By Dave Workman
Editor-in-Chief
A unanimous decision by a three-judge panel in the Fifth U.S. Circuit Court of Appeals has the federal Bureau of Alcohol, Tobacco, Firearms and Explosives scrambling back to the proverbial square one after declaring the Final Rule on receivers was illegal because the agency “attempted to take on the mantle of Congress.”
Writing for the Court, Circuit Judge Kurt D. Engelhardt, a Donald Trump appointee, observed, “Only Congress may make the deliberate and reasoned decision to enact new or modified legislation regarding firearms based on the important policy concerns put forth by ATF and the various amici here.”
Judge Engelhardt was joined by Judges Andrew S. Oldham, who wrote a concurring opinion, and Don Willett. Oldham and Willett are also Trump appointees.
In the ruling, Judge Engelhardt explained that “it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”
“We are elated with this unanimous court ruling,” said Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, which was allowed to intervene in the case, known as VanDerStok v. Garland. “The ATF clearly exceeded its authority. This is a major victory for gun owners and the rule of law.”
He wraps up his 28-page decision noting, “But unless and until Congress so acts to expand or alter the language of the Gun Control Act, ATF must operate within the statutory text’s existing limits. The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law. This it cannot do, especially where criminal liability can—and, according to the Government’s own assertions, will—be broadly imposed without any Congressional input whatsoever. An agency cannot label conduct lawful one day and felonious the next—yet that is exactly what ATF accomplishes through its Final Rule.”
It is Judge Oldham’s concurring opinion which may get even more attention from gun rights activists by discussing what he calls “additional problems with the Final Rule.”
Traditionally, under the “Old Rule,” Judge Oldham recalled, “ATF took the position that a hunk of metal became a federally regulated “frame or receiver” only after it was 80% complete…”
“Then in 2022,” he writes three pages later, “without any direction or authorization from Congress, ATF changed everything:
• ATF eliminated the 80% threshold for unfinished “frames or receivers.” And it replaced that numerical certainty with “I-know-it-when-I-see-it” subjectivity that is evocative of Justice Stewart’s obscenity standard. Under the New Rule, a hunk of metal turns into a federally regulated “frame or receiver” when ATF thinks “it is clearly identifiable as an unfinished component part of a weapon.”
• ATF promulgated a non-exhaustive list of eight factors that its Director may balance in considering whether a hunk of metal constitutes a partially complete or disassembled “frame or receiver”: “[T]he Director may consider any associated [1] templates, [2] jigs, [3] molds, [4] equipment, [5] tools, [6] instructions, [7] guides, or [8] marketing materials that are sold, distributed, or possessed with [or otherwise made available to the purchaser or recipient of] the item or kit.”
The judge makes other points and then wonders, “Why did ATF promulgate a 98-page Final Rule—replete with multiple, non-exhaustive, eight-factor balancing tests and subjective standards evocative of Jacobellis—to replace the Old 80% Rule?”
He admonishes ATF for its professed concerns about unserialized “ghost guns,” observing, “But if that was all ATF cared about, it would just require serialization of all frames and receivers…”
“ATF instead chose to change the meaning of ‘firearm’ so that it can apply to any piece of metal that has been machined beyond its ‘primordial’ state,” Oldham states. “Why?”
He says ATF “mushed together” language from the 1968 Gun Control Act and the 1934 National Firearms Act to create the Final Rule and the result is simply not lawful.
SAF Executive Director Adam Kraut said he was “particularly pleased” with Judge Oldham’s concurring opinion, “because he goes into great detail about the history of the Final Rule, calling it ‘a vague, indeterminate, multi-factor balancing test,’ designed to discourage private citizens from abandoning the American tradition of crafting their own firearms.’
“This victory underscores once again our mission to win firearms freedom, one lawsuit at a time,” Kraut said.
Judge Oldham dissects the rule, concluding, “The Final Rule is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this.”
This was a bad week for the Biden administration and the ATF. In a separate case, a federal judge in Texas also issued a preliminary injunction against ATF’s pistol brace rule. (See related story.)
