Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule
On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms “firearm” and “firearm frame or receiver.” This is the first of several posts in which I’d like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.
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” – in other words, to main part of the firearm to which the barrel and stock attach.
The Final Rule expanded “firearm” to include “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.” And it redefined “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”
The impetus for these new definitions is the political controversy over “ghost guns,” a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as “80% receivers.” Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.
Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers. Private individuals have always been free to make their own firearms without such federal restrictions. The new definitions have the effect of subjecting hobbyists to federal controls.
The Fifth Circuit held that ATF may not change the definition of “firearm” enacted by Congress and that its redefinition of “frame or receiver” failed to reflect the original, common understanding of that term. It thus ruled the definitions to be beyond ATF’s authority and arbitrary and capricious.
In the Supreme Court, the government begins its defense of the Rule by asserting that so-called “[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes.” Not one of those italicized terms is even close to reality.
For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.
Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he se
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