Second Amendment Roundup: Textualism and ATF’s Redefinition of “Firearm”
This is my second installment preceding the upcoming October 8 argument in Garland v. VanDerStok, a challenge to the regulatory redefinition of the term “firearm” in the Gun Control Act. By expanding the statutory definition, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) in its 2022 Final Rule purports to criminalize numerous innocent acts that Congress never made illegal.
Until the new rule, a kit with partially-machined raw material that can be fabricated into a firearm was not considered to have reached a stage that it is a “firearm.” To prevent Americans from making their own firearms from such material, which has always been and remains lawful, the bugbear term “ghost guns” was recently coined. In its VanDerStok brief, the government argues that “anyone with basic tools and rudimentary skills” can “assemble a fully functional firearm” from such kits “in as little as twenty minutes.”
As explained in my last post, that is refuted by none other than the former Acting Chief of ATF’s Firearm Technology Branch, Rick Vasquez, who reviewed and approved hundreds of classifications about whether certain items are “firearms.” As he explained in his amicus brief, fabrication of a firearm from these kits is a complex process requiring skill and special tools beyond the capacity of the average person.
In this post I’ll trace the statutory history of the term “firearm” to gain insight into its meaning. The Gun Control Act defines “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon….” 18 U.S.C. § 921(a)(3). An ATF regulation on the books from 1968 to 2022 defined a “frame or receiver” as “that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism,” i.e., the main part of a firearm to which the barrel and stock attach.
ATF’s Final Rule stretches these terms to mean parts, material, jigs, tools, and instructions that constitute neither an actual “firearm” nor a “frame or receiver,” but may be used by a skilled person with proper tools to fabricate these items.
This new regulatory definition of “firearm” obviously conflicts with the definition enacted by Congress. Two cases decided by the Supreme Court this year directly apply. Per Dep’t. of Agriculture Rural Dev. Rural Housing Service v. Kirtz: “When Congress takes the trouble to define the terms it uses, a court must respect its definitions as virtually conclusive.” Congress defined “firearm.” And while Congress did not explicitly define “frame or receiver,” Snyder v. United States teaches that, after analyzing the statutory text, a court may look at “the statutory history, which reinforces that textual analysis.”
Statutory history is a prime focus of the Amicus Curiae Brief of the National Shooting Sports Foundation, which I coauthored with Schaerr Jaffe LLP and NSSF counsel. As the brief details, the statutory history reinforces the textual analysis. I have covered the subject further in “Textualism, the Gun Control Act, and ATF’s Redefinition of ‘Firearm,'” Harvard Journal of Law & Public Policy: Per Curiam, Aug. 27, 2024.
We begin with the Federal Firearms Act of 1938 (“FFA”), 52 Stat. 1250, which defined a firearm as “any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive … or any part or parts of such weapon.” It provided that any person who violated “any of the provisions of this Act or any rules and regulations promulgated hereunder” was subject to fines and imprisonment. It empowered the Secretary of the Treasury to “prescribe such rules and regulations as he dee
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