On March 26, in a 7-2 decision (with Justices Clarence Thomas and Samuel Alito dissenting), the United States Supreme Court upheld a Biden administration gun control rule on what constitutes a “firearm” under 18 U.S.C. § 921(a)(3), the federal Gun Control Act of 1968 (GCA). The case is Bondi v. VanDerStok (formerly, Garland v. VanDerStok), and the Final Rule, published at 87 Fed. Reg. 24652, is entitled “Definition of ‘Frame or Receiver’ and Identification of Firearms.”
During the Biden-Harris administration, ATF, relying on its rule-making authority (“to make rules and regulations as are necessary to carry out” the GCA), expanded upon the terms “firearm” and “frame or receiver” to sweep in new classes of partially complete and nonfunctional frames or receivers and parts kits that contained such items.
The new Rule’s definition of a “firearm” includes “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive;” 27 C.F.R. § 478.11. In deciding whether a kit “may readily be converted” into a working gun, ATF will consider several factors, including the time, ease, expertise, and equipment required to complete a weapon, as well as the availability of other necessary parts. Likewise, the expanded definition of “frame or receiver” covers “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver;” 27 C.F.R. § 478.12. While that definition does not apply until an object has “reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon,” and excludes an “unformed block of metal” or liquid polymer, the Rule otherwise allows the ATF Director to consider extrinsic factors when determining whether an object is a “frame or receiver.”
The main rationale proposed for this change was the rising popularity of privately made firearms (“PMFs”), including those using the popular Polymer 80 unfinished receiver, and its copies, as well as build kits containing such items. Such guns, when made for personal use, are not required by the GCA to have a serial number and may be made using firearm parts kits, standalone frame or receiver parts, and unfinished frames or receivers, all of which were previously not considered “firearms” and thus fell outside the regulatory reach of the ATF. Technological advances, the agency claimed, made it easier for companies to sell such items to unlicensed persons “without maintaining any records or conducting a background check,” leading (so the argument went) to a proliferation of so-called “ghost guns” and “difficult[y] for law enforcement to determine where, by whom, or when they were manufactured, and to whom they were sold or otherwise transferred.”
Under the new Rule, those who made or sold kits or items that fell under these new definitions would be required to comply with the GCA by securing federal licenses, conducting background checks, keeping sales records, and marking their products with serial numbers. Moreover, unserialized firearms, while still lawful for private manufacture and use, must be marked in accordance with the rule’s terms any time they enter the inventory of a Federal Firearm Licensee.
The Rule took effect on August 24, 2022, but the new definitions were almost immediately challenged as invalid under the federal Administrative Procedure Act. The plaintiffs, individual owners and manufacturers and retailers of firearm components, argued that by treating weapon parts kits and parts that could become finished frames and receivers as the equivalent of a “firearm” under the GCA, the ATF acted outside of its statutory jurisdiction. The district court agreed and vacated the Rule in its entirety.
On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed, finding the ATF sought to regulate firearm parts that were not yet “frames or receivers” and parts kits that were not “firearms,” in contravention of Congress’s clear language. The court wrote:
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. 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.
Pending the Fifth Circuit’s decision, the government sought a stay of the district court’s order from the U.S. Supreme Court, which the Court granted, allowing the Biden administration to enforce the Rule in the meantime. Four justices opposed the government’s application, including Neil Gorsuch, who would nevertheless go on to write the majority opinion in the March 26 decision on the merits. What led Gorsuch to this apparent reversal is unclear.
The Supreme Court decided that the ATF’s new Rule was not facially inconsistent with the GCA. This framing of the case as a facial challenge, however, essentially turned the over breadth claim on its head. Rather than consider whether the ATF had exceeded its statutory authority based on the language of the rule, the Court instead asked the question if the there was any permissible application of the rule. A single such application was all that was necessary to save the rule.
The key concept underlying the Court’s decision was the notion of an “artifact noun,” described as “a word for a thing created by humans. Artifact nouns are typically ‘characterized by an intended function,’ rather than by ‘some ineffable “natural essence,”’ and may be used “to refer to unfinished objects – at least when their intended function is clear.” By way of illustration, said the Court, an IKEA flat-pack for a table is often called a “table,” even though “hours of assembly” may be needed, or a manuscript may be called a “novel,” despite it being a work in progress.
Notably, this concept of statutory construction appears to be an entirely new one in American law, as a Westlaw search of “artifact noun” brings up exactly zero prior instances of its use in any published case or even any secondary source.
Yet, according to the Court, “weapon,” “frame,” and “receiver,” are all, given the context of the GCA, artifact nouns. Therefore, those statutory terms can include the objects themselves, as well as iterations of those objects that have not reached a final, usable stage of completion.
The majority explained that on parts kits, the GCA’s §921(a)(3)(A) contains two requirements: a “weapon” must be present, and that weapon must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. Congress, the Court wrote, used “weapon” “as an ordinary speaker might, to embrace some unfinished instruments of combat.” Because the statutory text contemplates that some things short of fully operable firearms qualify as “weapons,” a completely disassembled rifle is still a “weapon,” and, in the same way, a weapon parts kit that “comes with all necessary components” and requires no substantial effort or time, specialized expertise, uncommon equipment or tools to complete is also a “weapon,” as “its intended function as instrument of combat is obvious.” “If Congress had wanted to regulate only operable firearms,” Gorsuch opined, “it could have simply addressed ‘weapons’ that can ‘expel a projectile by the action of an explosive,’” without the references to design or capacity to be readily converted. The fact that it didn’t, the opinion argued, supported the conclusion that a weapons parts kit qualified as a “weapon.”
Using the same reasoning, the majority concluded that the “GCA reaches, and permits ATF to regulate, at least some ‘partially complete’ frames or receivers,” as the terms “frame” and “receiver” were artifact nouns that “sometimes describe not-yet-complete objects.” This interpretation was said to be consistent with the ATF’s prior practice: “Without question, ATF’s new rule seeks to regulate a greater variety of unfinished frames and receivers than the agency has in the past. But it is equally true that, for decades, the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers.”
Further, by stacking one artifact noun on top of another (“weapon” and “frame” or “receiver”), the majority disposed of the arguments that weapon parts kits cannot be “weapons” under the GCA’s definition of a “firearm” because they lack functional frames or receivers, and that the lack of a reference to “readily converted” meant that unfinished frames or receivers were not “frames” or “receivers.”
As to kits, the Court stated that the “statute nowhere says that a ‘weapon’ must have a fully functional frame or receiver,” as it includes any “weapon” that may “readily be converted” to live fire: “a gun that is fully operable, save for a frame missing a single and easily-added screw, would surely fit that description,” the majority reasoned. It added that even if the statute did require a “weapon” to have a fully functional frame or receiver, some weapon parts kits “may fit that description.”
Similarly, on frames and receivers, the GCA language was “frame or receiver of any such weapon,” where, under this ruling, “weapon” included things not yet fit for use, like disassembled guns and parts kits. “[I]f anything, the fact that Congress used one artifact noun (‘weapon’) in subsection (B) to reach some unfinished articles suggests it used two other artifact nouns (‘frame’ and ‘receiver’) in the same way in the same provision,” Gorsuch insisted.
In his dissent, Justice Clarence Thomas dismissed this reliance on “novel linguistic labels” in lieu of traditional statutory interpretation, and “the faulty premise that our standard rules of statutory interpretation do not apply to ‘a word for a thing created by humans.’” In construing statutes, the fact that some people, somewhere, in their casual conversation “might use ‘a word for a thing created by humans’ to discuss unfinished versions of that ‘thing’” was entirely irrelevant, Thomas wrote.
Congress applied expansive language to the subject matter of every subsection in §921(a)(3) except for subsection (B) on frames and receivers, Thomas argued. Thus, subsection (B) could not be broadened by language omitted from it but included in the more expansive text of subsection (A) and accordingly, the terms “frame” and “receiver” did not apply to things that potentially could be but had not been converted into such finished, operable products (as the Fifth Circuit said, “a part cannot be both not yet a receiver and a receiver at the same time”). The majority also erred, Thomas opined, in allowing the ATF to classify objects as frames or receivers based on criteria (“tools, instructions, guides, or marketing materials”) other than the object’s physical characteristics and that were, in fact, completely distinct from the object itself.
Similarly, the “majority’s novel artifact-noun methodology” could not redefine the ordinary meaning of a “weapon” to include any object that was not already a weapon, Thomas continued. A weapons parts kit “is not a weapon until it is converted into an operable gun,” especially as the “weapon” contemplated in §921(a)(3)(A) must have a “frame or receiver” – precisely the part that weapons parts kits do not have. Unlike these kits (“a collection of unfinished parts, screws, and jigs”), a disassembled rifle still has a functioning frame or receiver. Thomas concluded: “Nothing in the GCA suggests that the terms ‘frame’ and ‘receiver’ also include the materials that one could use to create them, or that parts including neither a frame nor a receiver could constitute a ‘weapon’.”
There are, obviously, many problems with the majority decision in VanDerStok.
The Court approached the case as a facial challenge, using the framework that required the challengers to show that “no set of circumstances exists under which the Act would be valid.” This, however, is a concept imported from constitutional challenges to statutes, and its use under APA challenges is not well developed in Supreme Court case law, nor was it top of mind for the plaintiffs in the case. Once the majority concluded that there was at least a single instance of a weapons kit or unfinished frame/receiver that could come under the scope of the Rule, it declined to delineate the boundaries of the Rule with any more clarity and metaphorically washed its hands of the matter.
On the meaning of “weapon,” for instance, the majority admitted that “our reasoning here has its limits.” Weapon parts kits “vary widely both in how complete they come and in how much work is required to finish them,” but nonetheless, “this case does not require us to untangle exactly how far” the new Rule encroaches on items that fail to meet the necessary statutory threshold.
As for unfinished frames and receivers, the majority was similarly vague:
[W]e do not suggest that the GCA reaches, and ATF may regulate, any combination of parts susceptible of conversion into a frame or receiver with sufficient time, tools, and expertise. Like the term “weapon,” the artifact nouns “frame” and “receiver” have their bounds. Some products may be so far from a finished frame or receiver that they cannot fairly be described using those terms. But this case requires us to explore none of that.
Unfortunately, with no clearly-articulated limiting principles, the uncertainty empowers the ATF in its future determinations of what is and isn’t a “firearm,” while creating uncertainty and jeopardy for manufacturers.
Justice Samuel Alito’s dissent centered on the Court’s approach to the case as a facial challenge when the litigation arose in the context of the Administrative Procedures Act, and whether, indeed, the Court was correct in so proceeding given the respondents “never conceded” that their challenge was a facial one, did not address the issue at all in their briefs, and at no point during the oral argument were they asked about that issue. This approach, he felt, was inappropriate when the agency’s lawmaking authority itself was under fire, as it would practically guarantee that the agency prevailed (“it would take an extraordinarily obtuse agency to write a regulation so completely wrong” that there would not be a single instance where it would not be consistent with the statute).
Justice Brett Kavanaugh’s concurring opinion highlighted another issue, of how ordinary citizens are to comply with these uncertain and indeterminate restrictions. An individual or business “acting in good faith might nonetheless have substantial difficulty determining when” weapon parts kits or unfinished frames or receivers qualify as “firearms” under the Rule. “Despite the vagueness of the line, the penalties for violations are significant and can include fines and imprisonment,” he noted. Yet this possibility, Kavanaugh opined, is appropriately contained by the requirement that the government establish the defendant’s “willfulness” in any such prosecutions (the “willfulness” requirement “should help prevent the Government from unfairly penalizing an individual who is not aware that his conduct violates the law”). The concern was amplified with the background check law where the statute punished violations using a lower threshold, but such fears were unlikely to materialize because, Kavanaugh stated, “at oral argument, the Government represented that it would ‘likely’ decline to ‘charge someone’ for a background-check violation in the ‘kind of situation’ where the individual was not aware that he was violating the law.”
This facile rationalization, however, overlooks the burdensome possibility that well-meaning, innocent individuals may still be charged, or subject to adverse licensing proceedings, and takes it on trust that the ATF will not revert to its recent history of enforcing “zero tolerance” policies against firearm businesses and licensees acting in good faith. As NRA-ILA pointed out earlier this year, the agency supposedly targeted only “willful” violations, yet “turned the law on its head by claiming … specified ‘zero tolerance’ violations inherently demonstrated willfulness.”
Justice Thomas highlighted another potentially “staggering” consequence of the ATF’s (and the Court’s) new interpretation holding an object already is what it may be converted into. The ATF could begin regulating AR-15s as “machineguns” due to the possibility that an AR-15’s semiautomatic receiver can “readily be converted” into a fully automatic receiver. The National Firearms Act (NFA) defines “machinegun” as including “the frame or receiver of any such weapon,” where “frame or receiver” has the same meaning as under the GCA. An unmodified AR-15 is a semiautomatic weapon, but it could potentially be converted to a machinegun. In short, Thomas warned, semiautomatic AR-15s “would seem [under this interpretation] to be partially complete, automatic machineguns.”
The majority opinion pooh-poohed fears over this last “unintended consequence” as “misplaced.” The “NFA and the GCA are different statutes passed at different times to address different problems using different language,” it stated, and the Court’s analysis of the GCA “does not begin to suggest that ATF possesses authority to regulate AR-15 receivers as machineguns under the NFA.” If that wasn’t sufficiently convincing, the Court added that the “government represents that AR-15 receivers do not ‘qualify as the receiver of a machinegun’… Nor, the government emphasized, has ATF ever ‘suggested otherwise.’”
Be that as it may, you don’t have to look very far into history to see examples of high-profile gun control activists suggesting this very legal maneuver, including ex-ATF official David Chipman, Biden’s initial, failed nominee to lead ATF.
In any case, recent events made clear to everyday Americans the value of these kinds of assurances of non-prosecution, failures to charge and agency restraint. Just two years ago, for instance, the Committee on Oversight and Government Reform held a hearing, ATF’s Assault on the Second Amendment: When is Enough Enough? (here and here). This examined “how the ATF under the Biden Administration has upended guidance that law-abiding gun owners have relied upon for over a decade, potentially subjecting individuals and small businesses to felony prison sentences and exorbitant fines if they do not comply with a new final rule [on pistol braces],” and “how the ATF in recent years has operated without congressional approval and devoted substantial time and resources to pursue a left-wing agenda targeting lawful gun-owning Americans exercising their Second Amendment rights.”
The cases one witness highlighted included an example where ATF allegedly prosecuted and obtained a conviction for “dealing in machineguns,” where the
“machineguns” were “actually boxes of cut-up, inoperable parts that the ATF had previously approved the importation and sale of. These ‘parts kits’ are routinely sold in open commerce, as ATF’s approval of importation meant they were no longer ‘firearms.’ That is, of course, until the ATF changes its mind on when a firearm is ‘destroyed’ in an unpromulgated shift, with no notification to consumers or the general public…
“As a group,” the witness stated, “American gun owners have been conditioned to be wary of the Bureau of Alcohol, Tobacco, Firearms and Explosives.”
In the final analysis, the Court’s ruling was narrow in terms of what is definitively covered under the Rule’s permissible terms (Polymer 80 type frames and receivers and build kits containing such items). Yet anything else will be left future cases, with potentially serious consequences for those who make a wrong guess and plenty of room for ATF to menace those who venture into unchartered territory.
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