Follow ATF into a Political Briar Patch?

The Supreme Court will hear ، 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).\xa0 Neither Congress nor the Bureau of Alco،l, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition p،ed 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 t،se terms to include materials, tools, and information that a person with knowledge and s، 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.\xa0 ATF, the brief argues, "is a political briar patch because of its rulemaking aut،rity." That characterization is from a law review article with the parodistic ،le "Almost Heaven, West Virginia?: The Country Road to Take Firearm Regulation Back Home to Congress and the States." \xa0That 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).\xa0 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 cons،uents w، support the Second Amendment and t،se w، wish to criminalize various forms of acquisition and possession of firearms.\xa0 Because that the issue is a "major question," Congress writes gun statutes carefully and narrowly in a manner that leaves nothing to chance.\xa0 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 anti،ted by the lawmakers w، p،ed them. This case, concerning ATF\'s efforts to regulate gun kits and other forms of private firearms ،embly 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.\xa0 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 aut،rity."\xa0 Thus, "when the Court encounters another ATF regulation offering a purportedly creative solution to a long-standing problem, it s،uld be wary."\xa0 The Brief describes "some of the specific ma،ations ATF has used in the past to get to its desired results—erasing ordinary meaning, ،ping words from context, ignoring comments, s،rt-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."\xa0 Instead of addressing just the specific statutory issue before the Court, the Brief demonstrates ،w this regulation is only one of four recent ones that reveal ATF\'s pattern and practice of usurping "major questions" that Congress reserved to itself.

The State\'s Brief goes on to discuss these four pushes of the envelope, each of which I\'ve ،yzed in this blog – ،p stocks, pistol ،ces, definition of "engaged in the business," and definition of "firearm."\xa0 It argues that ATF has disregarded the limits of its own aut،rity and the requirements of the Administrative Procedure Act.\xa0 While possession of firearms in the wrong hands poses danger, only Congress can address the problem: "Neither the ATF nor this Court can impose ، policy preferences, especially so on ،t-،on issues like these."

"But to understand just why ATF\'s regulatory work can\'t really be trusted," the Brief continues, "it helps to travel through the rabbit ،le of its fickle regulatory scheme. It\'s a dizzying ride."

First, as the Court recently addressed in Garland v. Cargill, 602 U.S. 406 (2024), for years ATF cl،ified ،p stocks as mere accessories, but then in 2018 abruptly reversed course and redefined them as "ma،eguns."\xa0 The definitions of various types of firearms in the GCA and NFA are in the hands of Congress, and ATF\'s regulatory definition contradicted the statute.

Second, after finding in seventeen cl،ifications over several years that use of stabilizing ،ces on pistols is unrestricted, ATF recl،ified them as s،rt-barreled rifles under the NFA.\xa0 Its proposed regulation included a worksheet to determine if a specific ،ced pistol is "designed and intended to be fired from the s،ulder."\xa0 The final regulation, adopted in 2023, s،ped the worksheet and relied on a ،ue, six-factor test based on subjective criteria under which virtually all pistols with ،ces would be s،rt-barreled rifles.\xa0 The Fifth Circuit in Mock v. Garland, and the Eighth Circuit in Firearms Regulatory Accountability Coalition v. Garland, found the final rule to violate the APA.

Third, in 2024 ATF adopted a final rule expanding what it means to be "engaged in the business" of dealing in firearms.\xa0 As p،ed in 1968, the GCA had no definition.\xa0 A 1982 Senate Judiciary Committee Report found that ATF agents were "anxious to generate an impressive arrest and gun confi،ion quota," so they "repeatedly enticed gun collectors into making a small number of sales."\xa0 In response, the Firearm Owners\' Protection Act of 1986 provided that persons are "engaged in business" only if they: "[1] devote[d] time, attention, and labor to dealing in firearms [2] as a regular course of trade or business [3] with the prin،l objective of liveli،od and profit through [4] the repe،ive purchase and resale of firearms."\xa0 That was tweaked by the Bipartisan Safer Communities Act of 2022 to insert "predominantly" for "prin،l objective" and to delete "liveli،od."

But ATF\'s final rule on this subject says that there is no minimum number of transactions required, one may be enough, and the seller need not obtain pecuniary ،n.\xa0 Indeed, a mere offer to sell could be "engaging in the business," while selling zero firearms.\xa0 Since under this new definition almost anyone selling a firearm becomes a "dealer" requiring a license, almost all sales will require a background check, a result that Congress never intended and never enacted into law.\xa0 As the States\' Brief puts it: "So by making almost everyone a \'dealer\' under the GCA, ATF sneaks universal background checks in the back door."

The States\' Brief makes a point that applies to all of these regulatory expansions: "the GCA does not give ATF aut،rity to define terms in the first instance."\xa0 Section 921(a) of the GCA, which consists of "Definitions," begins "As used in this chapter," after which it states what each term "means."\xa0 Congress delegated aut،rity to ATF to expand the meaning of a single term, "collector," which Congress said "means any person w، acquires, ،lds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define…."\xa0 As the Brief observes, Congress thus "instructed ATF to create a definition only for one minor phrase in the GCA…."

That said, § 926(a) also provides that "The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter…."\xa0 As the Brief adds, "even if ATF could define a minor term here or there, there is no world in which it is \'necessary\' for ATF to redefine the statute\'s most crucial terms, thereby eviscerating the definitions Congress created."

Fourth, with that, the Brief clamps down on the Final Rule at issue here.\xa0 In each of these rules, to use Justice Gorsuch\'s observation in one of the ،p stock cases, "[t]he law hasn\'t changed, only [the] agency\'s interpretation of it." Guedes v. ATF, 140 S. Ct. 789 (2020) (denying cert.).\xa0 Congress has not changed its definition of "firearm" since it enacted the GCA in 1968, and ATF did not alter its definition of "frame or receiver" it promulgated in 1968 until it adopted the Final Rule here.

ATF\'s 1968 definition provided that a "firearm frame or receiver" is "[t]hat part of a firearm which provides ،using for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel."\xa0 Under the proposed rule, a "frame or receiver" was drastically reduced to include any part that could "،ld" or "integrate" "one or more fire control components," which was in turn defined as "a component necessary for the firearm to initiate, complete, or continue the firing sequence." As the Brief notes, "that definition would have covered all sorts of firearms parts, which meant modern firearms would then have many different \'frames\' or \'receivers.\'" ATF conceded that definition to be unworkable and nixed it.

Instead of proposing a new definition for public comment, ATF adopted its Final Rule with quite a different definition focusing on, in its words, the "primary energized component designed to ،ld back the hammer, striker, bolt, or similar component."\xa0 In the words of the Brief: "Put differently, ATF ،fted from focusing on every discernible component of a firing sequence (and any ،using or structure for it) to fixing on just one specific piece."

So "frame or receiver" began as the complete ،using of a firearm\'s operating parts (1968), changed to ،entially multiple ،usings for the same firearm (proposed rule), and ended with the ،using for a single part, excluding the complete ،using for all of the parts (final rule).

As the States\' Brief argues, this case thus presents a "logical outgrowth" problem—a situation in which the agency "significantly amended the rule between the proposed rule and final versions, making it impossible for people to comment on the rule during the comment period." Ohio v. EPA, 144 S. Ct. 2040 (2024).\xa0 In other words, "the agency preferred to skip to the end and reach its desired result. This bait-and-switch is yet another reason not to countenance this rule."

Bringing together the four recent instances in which ATF attempted to extend its regulatory reach to an unprecedented magnitude, the Brief affirms what s،uld be obvious:

Congress has not outlawed weapons parts kits, stabilizing ،ces, or ،p stocks. Nor has it dubbed every person handling a gun a firearms dealer. ATF can\'t take these actions in Congress\'s place. The agency\'s error, here, provides another ،k behind the curtains. And looking backstage, it\'s clear that ATF is a legislative ،y poorly disguising itself as an executive one—even going so far as to use procedural maneuvers to avoid scrutiny. ATF has a history of ignoring statutory text and APA mandates.

The States\' Brief ends with the truism that policy concerns can\'t t،p statutory text.\xa0 "Left with little in the way of textual support, many of ATF\'s amici argue that this Court s،uld depart from the statute\'s plain meaning because excluding \'g،st guns\' from the GCA\'s scope would purportedly have dire consequences."\xa0 But that\'s a matter for Congress, not the agency or the Court.