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December 14, 2023

Garland v. VanDerStok

FIREARMS REGULATION

Does the Gun Control Act of 1968 Authorize the Bureau of Alcohol, Tobacco, Firearms and Explosives to Regulate “Ghost Guns”?

Case at a Glance

The Gun Control Act of 1968 requires any manufacturer or dealer of “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a nonlicensee. The act also requires importers and manufacturers to mark firearms with a serial number. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces the Gun Control Act, issued a rule that applies these requirements to manufacturers and dealers of kits that contain easy-to-assemble firearm components, but which are not (yet) operational firearms. 

Garland v. VanDerStok
Docket No 23-852

Argument Date: October 8, 2024  From: The Fifth Circuit

by Steven D Schwinn University of Illinois Chicago School of Law, Chicago, IL

Introduction

The lower courts ruled that the definitions of “firearm” and “frame or receiver” in the Gun Control Act did not encompass gun kits, and that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority under the act in regulating the kits. The Supreme Court, however, allowed the regulation to go into effect pending appeal.

Issue

  1.  Is “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” a “firearm” under the Gun Control Act?
  2. Is “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” a “frame or receiver” under the act?

Facts

The Gun Control Act of 1968 requires those who import, manufacture, or deal in “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a nonlicensee. The act also requires importers and manufacturers to mark firearms with a serial number.

The 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; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). Subsection (B), which covers “the frame or receiver of any such weapon,” ensures that these key structural components of a firearm are separately subject to the recordkeeping, background check, and serial-number requirements in the act, even if they are sold alone. The act does not define the terms “frame” or “receiver,” however.

The act authorizes the attorney general to prescribe “such rules and regulations as are necessary to carry out” the act. 18 U.S.C. § 926(a). The attorney general, in turn, delegated this authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 

Soon after Congress adopted the act, ATF’s predecessor agency promulgated a regulation that defined “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breech-block, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 33 Fed. Reg. 18,555, 18,558 (Dec. 14, 1968). The regulation did not specify that this definition included separate components that, alone, were incomplete or nonfunctional. But through agency guidance, ATF has “long held” that components need not be complete or functional to qualify as a “frame or receiver” under the act. 

More recently, technological advances have allowed companies to sell easy-to-assemble firearm kits that contain separate unassembled firearm components. These kits, widely available online, allow purchasers to assemble a fully operational firearm within minutes. Some manufacturers claimed that these kits were not “firearms” under the act and therefore sold them without complying with the act’s requirements. These firearms, once assembled, are commonly called “ghost guns,” because they lack serial numbers and transfer records, and because individuals can purchase them without a background check. 

In response to the proliferation of ghost guns, ATF promulgated a new rule that refined its definition of “firearm” under the act in two key ways. First, the new rule defined “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.” 27 C.F.R. § 478.11. Second, the new rule also specified that “frame or receiver” under the act includes “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” 27 C.F.R. § 478.12(c). (The new rule explicitly excluded components that “ha[d] not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon,” 27 C.F.R. § 478.12(c), so that it would not apply to components typically purchased in bulk by commercial firearms manufacturers.) 

The rule does not prohibit the manufacture or sale of any firearm to any individual who is lawfully entitled to possess it. It also does not prohibit a person from making their own firearm for their own personal use, and it does not require such a person to mark their homemade firearm with a serial number. Rather, the rule simply requires manufacturers and sellers of firearm parts kits to obtain licenses, mark their products with serial numbers, maintain transfer records, and conduct background checks. These are the same conditions that apply to the commercial sale of fully functional firearms. 

A group of plaintiffs sued, arguing that weapon parts kits did not fall within the act’s definition of “firearm” or “frame or receiver” and that ATF’s new rule therefore violated the act. The district court ruled that the two provisions of the rule violated the act but vacated the entire rule, including other portions of the rule that the plaintiffs did not challenge. The Fifth Circuit Court of Appeals stayed the district court’s vacatur as to the unchallenged portions of the rule pending appeal. The Supreme Court stayed the district court judgment in its entirety. 

The district court then granted two plaintiffs and their customers an injunction pending appeal. The Fifth Circuit narrowed the injunction, but the Court then vacated the injunction in its entirety. 

On the merits, the Fifth Circuit Court of Appeals ruled that the two provisions of the rule violated the act. This appeal followed. 

 

Case Analysis

The government starts by arguing that the rule’s first provision is consistent with the act’s definition of “firearm.” The government says that the act defines “firearm” broadly, and that the rule closely tracks the statutory language. It claims that the rule’s terms “completed,” “assembled,” and “restored” easily fit within the act’s term “converted.” And it contends that the rule’s definition of “readily” “is consistent with both ordinary meaning and relevant precedent.” 

The government argues next that the second provision “correctly clarifies” that the act’s terms “frame[s]” and “receiver[s]” encompass “partially complete, disassembled, or nonfunctional” frames and receivers that “may readily be completed, assembled, restored, or otherwise converted to function” as frames or receivers. The government points out that the act lacks any language that requires a frame or receiver to be “complete, operable, or functional,” and that the plain language of the act therefore includes partially complete components as defined by the rule. 

Finally, the government argues that “[t]he Fifth Circuit’s interpretation would…frustrate the act’s manifest design by transforming its central definition into an invitation to evasion” of the act by selling firearm kits rather than complete and functional firearms. The government says that the Fifth Circuit’s ruling would “recreate” the same problem that Congress sought originally to address in the act: allowing “felons, juveniles, and those seeking guns for criminal purposes” to acquire them easily. The government claims that the Court “has declined to presume that Congress adopted such self-defeating legislation” in other cases under the act, and that it should reject that interpretation here, too. 

The plaintiffs counter that the act’s definition of “firearm” includes only any “weapon” that may be readily converted to a firearm, not any item that may be converted. Because a parts kit is not itself a “weapon,” the plaintiffs contend that a parts kit is not a “firearm” under the act, even if it is readily converted to a firearm. Moreover, the plaintiffs say that the act only encompasses firearms that have a “frame or receiver.” But they assert that a kit that is regulated solely by the firearm-parts-kit provision of the rule will not have a “frame or receiver,” and therefore does not fall within the act’s definition of a “firearm.” 

The plaintiffs argue next that in contrast to the act’s reference to “firearm” (which includes a weapon that may be readily converted into a firearm), the act’s reference to “frame or receiver” does not include an item that may be readily converted into a “frame or receiver.” The plaintiffs contend that the rule, which regulates items that may be readily converted into a “frame or receiver,” exceeds the plain language of the act. 

Finally, the plaintiffs assert that the rule is invalid for other reasons. They say that the rule’s use of the word “readily” is unconstitutionally vague, and, because the act is a criminal statute, the Court should interpret “readily” “against the Government (and against the Rule).” Moreover, they contend that the rule does not serve the government’s interest, because “kits targeted by the Rule are favored by hobbyists, while the vast majority of criminals prefer to get firearms that have been professionally manufactured.” They say that if the government seeks to regulate firearms kits, it must get specific statutory authority from Congress.

Significance

ATF issued its rule in response to a proliferation of ghost guns, their use in crimes, and the bureau’s inability to trace them in recent years. According to the government, in 2017, law enforcement agencies asked ATF to trace about 1,600 ghost guns. By 2021, they asked ATF to trace more than 19,000. Of the 45,240 firearms submitted to ATF without a serial number between 2016 and 2021, “ATF was able to complete only 445 traces to individual purchasers—a success rate of less than one percent.” The government claims that the rule would help ATF regulate and track ghost guns and, presumably, reduce their use in crimes. It says that the approach of the plaintiffs and the lower courts would allow individuals to sidestep the Gun Control Act’s “careful regulatory scheme” by allowing them “to anonymously buy a kit online and assemble a fully functional gun in minutes—no background check, records, or serial number required.” 

The plaintiffs challenge the government’s claim that ATF’s rule would serve the government’s interests. They say that ghost guns “are favored by hobbyists,” and that “the vast majority of criminals prefer to get firearms that have been professionally manufactured.” The plaintiffs also assert that the government’s interpretation of the Gun Control Act—in particular, its reading of “frame or receiver” to include items that may be readily converted into a frame or receiver—could impact the regulation of other firearms, including the popular AR-15. 

Just last term, the Court addressed a similar case on the scope of ATF’s regulatory authority. Garland v. Cargill (Docket No. 22-976) involved a challenge to ATF’s authority to regulate a bump stock as a “machinegun” under the National Firearms Act of 1834. The Court ruled that a bump stock did not fit the definition of a “machinegun,” and that ATF therefore exceeded its authority in regulating bump stocks. 

But that case does not necessarily foretell the result here. For one, the statutory language and challenged regulation are very different in the two cases. Even if the Court adopts a narrow interpretation of the statutory language in this case (as it did in Cargill), there’s still plenty of room for the Court to uphold ATF’s rule regulating ghost guns. Moreover, the Court already vacated the lower courts’ rulings pending appeal. While these vacaturs were preliminary, the Court’s actions may nevertheless predict its ruling on the merits.

One final point. Because the case is statutory, Congress can have the last word. Whatever the Court rules in this case, Congress can amend the Gun Control Act to encompass ghost guns, or not.

Steven D. Schwinn

Professor of law at the University of Illinois Chicago School of Law

Steven D. Schwinn is a professor of law at the University of Illinois Chicago School of Law and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at 312.386.2865 or [email protected].

PREVIEW of United States Supreme Court Cases 50, no. 3 (November 28, 2022): 42–48. © 2022 American Bar Association 

ATTORNEYS FOR THE PARTIES

  • For Petitioners Merrick B. Garland, Attorney General,
    et al. (Elizabeth B. Prelogar, Solicitor General,
    202.514.2217)
  • For Respondents Defense Distributed, Polymer 80, Inc.,
    Second Amendment Foundation, Inc. (Charles Randall
    Flores, 713.364.6640)
  • For Respondents Jennifer VanDerStok, Michael G.
    Andren, Tactical Machining, LLC, and Firearms Policy
    Coalition, Inc. (David H. Thompson, 202.220.9600)

AMICUS BRIEFS

  • In Support of Petitioner Merrick D. Garland
    20 Major Cities, et al. (Lee S. Richards III,
    212.262.6900)
  • American Medical Association, et al. (Michael John
    Dell, 212.715.9129)
  • Constitutional Accountability Center (Brianne Jenna
    Gorod, 202.296.6889)
  • District Attorney for New York County and City of New
    York (Steven Chiajon Wu, 212.335.9326)
  • District of Columbia, New Jersey, Pennsylvania, et al.
    (Caroline Sage Van Zile, 202.724.6609)
  • Frank Blackwell and Bryan Muehlberger (Lee Ross
    Crain, 212.351.2454)
  • Global Action on Gun Violence (Timothy Channing
    Hester, 202.662.6000)
  • Gun Owners for Safety (Robert Martin Radick,
    212.880.9558)
  • Gun Violence Prevention Groups (Kathleen Roberta
    Hartnett, 415.693.2000)
  • Local Government Legal Center, the National
    Association of Counties, the National League Of Cities,
    and the International Municipal Lawyers Association
    (John J. Korzen, 336.758.5832)
  • Major Cities Chiefs Association, Police Executive
    Research Forum, and Current and Former National
    Security Officials, Law Enforcement Officers, and
    Prosecutors (Mary B. McCord, 202.661.6607)
  • Professors and Scholars of Linguistics and Law (Mark
    Christopher Fleming, 617.526.6000)
    Queens County District Attorney’s Office (John M.
    Castellano, 718.286.5801)

In Support of Respondents Jennifer VanDerStok, Michael
G. Andren, Tactical Machining, LLC, and Firearms Policy
Coalition, Inc.

  • California Gun Rights Foundation (Stephen Michael
    Duvernay, 916.447.4900)
  • Citizens Committee for the Right to Keep and Bear
    Arms, et al. (Dan Mark Peterson, 703.352.7276)
  • Firearms Regulatory Accountability Coalition and
    Palmetto State Armory, LLC (Stephen Joseph
    Obermeier, 202.719.7000)
  • Former Acting Chief of ATF Firearms Technology Branch
    Rick Vasquez and Center for Human Liberty (Bradley
    Alan Benbrook, 916.447.4900)
  • Foundation for Moral Law (John Allen Eidsmoe,
    334.262.1245)
    Gun Owners of America, Inc., Gun Owners Foundation,
    Tennessee Firearms Association, and Virginia Citizens
    Defense League (John Issac Harris III, 615.244.6670)
  • National Association for Gun Rights and the National
    Foundation for Gun Rights (David Alan Warrington,
    703.574.1206)
  • National Association of Sporting Goods Wholesalers
    (Erin E. Murphy, 202.742.8900)
  • National Rifle Association of America (Joseph Gary
    Samuel Greenlee, 703.267.1161)
  • National Shooting Sports Foundation, Inc. (H.
    Christopher Bartolomucci, 202.787.1060)
  • West Virginia, Montana, and 25 Other States (Michael
    Ray Williams, 304.558.2021)