Second Amendment Roundup: Supreme Court Decides VanDerStok
On March 26, the Supreme Court decided Bondi v. VanDerStok, holding that ATF’s 2022 regulatory expansion of the definitions of “firearm” and “frame or receiver” is not facially void. The Court read the proceeding as a facial challenge only and offered no opinion on whether the regulation would be valid as applied to specific items. As long as the definitions may be validly applied to at least something, Justice Gorsuch wrote for the majority of seven justices, they are facially valid. Justices Thomas and Alito dissented.
The Gun Control Act (GCA) defines “firearm” in part 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). The ATF rule added to (A) “weapon parts kits” that are “designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” And it added to (B) “a partially complete, disassembled, or nonfunctional frame or receiver.”
According to the Court, “this case does not ask us to resolve whether ATF’s new regulations . . . may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a ‘facial’ pre-enforcement challenge to the agency’s authority to regulate any weapon parts kits or unfinished frames or receivers.”
That characterization is hard to square with plaintiffs’ briefs in the Supreme Court. Indeed, plaintiffs expressly argued that “the Rule is invalid regardless of whether the GCA is read to include only functional frames or receivers” and regardless of the fact that the GCA does cover kits if they “contain[ ] a frame or receiver.” See Pls. Br. 15, 35 (emphasis added). Justice Alito was therefore correct to state in dissent that the Court’s treatment of plaintiffs’ arguments was “unwarranted and extremely unfair.”
Also unfair was the Court’s twisting of a supposed “concession” made by counsel at argument—that they had no “quarrel” with the ATF’s prior practice of regulating certain unregulated frames or receivers that had reached a critical stage of manufacture. But as the argument transcript makes clear, that concession was made with respect to the argument that plaintiffs should still win even if the GCA covers some unfinished frames or receivers—i.e., the argument the Court refused to consider. See Tr. at 59, 84. Whatever the reason, the Court chose to engage only a caricatured version of plaintiffs’ arguments.
The Court noted that some kits “requir[e] substantial effort, specialized expertise, uncommon equipment, and a significant amount of time” before anyone can fire a shot, while others “contain all components necessary” for “a complete pistol” and “can be completed in perhaps half an hour using commonly available tools.” The statutory definition in § 921(a)(3)(A) requires that the object be, first, a “weapon,” and second, it must expel a projectile, be designed to do so, or be readily convertible to do so.
The Polymer80’s “Buy Build Shoot” kit is said to be a “weapon” because it comes with “all of the necessary components to build” a Glock-variant semiautomatic pistol which might be built “in 21 minutes using only ‘common’ tools and instructions found in publicly available YouTube videos.” That makes it capable of being “readily . . . converted to expel a projectile by the action of an explosive.” (That definition is in the statute and did not originate with the regulation.)
The term “weapon” is appropriate, according to the Court, because people “use artifact nouns to refer to unfinished objects—at least
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