this regulation is just one of 4 latest ones that reveal ATF’s sample and follow of usurping “main questions” that Congress reserved to itself.
The State’s Temporary goes on to debate these 4 pushes of the envelope, every of which I’ve analyzed on this weblog – bump shares, pistol braces, definition of “engaged within the enterprise,” and definition of “firearm.” It argues that ATF has disregarded the boundaries of its personal authority and the necessities of the Administrative Process Act. Whereas possession of firearms within the improper arms poses hazard, solely Congress can handle the issue: “Neither the ATF nor this Court docket can impose bare coverage preferences, particularly so on hot-button points like these.”
“However to grasp simply why ATF’s regulatory work cannot actually be trusted,” the Temporary continues, “it helps to journey by means of the rabbit gap of its fickle regulatory scheme. It is a dizzying journey.”
First, because the Court docket lately addressed in Garland v. Cargill, 602 U.S. 406 (2024), for years ATF labeled bump shares as mere equipment, however then in 2018 abruptly reversed course and redefined them as “machineguns.” The definitions of assorted sorts of firearms within the GCA and NFA are within the arms of Congress, and ATF’s regulatory definition contradicted the statute.
Second, after discovering in seventeen classifications over a number of years that use of stabilizing braces on pistols is unrestricted, ATF reclassified them as short-barreled rifles underneath the NFA. Its proposed regulation included a worksheet to find out if a selected braced pistol is “designed and supposed to be fired from the shoulder.” The ultimate regulation, adopted in 2023, scrapped the worksheet and relied on a obscure, six-factor check based mostly on subjective standards underneath which just about all pistols with braces could be short-barreled rifles. The Fifth Circuit in Mock v. Garland, and the Eighth Circuit in Firearms Regulatory Accountability Coalition v. Garland, discovered the ultimate rule to violate the APA.
Third, in 2024 ATF adopted a ultimate rule increasing what it means to be “engaged within the enterprise” of dealing in firearms. As handed in 1968, the GCA had no definition. A 1982 Senate Judiciary Committee Report discovered that ATF brokers had been “anxious to generate a formidable arrest and gun confiscation quota,” in order that they “repeatedly enticed gun collectors into making a small variety of gross sales.” In response, the Firearm Homeowners’ Safety Act of 1986 offered that individuals are “engaged in enterprise” provided that they: “[1] commit[d] time, consideration, and labor to dealing in firearms [2] as a daily course of commerce or enterprise [3] with the principal goal of livelihood and revenue by means of [4] the repetitive buy and resale of firearms.” That was tweaked by the Bipartisan Safer Communities Act of 2022 to insert “predominantly” for “principal goal” and to delete “livelihood.”
However ATF’s ultimate rule on this topic says that there isn’t any minimal variety of transactions required, one could also be sufficient, and the vendor needn’t get hold of pecuniary achieve. Certainly, a mere supply to promote could possibly be “partaking within the enterprise,” whereas promoting zero firearms. Since underneath this new definition nearly anybody promoting a firearm turns into a “seller” requiring a license, nearly all gross sales would require a background examine, a consequence that Congress by no means supposed and by no means enacted into regulation. Because the States’ Temporary places it: “So by making nearly everybody a ‘seller’ underneath the GCA, ATF sneaks common background checks within the again door.”
The States’ Temporary makes some extent that applies to all of those regulatory expansions: “the GCA doesn’t give ATF authority to outline phrases within the first occasion.” Part 921(a) of the GCA, which consists of “Definitions,” begins “As used on this chapter,” after which it states what every time period “means.” Congress delegated authority to ATF to develop the that means of a single time period, “collector,” which Congress mentioned “means any one that acquires, holds, or disposes of firearms as curios or relics, because the Lawyer Basic shall by regulation outline….” Because the Temporary observes, Congress thus “instructed ATF to create a definition just for one minor phrase within the GCA….”
That mentioned, § 926(a) additionally gives that “The Lawyer Basic could prescribe solely such guidelines and rules as are needed to hold out the provisions of this chapter….” Because the Temporary provides, “even when ATF may outline a minor time period right here or there, there isn’t any world wherein it’s ‘needed’ for ATF to redefine the statute’s most important phrases, thereby eviscerating the definitions Congress created.”
Fourth, with that, the Temporary clamps down on the Closing Rule at situation right here. In every of those guidelines, to make use of Justice Gorsuch’s commentary in one of many bump inventory instances, “[t]he regulation hasn’t modified, solely [the] company’s interpretation of it.” Guedes v. ATF, 140 S. Ct. 789 (2020) (denying cert.). Congress has not modified its definition of “firearm” because it enacted the GCA in 1968, and ATF didn’t alter its definition of “body or receiver” it promulgated in 1968 till it adopted the Closing Rule right here.
ATF’s 1968 definition offered {that a} “firearm body or receiver” is “[t]hat a part of a firearm which gives housing for the hammer, bolt or breechblock, and firing mechanism, and which is often threaded at its ahead portion to obtain the barrel.” Beneath the proposed rule, a “body or receiver” was drastically diminished to incorporate any half that would “maintain” or “combine” “a number of hearth management parts,” which was in flip outlined as “a element needed for the firearm to provoke, full, or proceed the firing sequence.” Because the Temporary notes, “that definition would have coated all kinds of firearms elements, which meant fashionable firearms would then have many various ‘frames’ or ‘receivers.'” ATF conceded that definition to be unworkable and nixed it.
As an alternative of proposing a brand new definition for public remark, ATF adopted its Closing Rule with fairly a unique definition specializing in, in its phrases, the “main energized element designed to carry again the hammer, striker, bolt, or related element.” Within the phrases of the Temporary: “Put in another way, ATF shifted from specializing in each discernible element of a firing sequence (and any housing or construction for it) to fixing on only one particular piece.”
So “body or receiver” started as the entire housing of a firearm’s working elements (1968), modified to doubtlessly a number of housings for a similar firearm (proposed rule), and ended with the housing for a single half, excluding the entire housing for the entire elements (ultimate rule).
Because the States’ Temporary argues, this case thus presents a “logical outgrowth” downside—a state of affairs wherein the company “considerably amended the rule between the proposed rule and ultimate variations, making it inconceivable for folks to touch upon the rule throughout the remark interval.” Ohio v. EPA, 144 S. Ct. 2040 (2024). In different phrases, “the company most popular to skip to the tip and attain its desired consequence. This bait-and-switch is but one more reason to not countenance this rule.”
Bringing collectively the 4 latest situations wherein ATF tried to increase its regulatory attain to an unprecedented magnitude, the Temporary affirms what must be apparent:
Congress has not outlawed weapons elements kits, stabilizing braces, or bump shares. Nor has it dubbed each particular person dealing with a gun a firearms seller. ATF cannot take these actions in Congress’s place. The company’s error, right here, gives one other peek behind the curtains. And searching backstage, it is clear that ATF is a legislative physique poorly disguising itself as an govt one—even going as far as to make use of procedural maneuvers to keep away from scrutiny. ATF has a historical past of ignoring statutory textual content and APA mandates.
The States’ Temporary ends with the truism that coverage considerations cannot trump statutory textual content. “Left with little in the best way of textual assist, a lot of ATF’s amici argue that this Court docket ought to depart from the statute’s plain that means as a result of excluding ‘ghost weapons’ from the GCA’s scope would purportedly have dire penalties.” However that is a matter for Congress, not the company or the Court docket.