Second Amendment Roundup: ATF’s Final Rule Implicates the Right to Bear Arms
Getting closer to October 8, when the Supreme Court will hear oral argument in Garland v. VanDerStok, I’d like to address whether ATF’s 2022 Final Rule drastically expanding the meaning of the statutory term “firearm” implicates the Second Amendment. By redefining “firearm” to include unfinished materials, information, jigs, and tools, the supply has dried up for persons freely to obtain what they need to construct self-made firearms. Indeed, that is the purpose of the rule.
No one disputes that the right to keep and bear arms entails the right to acquire them, which presupposes that firearms must be made. As explained in my previous post, the Federal Firearms Act of 1938 was the first federal law to require those engaged in the business of manufacturing firearms to obtain licenses. To date, the Gun Control Act (GCA), passed in 1968, provides no restrictions on a person acquiring materials and making his or her own firearm.
ATF’s commentary to the Final Rule argues that it does not violate the Second Amendment, because “the GCA and this rule do not prohibit individuals from assembling or otherwise making their own firearms from parts for personal use,” nor do they “prohibit[] law-abiding citizens from completing, assembling, or transferring firearms without a license” as long as they are not “engaged in the business.” Â Yet the rule does prevent individuals from “making their own firearms from parts” by purporting to extend the statutory definition of “firearm” to raw material and previously-unrestricted parts that may no longer be bought and sold except through federal firearm licensees.
The Supreme Court in District of Columbia v. Heller did not “cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” ATF’s regulations are not “laws” and have no basis in the laws passed by Congress, which enacted the exclusive definition of “firearm.” The Final Rule impedes the making and acquisition of firearms by imposing new, onerous restrictions, costs, and potential criminal jeopardy.
The commentary quotes the above words from Heller, but those words do not justify the policy argument in the next sentence: “PMFs [privately made firearms], like commercially produced firearms, must be able to be traced through the records of licensees when the PMFs are involved in crimes.” First, as covered in my last post, that a firearm was traced does not indicate that it was used in a crime. Second, a firearm “must be able to be traced” only when, as the GCA provides, it comes from a licensed manufacturer or importer, is distributed by a licensed dealer, and is required to be marked with a serial number. ATF’s contention regarding the need for tracing is not a legal argument, but is purely a policy argument which can only be addressed by Congress.
In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Supreme Court held: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Before looking for possible historical regulations, consider the Court’s longstanding interpretative guide, expressed long ago in Ex parte Bain (1887), that “in the construction of the language of the Constitution . . . we are to place ourselves as nearly as possible in the condition of the men who framed that
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