Second Amendment Roundup: Follow ATF into a Political Briar Patch?
The Supreme Court will hear oral arguments next week, on October 8, in Garland v. VanDerStok, the challenge to the radical expansion of the regulatory definition of “firearm” in the Gun Control Act (GCA). Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition passed by Congress in 1968. And both left the non-controversial regulatory definition of “firearm frame or receiver” undisturbed since 1968. But suddenly in 2022 ATF promulgated a Final Rule redefining those terms to include materials, tools, and information that a person with knowledge and skill can use to fabricate a firearm or a frame or receiver.
One of the most hard-hitting amici briefs filed in support of the challengers to the regulation is the brief of the States of West Virginia and 26 other States. ATF, the brief argues, “is a political briar patch because of its rulemaking authority.” That characterization is from a law review article with the parodistic title “Almost Heaven, West Virginia?: The Country Road to Take Firearm Regulation Back Home to Congress and the States.”  That play on words brings together John Denver’s “Take Me Home, Country Roads” with the major question doctrine set forth in West Virginia v. EPA, 142 S. Ct. 2587 (2022). If that rule of law applies to anything, it applies to ATF’s recent the regulatory rampage.
Given the political volatility of the “gun control” issue, Congress has historically been torn between constituents who support the Second Amendment and those who wish to criminalize various forms of acquisition and possession of firearms. Because that the issue is a “major question,” Congress writes gun statutes carefully and narrowly in a manner that leaves nothing to chance. As the States’ Brief says:
Given the sensitivity of this work, one might at least expect ATF to tread carefully before purporting to regulate in unexpected and aggressive new ways. But recently, it hasn’t. ATF has instead seemed determined to stretch the words found in statutes like the GCA and NFA [National Firearm Act] to reach conduct never anticipated by the lawmakers who passed them. This case, concerning ATF’s efforts to regulate gun kits and other forms of private firearms assembly under the guise of calling them “frames or receivers” subject to the GCA, is just the latest example of that effort.
This is not the first, and it won’t be the last, overreach by ATF. As the States’ Brief continues, “many of the Amici States here have been compelled to step in and sue ATF multiple times over the past few years just to return the agency to its actual area of authority.” Thus, “when the Court encounters another ATF regulation offering a purportedly creative solution to a long-standing problem, it should be wary.” The Brief describes “some of the specific machinations ATF has used in the past to get to its desired results—erasing ordinary meaning, stripping words from context, ignoring comments, short-circuiting APA requirements, and blinding itself to the real-world consequences of its own actions.”
Succinctly put, “The rule here overreaches. But the Court need not follow ATF into the briar patch.” Instead of addressing just the specific statutory issue before the Court, the Brief demonstrates how this regulation is only one of four recent ones that reveal ATF’s pattern and practice of usurping “major questions”
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