JENNIFER VANDERSTOK; MICHAEL G. ANDREN; TACTICAL MACHINING, L.L.C., a limited liability company; FIREARMS POLICY COALITION, INCORPORATED, a nonprofit corporation, Plaintiffs—Appellees, v. MERRICK GARLAND, U.S. Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; STEVEN DETTELBACH, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants—Appellants.
No. 23-10718
United States Court of Appeals for the Fifth Circuit
November 9, 2023
Blackhawk Manufacturing Group, Incorporated, doing business as 80 Percent Arms; Defense Distributed; Second Amendment
Before WILLETT, ENGELHARDT, and OLDHAM, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
It has long been said—correctly—that the law is the expression of legislative will.1 As such, the best evidence of the legislature‘s intent is the carefully chosen words placed purposefully into the text of a statute by our duly-elected representatives. Critically, then, law-making power—the ability to transform policy into real-world obligations—lies solely with the legislative branch.2 Where an executive agency engages in what is, for all intents and purposes, “law-making,” the legislature is deprived of its primary function under our Constitution, and our citizens are robbed of their right to fair representation in government. This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties.
The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature‘s will. Accordingly, for the reasons set forth below, we AFFIRM IN PART and VACATE AND REMAND IN PART the judgment of the district court.
I. Statutory and Regulatory Background
In April of 2022, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) issued a Final Rule in which the
First, a brief history of the regulatory agency under fire here. ATF was created in 1972 as an independent bureau of the U.S. Department of the Treasury.3 The Homeland Security Act of 2002 later transferred ATF to the U.S. Department of Justice, where it remains active today. See
The GCA requires all manufacturers and dealers of firearms to have a federal firearms license; manufacturers and dealers are thus known as “Federal Firearms Licensees” or “FFLs.” When those FFLs sell or transfer “firearms,” they must conduct background checks in most cases, record the firearm transfer, and serialize the firearm. See
The primary method by which the GCA ensures that the manufacture and sale of firearms are regulated as intended is through the imposition of criminal penalties.5 As one example, the GCA generally
The bedrock of the GCA and its plethora of requirements and restrictions is the word “firearm.” The GCA defines a “firearm” as: “(A) any weapon . . . 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.”
ATF‘s 1978 regulatory definition sufficiently captured most firearms of the era. Modern firearms, however, have developed such that many firearms no longer fall within the definition. In the Final Rule, ATF states that “the majority of firearms in the United States” no longer have a clear “frame” or “receiver” that includes all three elements of the prior definition (that is, a hammer, bolt or breechblock, and firing mechanism). 87 Fed. Reg. at 24655. ATF uses the example of an AR-15,6 which does not have a single housing for the bolt (which is part of the “upper assembly”) and the hammer and trigger (which is part of the “lower assembly”). Id. Thus, as several district courts have recently recognized, the lower assembly of the AR-15, taken alone, is likely not covered by federal regulations. See, e.g., United States v. Rowold, 429 F. Supp. 3d 469, 475–76 (N.D. Ohio 2019) (“The language of the regulatory definition in § 478.11 lends itself to only one interpretation: namely, that under the GCA, the receiver of a firearm must be a single unit that holds three, not two, components: 1) the hammer, 2) the bolt or breechblock, and 3) the firing mechanism.”). Likewise, weapons such as Glock semiautomatic pistols, which use a “striker” rather than a “hammer” as a firing mechanism, and the Sig Sauer P320 pistol, which has no one unit containing those three parts, seemingly may not be regulated under the prior GCA-related definitions. 87 Fed. Reg. at 24655.
The Final Rule was also concerned with the rise of privately made firearms (“PMFs”).7 These PMFs, also known colloquially
Notably, the PMFs that play a central role in the Final Rule were not unknown at the time of the GCA‘s—or, for that matter, its predecessors‘—enactment. “Because gunsmithing was a universal need in early America, many early Americans who were professionals in other occupations engaged in gunsmithing as an additional occupation or hobby.” Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 ST. MARY‘S L.J. 35, 66 (2023). The tradition of at-home gun-making predates this nation‘s founding, extends through the revolution, and reaches modern times. See id. at 48 (“During the Revolutionary War, when the British attempted to prevent the Americans from acquiring firearms and ammunition, the Americans needed to build their own arms to survive.”). Considering this long tradition, “[t]he federal government has never required a license to build a firearm for personal use.” Id. at 80. “In fact, there were no restrictions on the manufacture of arms for personal use in America during the seventeenth, eighteenth, or nineteenth centuries.” Id. at 78 (emphasis added). And in perfect accord with the historic tradition of at-home gun-making, Congress made it exceedingly clear when enacting the GCA that “this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Pub. L. 90-618, Title I, § 101, 82 Stat. 1213, 1213 (Oct. 22, 1968). ATF‘s Final Rule alters this understanding by adding significant requirements for those engaged in private gun-making activities.
In response to the observed changes in modern firearm construction, the Final Rule provides (in part) that “[t]he terms ‘frame’ and ‘receiver’ shall include 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, i.e., to house or provide a structure for the primary energized component of a handgun, breech blocking or sealing component of a projectile weapon other than a handgun.” 87 Fed. Reg. at 24739. The Final Rule also supplements the definition of “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 action of an explosive.” Id. at 24728.8 The Final
II. Factual and Procedural Background
On August 11, 2022, the plaintiffs in this case9 filed a petition for review in the Northern District of Texas. The plaintiffs claimed that two portions of the Final Rule, which redefine “frame or receiver” and “firearm,” exceeded ATF‘s congressionally mandated authority. The plaintiffs requested that the court hold unlawful and set aside the Final Rule, and that the court preliminarily and permanently enjoin the Government from enforcing or implementing the Final Rule.
Roughly a month later, the district court issued its first of several preliminary injunctions. In this first injunction, the district court found that ATF‘s new definition of “frame or receiver” is facially unlawful because it included “firearm parts that are not yet frames or receivers” in contravention of Congress‘s clear language in the GCA. VanDerStok v. Garland, 625 F. Supp. 3d 570, 578–79 (N.D. Tex. 2022), opinion clarified, No. 4:22-CV-00691-O, 2022 WL 6081194 (N.D. Tex. Sept. 26, 2022) (emphasis in original). The district court also found that weapon parts kits cannot be regulated by ATF under the GCA because “Congress‘s definition does not cover weapon parts, or aggregations of weapon parts, regardless of whether the parts may be readily assembled into something that may fire a projectile.” Id. at 580 (emphasis in original). Relying on this same logic, the district court subsequently expanded the preliminary injunction and extended similar injunctions to other plaintiffs. The Government timely appealed each of these injunctions.
While those two appeals were pending, the district court granted summary judgment to the plaintiffs and vacated the Final Rule in its entirety. VanDerStok v. Garland, No. 4:22-CV-00691-O, 2023 WL 4539591 (N.D. Tex. June 30, 2023). The logic of the district court‘s order closely tracked its logic at the injunctive stage: the court held that “the Final Rule‘s amended definition of ‘frame or receiver’ does not accord with the ordinary meaning of those terms and is therefore in conflict with the plain statutory language.” Id. at *14. ATF “may not,” the court continued, “properly regulate a component as a ‘frame or receiver’ even after ATF determines that the component in question is not a frame or receiver.” Id. (emphasis in original). Additionally, the court held that because “Congress did not regulate firearm parts as such, let alone aggregations of parts,” ATF had no authority to regulate weapon parts kits. Id. at *17. Holding that vacatur is “the ‘default rule’ for agency action otherwise found to be unlawful,” the court vacated the Final Rule under
The Government promptly filed a notice of appeal, and subsequently filed an emergency motion to stay pending appeal. The district court denied the request for a stay pending appeal but granted a seven-day
This Court considered and denied the Government‘s emergency motion to stay the district court‘s judgment as to the two challenged portions of the Final Rule but granted a stay as to the non-challenged provisions of the rule. VanDerStok v. Garland, No. 23-10718, 2023 WL 4945360 (5th Cir. July 24, 2023). The Government then requested a full stay from the Supreme Court. Without discussion, the Supreme Court stayed the district court‘s order and judgment “insofar as they vacate the [F]inal [R]ule” pending (1) this Court‘s decision and (2) either denial of certiorari thereafter or judgment issued by the Supreme Court after grant of certiorari. Garland v. Vanderstok, No. 23A82, 2023 WL 5023383 (U.S. Aug. 8, 2023).
This Court held oral argument on September 7, 2023. Shortly beforehand, the Government voluntarily dismissed the two appeals relating to the injunctions. Thus, all that remains before this Court now is the appeal of the district court‘s final judgment vacating the Final Rule in its entirety.
III. Standard of Review
“We review a grant of summary judgment de novo, viewing all the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‘s favor.” Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007) (citing Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000)). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
IV. Analysis
The plaintiffs challenged two portions of the Final Rule in the underlying lawsuit: (1) ATF‘s proposed definition of “frame or receiver” including incomplete frames and receivers; and (2) ATF‘s proposed definition of “firearm” including weapon parts kits. We analyze each challenged portion of the Final Rule in turn below, before addressing the appropriate relief should these specific portions of the Final Rule be held unlawful.
At the outset, we must ensure that we look through the proper lens when analyzing ATF‘s actions here.10 “It is axiomatic that an administrative agency‘s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also Clean Water Action v. U.S. Env‘t Prot. Agency, 936 F.3d 308, 313 n.10 (5th Cir. 2019) (“To be sure, agencies, as mere creatures of statute, must point to explicit Congressional authority justifying their decisions.”). In the GCA—the source of ATF‘s capacity to promulgate the Final Rule—Congress delegated authority to ATF through the Attorney General to “prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter.”
How do we know when an agency has exceeded its statutory authority? Simple: the plain language of the statute tells us so. Therefore, “[w]e start, as we always do, with the text.” Sackett v. Env‘t Prot. Agency, 598 U.S. 651, 671 (2023); see also Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012) (“[T]he best evidence of Congress‘s intent is the statutory text.”). “In statutory interpretation disputes, a court‘s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). Here, we read the words of the GCA “in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep‘t of Treasury, 489 U.S. 803, 809 (1989). Only where the statutory text shows that ATF has “clear congressional authorization” to enact a regulation can such a regulation withstand judicial scrutiny. See West Virginia v. Env‘t Prot. Agency, 142 S. Ct. 2587, 2614 (2022) (quoting Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014)). As explained below, we hold that ATF lacked congressional authorization to promulgate the two challenged portions of the Final Rule.
a. ATF‘s proposed definition of “frame or receiver”
The GCA includes as a “firearm” the “frame or receiver” of a weapon.
Because Congress did not define “frame or receiver” in the GCA, the ordinary meaning of the words control. See Bouchikhi v. Holder, 676 F.3d 173, 177 (5th Cir. 2012). Both a “frame” and a “receiver” had set, well-known definitions at the time of the enactment of the GCA in 1968. In 1971, Webster‘s Dictionary defined a “frame” as “the basic unit of a handgun which serves as a mounting for the barrel and operating parts of the arm” and a “receiver” as “the metal frame in which the action of a firearm is fitted and which the breech end of the barrel is attached.” WEBSTER‘S THIRD INTERNATIONAL DICTIONARY 902, 1894 (1971). Similarly, ATF‘s 1978 definition of frame and receiver—the most recent iteration of the definition before the Final Rule‘s proposed change—defined “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward position to receive the barrel.”11 43 Fed. Reg. at
After almost fifty years of uniform regulation, ATF, via the Final Rule, now purports to expand the terms “frame” and “receiver,” as they were understood in 1968, to include changes in firearms in modern times. But the meanings of statutes do not change with the times. See Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020). “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Id. (emphasis added). ATF‘s inclusion now of “partially complete, disassembled, or nonfunctional” frames and receivers materially deviates from past definitions of these words to encompass items that were not originally understood to fall within the ambit of the GCA. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (“[W]ords generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute” because “if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the single, finely wrought and exhaustively considered, procedure the Constitution commands.”) (cleaned up). As such, the proposed definition is an impermissible extension of the statutory text approved by Congress.
A plain reading of the Final Rule demonstrates ATF‘s error. In the GCA‘s definition of “firearm,” the first subsection includes flexible language such as “designed to or may readily be converted to expel a projectile by the action of an explosive.” See
There is also a clear logical flaw in ATF‘s proposal. As written, the Final Rule states that the phrase “frame or receiver”
The Government argues that ATF has historically regulated parts that are not yet frames or receivers as frames or receivers, thus making the Final Rule a valid extension of past agency practice. This argument fails for two reasons. First, as the district court aptly stated, “historical practice does not dictate the interpretation of unambiguous statutory terms.” VanDerStok, 2023 WL 4539591, at *15. Simply because ATF may have acted outside of its clear statutory limits in the past does not mandate a decision in its favor today. Second, the Government‘s current argument regarding the “readily converted” language as it applies to frames and receivers is at odds with its recent arguments in other courts. For example, in its briefing for a case in the Southern District of New York in early 2021, the Government stated that “the ‘designed to’ and ‘readily converted’ language are only present in the first clause of the statutory definition. Therefore, an unfinished frame or receiver does not meet the statutory definition of a ‘firearm’ simply because it is ‘designed to’ or ‘can readily be converted into’ a frame or receiver.” Fed. Defs.’ Mem. of Law in Support of Mot. for Summ. J., Doc. 98 at 4, Syracuse v. ATF, No. 1:20-cv-06885 (S.D.N.Y. Jan. 29, 2021). Clearly, the Government has arbitrarily reversed course since authoring the Syracuse brief, yet it offers no explanation for its new regulatory position. See Acadian Gas Pipeline Sys. v. FERC, 878 F.2d 865, 868 (5th Cir. 1989) (“[A]ny departure from past interpretations of the same regulation must be adequately explained and justified.”). The sharp change in the Government‘s argument over a few short years emphasizes the harm in relying so heavily on an agency‘s historical practice, rather than the unambiguous text of the statute.
Because it clearly conflicts with the plain language of the GCA, the challenged portion of the Final Rule that redefines “frame or receiver” to include partially complete, disassembled, or nonfunctional frames or receivers constitutes unlawful agency action.
b. ATF‘s proposed definition of “firearm”
The Final Rule purports to supplement the GCA‘s definition of “firearm” by including the following language: “The term shall include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted
The district court correctly held that ATF has no authority whatsoever to regulate parts that might be incorporated into a “firearm” simply because Congress explicitly removed such authority when it enacted the GCA. The GCA‘s predecessor statute, the Federal Firearms Act (“FFA”), had specific language that authorized regulation of “any part or parts of” a firearm. See Federal Firearms Act of 1938, Ch. 850, Pub. L. No. 75-785, 52 Stat. 1250, 1250 (1938) (repealed 1968). However, Congress removed this language when it enacted the GCA, replacing “any part or parts” with just “the frame or receiver of any such weapon.” Thus, the GCA does not allow for regulation of all weapon parts; rather, it limits regulation to two specific types of weapon parts.14 The Final Rule ignores this change completely and improperly rewrites and expands the GCA where Congress clearly limited it. See Intel Corp. Inv. Pol‘y Comm. v. Sulyma, 140 S. Ct. 768, 779 (2020) (“When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”) (citation omitted). Again, the legislative will has been expressed, and we are bound to follow it.
Further, Congress has shown that it knows how to regulate “parts” of weapons when it so chooses. For example, section 921(a)(4)(C) of the GCA, in defining a “destructive device” (one of the four subsections of the “firearm” definition), states that such term means “any combination of parts either designed or intended for use in converting any device into any destructive device.”
ATF finds its primary justification for regulating weapon parts kits in the “designed to or may readily be converted to” language in the GCA‘s definition of “firearm.” The Government argues that the statute captures any item or items that may be transformed or changed into a working firearm, based on the dictionary definition of “convert”17 at the time of the GCA‘s enactment. Because weapon parts kits allow individuals to “convert” various parts into an operational firearm, the Government argues, the Final Rule‘s proposed definition falls clearly within the GCA‘s ambit.
But this stretches the words too far. The Government wants the word “convert” to be all-encompassing, such that any process or procedure that could ultimately lead to a finalized firearm can be regulated under the GCA‘s language. The language, however, is much more precise than that. In fact, the Government‘s emphasis on the word “convert” ignores the surrounding words: the GCA does not just regulate anything that can be “converted” (or, to use the Government‘s proposed synonym, “transformed”) into a firearm but rather regulates “any weapon” that “may readily be converted” into a functional firearm. The phrase “may readily be converted”18 cannot
to include any objects that could, if manufacture is completed, become functional at some ill-defined point in the future. This would strip the word “readily”19 of its meaning, revert the GCA to its prior articulation in the FFA, and allow for regulation of weapon parts generally, which, as we have seen, was not Congress’s intent in passing the GCA. Look no further than the words ATF used in the Final Rule’s proposed “firearm” definition: it includes weapon parts kits that “may readily be completed, assembled, restored, or otherwise converted to expel a projectile.” 87 Fed. Reg. at 24728. Reading “converted” in conjunction with the other listed verbs—“completed, assembled, restored”—we can see that the definition itself contemplates less drastic measures than the full transformation actually required by these parts kits. See Hilton v. Sw. Bell Tel. Co., 936 F.2d 823, 828 (5th Cir. 1991) (“When general words follow an enumeration of . . . things, such general words are not to be construed in their widest extent, but are to be held as applying only to . . . things of the same general kind or class as those specifically mentioned.”). The Government’s attempt to use the word “convert” to justify its unprecedented expansion of the GCA thus collapses upon a cursory reading of the text.
The Government responds that courts have long recognized that disassembled, or nonoperational, weapons constitute “firearms” under the GCA, and cites our decision in United States v. Ryles, 988 F.2d 13, 16 (5th Cir. 1993). There, a defendant was in possession of a “disassembled [firearm] in that the barrel was removed from the stock and that it could have been assembled in thirty seconds or less.” Id. We held that because this “disassembled shotgun could have been ‘readily converted’ to an operable firearm,” it constituted a firearm under the GCA. Id. Unlike the firearm in
Consider the long-standing tradition of at-home weapon-making in this country. See Greenlee, supra. We assume Congress was familiar with the relevant historical context when writing the GCA, yet Congress made no clear reference to aggregations of weapon parts or PMFs generally in the text of the GCA. Rather, as noted above, Congress clearly stated that the GCA “is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” 82 Stat. at 1213. Congress also emphasized that “it is not the purpose of [the GCA] to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity.” Id. at 1213–14. ATF’s Final Rule, however, places substantial limits on the well-known and previously unregulated right to “the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Id. at 1213.
Take, for example, an individual who buys a weapon parts kit containing several unfinished parts he later intends to build and adapt into a functional firearm for his personal use. Section 922 of the GCA, which uses the term “firearm” to describe many of the “unlawful acts” contained therein, may place additional burdens on this individual now that ATF has included aggregations of parts in the definition of “firearm.” Parts contained in the kit, which were previously unregulated, could now fall into the Final Rule’s new definitions, such that the individual cannot sell,20 transport to another state,21 or, in some instances, possess the parts at all.22 And key determinations, like which parts are regulated, what stage of manufacture they must be in, and how many together constitute an actual “firearm,” are exceedingly unclear under the Final Rule, such that the individual must guess at what he is and is not allowed to do.23 By expanding the types of items that are considered “firearms,” ATF has cast a wider net than Congress intended: under the Final Rule, the GCA will catch individuals who manufacture or possess not just functional weapons, but even minute weapon parts that might later be manufactured into functional weapons. The Final Rule purports to criminalize such conduct and impose fines, imprisonment, and social stigma on persons who, until the Final Rule’s promulgation, were law-abiding citizens. ATF cannot so transform the GCA to include aspects of the nation’s firearm industry
As the district court succinctly stated, “the Gun Control Act’s precise wording demands precise application.” VanDerStok, 2023 WL 4539591, at *17. Yet ATF’s proposed definition is not only imprecise, ambiguous, and violative of the statutory text, it also legislates. Thus, the challenged portion of the Final Rule that redefines “firearm” to include weapon parts kits constitutes unlawful agency action.
c. Public policy concerns
The Government and amici argue that the challenged portions of the Final Rule must be upheld to promote important public policy interests and carry out the essential purpose of the GCA. They point to serious concerns regarding public safety, the apparent rise in criminal usage of “ghost guns,” and the current difficulties in firearm tracing for law enforcement. Without the Final Rule, they argue, bad actors will use the “substantial loopholes” in the text to completely circumvent the GCA and, ultimately, gut the law entirely.
“However, the fact that later-arising circumstances cause a statute not to function as Congress intended does not expand the congressionally mandated, narrow scope of the agency’s power.” Texas v. United States, 497 F.3d 491, 504 (5th Cir. 2007). Likewise, “an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). Where the statutory text does not support ATF’s proposed alterations, ATF cannot step into Congress’s shoes and rewrite its words, regardless of the good intentions that spurred ATF to act.
As this Court stated in Cargill v. Garland, 57 F.4th 447, 472 (5th Cir. 2023), “it is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress.” Id. While the policy goals behind the Final Rule may be laudable, neither ATF nor this Court may, on its own prerogative, carry out such goals. That heavy burden instead falls squarely on Congress. See Biden v. Nebraska, 143 S. Ct. 2355, 2372 (2023) (“The question here is not whether something should be done; it is who has the authority to do it.”). “If judges could add to, remodel, update, or detract from old statutory terms . . . we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.” Bostock, 140 S. Ct. at 1738. Any “loopholes” in the law must be filled by Congress, not by ATF, and not by this Court. See Cargill, 57 F.4th at 461 (“Perhaps Congress’s choice of words was prudent, or perhaps it was not. That is not for us to decide.”).
Our concern for strict adherence to statutory text is especially heightened
d. The remedy
We turn now to the appropriate remedy. The Government argues that the district court’s universal vacatur of the entire Final Rule (i.e., not just the two challenged portions) was overbroad, regardless of the merits of the case. While this Court’s precedent generally sanctions vacatur under the APA,27 we VACATE the district court’s vacatur order and REMAND to the
V. Conclusion
ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to “do something” with respect to gun control.28 But 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. 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. 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. Accordingly, the judgment of the district court is AFFIRMED to the extent it holds unlawful the two challenged portions of the Final Rule, and VACATED and REMANDED as to the remedy.
ANDREW S. OLDHAM, Circuit Judge, concurring:
I join my esteemed colleagues’ majority opinion without qualification. I write only to explore additional problems with the Final Rule promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24652 (Apr. 26, 2022) (“Final Rule”). Part I provides additional background. Part II discusses ATF’s unlawful conflation of two fundamentally different statutory regimes. Part III addresses the weapon parts kit provision. And Part IV considers the unfinished frame or receiver provision.
I.
ATF’s overarching goal in the Final Rule is to replace a clear, bright-line rule with a vague, indeterminate, multi-factor balancing test. ATF’s rationale: The new uncertainty will act like a Sword of Damocles hanging over the heads of American gun owners. Private gunmaking is steeped in history and tradition, dating back to long before the Founding. Millions of law-abiding Americans work on gun frames and receivers every year. In those pursuits, law-abiding Americans (and the law-abiding gun companies that serve them) rely on longstanding regulatory certainty to avoid falling afoul of federal gun laws. But if ATF can destroy that certainty, it hopes law-abiding Americans will abandon tradition rather than risk the ruinous felony prosecutions that come with violating the new, nebulous, impossible-to-predict Final Rule.
OLD RULE (A.K.A. 80% RULE)
Let’s start with the Old Rule. Since 1968, Congress has defined the word “firearm” to mean “any weapon (including a
The Old Rule even came with numerical certainty. In longstanding regulatory guidance, ATF took the position that a hunk of metal became a federally regulated “frame or receiver” only after it was 80% complete: “ATF has long held that items such as receiver blanks, ‘castings’ or ‘machined bodies’ in which the fire-control cavity area is completely solid and un-machined have not reached the ‘stage of manufacture’ which would result in the classification of a firearm [under the 1968 Old Rule].” ATF, Are 80% or “Unfinished” Receivers Illegal?, https://perma.cc/QX2X-8UHQ (last reviewed Apr. 6, 2020). The uninitiated might wonder what constitutes an unmachined receiver blank or solid fire-control area. So ATF helpfully provided pictures. Here are ATF’s Old Rule pictures for an AR-15’s frame or receiver:
For decades, millions of Americans have lawfully purchased pieces of metal like those silver ones and worked on them in garages and workshops across the country. Such homemade firearms have a rich history and tradition, dating back to the Founding. See, e.g., Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 ST. MARY’S L.J. 35, 45–71 (2023). So the Old Rule allowed Americans to purchase the silver pieces of metal, to machine the final 20% of the metal in their homes or garages, and thus to make 100%-complete receivers. See ROA.228–44 (ATF’s pre-2022 Old Rule classification letters on partially complete frames and receivers). An enthusiast or amateur gunsmith might mill the fire-control area with a drill press so the receiver could hold a trigger assembly. And the enthusiast or amateur gunsmith might drill three holes through the receiver to hold the safety selector, trigger, and hammer pins. And voila: the modern analogue to the homemade rifle Daniel Boone’s father gave him when he was 12. Greenlee, supra, at 69.
NEW RULE (A.K.A. FINAL RULE)
Congress has done nothing to change the statutory definition of “firearm” or “frame or receiver” since 1968.2 And for 54 years, the regulatory text stayed the same too. Then in 2022, 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. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). 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.” Final Rule, 87 Fed. Reg. at 24728 (emphasis added).
- 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.” Id. at 24739. So the silver pieces of metal in the pictures above are now federally controlled firearms, so long as they are sold with a jig, template, or other item useful in finishing the receiver. See ibid. - ATF promulgated a non-exhaustive list of eight factors that its Director may balance in considering whether a hunk of metal can be “readily” converted to a “frame or receiver”: “(1) Time, i.e., how long it takes to finish the process; (2) Ease, i.e., how difficult it is to do so; (3) Expertise, i.e., what knowledge and skills are required; (4) Equipment, i.e., what tools are required; (5) Parts availability, i.e., whether additional parts are required, and how easily they can be obtained; (6) Expense, i.e., how much it costs; (7) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and (8) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.” Id. at 24735.
- And ATF changed the statutory definition of firearm to include “weapon parts kit[s].” Id. at 24727–28. Such a “kit” consists of gun parts. And ATF concedes that none of those parts is a “firearm” under federal law. Still, ATF says that a collection of parts is “firearm” if ATF, in its wisdom and its subjective judgment, determines the parts look like the building blocks of a firearm. Id. at 24689 (weapon parts kits are firearms if they are “clearly identifiable” as such).
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? ATF says its concern is so-called “ghost guns”: Frames and receivers finished in private homes and garages do not have serial numbers, and that makes it difficult for the Government to track the homemade guns. Id. at 24652. (Hence the Government’s “ghostly” moniker.) But if that was all ATF cared about, it would just require serialization of all frames and receivers—even those (like the silver pieces of metal pictured above) that are only 80% complete. See
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. Why? ATF wants the “flexibility” to regulate unformed, unfinished pieces of metal when it, in its judgment, thinks regulation is “necessary.” Id. at 24669. And ATF wants to “deter” people from relying on “a minimum percentage of completeness (e.g., ‘80.1%’).” Id. at 24686. So it deleted the Old 80% Rule and replaced it with new, indeterminate, multi-factor balancing, and eye-of-the-beholder standards. But it never pointed to a single homemade gun that escaped regulation under the Old Rule but would stay out of criminals’ hands under the New Rule.
II.
ATF’s foundational legal error is that it conflated two very different statutes: the Gun Control Act of 1968 and the National Firearms Act of 1934. Those two statutes give ATF very different powers to regulate
I first (A) explain the statutory conflation. Then I (B) explain how ATF exploited that conflation to generate its multi-factor balancing tests.
A.
First, the statutory conflation. As the majority notes, see ante n.16, ATF’s Final Rule repeatedly uses the word “restored”:
Firearm . . . . The term shall 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.
. . .
Partially complete, disassembled, or nonfunctional frame or receiver. The terms “frame” and “receiver” shall include 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.
Final Rule, 87 Fed. Reg. at 24735, 24739 (emphasis added).
This is unlawful because (1) ATF took the word “restored” from a different statute with a very different scope and meaning. And (2) ATF cannot defend that choice by pretending that the relevant statute fairly includes the word “restored.”
1.
First, the two very different gun control statutes. The first is the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (“GCA”). The GCA was Congress’s response to the assassination of President Kennedy. According to the FBI, Lee Harvey Oswald used the pseudonym “A. Hidell” to purchase a 6.5x52mm Carcano bolt-action hunting rifle from a mail-order advertisement in the back of American Rifleman magazine. VINCENT BUGLIOSI, RECLAIMING HISTORY: THE ASSASSINATION OF JOHN F. KENNEDY 200 (2007). “A. Hidell” mailed a money order for $21.45 ($19.95 for the rifle and $1.50 for postage) and later picked up the rifle from P.O. Box 2915 in Dallas, Texas. Ibid. Congress’s response in the GCA was, inter alia, to prohibit mail-order weapons and to impose identification requirements that prohibit pseudonymous purchases. See Interstate Shipment of Firearms: Hearings on S. 1975 and S. 2345 Before S. Comm. on Com., 88th Cong. (1964). The GCA regulates interstate transactions involving any firearm—including common bolt-action hunting rifles.3
ATF promulgated the Final Rule under the GCA—not the NFA. See, e.g., Notice of Proposed Rulemaking, Definition of “Frame or Receiver” and Identification of Firearms, 86 Fed. Reg. 27720, 27726–27 (May 21, 2021) (“NPRM”) (citing as statutory basis the terms “firearm,” “frame,” and “receiver” in GCA); Final Rule, 87 Fed. Reg. at 24734 (same). That makes some sense because ATF wants the Final Rule to apply to every firearm, every frame, and every receiver (the GCA’s scope)—not just to NFA items like machine guns.
The problem is that Congress chose to use the word “restored” only in the NFA and not in the GCA. “That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another.” Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015); see also Russello v. United States, 464 U.S. 16, 23 (1983). When Congress defined NFA weapons like machine guns, it chose to reach weapons that could be “restored” to be machine guns. See, e.g.,
At oral argument, ATF’s counsel conceded the agency took the word “restored” from the NFA and inserted it into a GCA regulation. See Oral Arg. at 0:30–8:00. Counsel defended conflating the two statutes by arguing that “restored” (used only in the NFA) is close enough to the text used in the GCA (“converted”) that the Government could mush together the two statutes and promulgate a Final Rule that uses both terms interchangeably.
This argument fails for two reasons. First, the ordinary meaning of “converted” is not the same as “restored.” To “convert” means to change something from one form to a new, different form: “To alter, as a vessel or firearm, so as to change from one class or type to another.” Convert, WEBSTER’S NEW INTERNATIONAL DICTIONARY 583 (2d ed. 1934; 1950) (“WEBSTER’S SECOND”) (emphasis added). To “restore,” by contrast, means to bring something back to its original form: “To bring back to, or put back into, the former or original state; to repair; to renew; specif. [] To rebuild; reconstruct.” Restore, WEBSTER’S SECOND at 2125. Thus, a firearm A can be converted to a new, different B. Or an old, broken firearm A can be restored to new, functional A. But it makes no sense to say A is restored to B, nor does it make sense to say A is converted to A.6
For example, a semi-automatic rifle like an AR-15 can be “converted” to function as a fully automatic machine gun. Such conversions can be accomplished by filing away internal parts of a semi-automatic firearm. See Staples v. United States, 511 U.S. 600, 603 (1994). Or by replacing them. See Roe v. Dettelbach, 59 F.4th 255, 257 (7th Cir. 2023). But either way, the firearm is “converted” from one thing (A, a semi-automatic weapon) into a different class or type of firearm (B, a fully automatic weapon). And either way, the AR-15 is not “restored” into a machine gun because its original state (semi-automatic) was not an old version of the renewed one (fully automatic). Cf. United States v. TRW Rifle 7.62x51mm Caliber, One Model 14 Serial 593006, 447 F.3d 686, 691 (9th Cir. 2006) (“The United States argues, and we agree, that the ‘former or original state’ of the rifle refers to the essential definition of a machinegun, that is whether it was ever capable of firing automatically more than one shot, without manual reloading, by a single function of the trigger.”).
Consider another example. If a lifelong Anglican decides to become Roman Catholic, a “reasonable person, conversant with the relevant social and linguistic conventions” might say that she “converted” from A (Anglicanism) to B (Catholicism). Cf. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2392–93 (2003). But no one would say
the lifelong Anglican “restored” her new Catholic faith.7 In faith
Thus, in the context of ordinary GCA firearms, like bolt-action hunting rifles, Congress used the word “converted.” In the context of NFA machine guns, Congress used the word “restored.” That means the GCA covers firearms (B) and things (A) that can be readily converted into firearms (B). Whereas the NFA concerns firearms that start as machine guns (A) and can be restored to functioning machine guns (A).
B.
All of this matters because the central dispute in this case is how far back ATF can reach to regulate the A that can be converted to B. Everyone agrees ATF can regulate the gun itself, B. But how far back in the manufacturing process of the gun B can ATF reach to regulate things A that can be theoretically converted into guns? ATF concedes that it cannot reach all the way back to “unformed blocks of metal” or metal in its “primoradial state.” Final Rule, 87 Fed. Reg. at 24663. So primordial ooze is not A. But anything more refined than that is subject to the Final Rule‘s multi-factor balancing tests and eye-of-the-beholder standards.
The GCA, however, says nothing about primordial ooze, unformed blocks of metal, or any of ATF‘s various indeterminate standards for A. Rather, the GCA says ATF can regulate A as a “firearm” only if A can “readily be converted” into a firearm B.
Consider (1) how courts distinguish “readily be converted” from “readily restored.” Then consider (2) how ATF ignores that distinction. The result is (3) a fatally vague Final Rule.
1.
Let‘s start with ordinary GCA firearms. When it comes to ordinary firearms, like bolt-action hunting rifles, courts have interpreted “readily be converted” to mean minimal effort—something like “three to twelve minutes” with a drill and no special skills. See, e.g., United States v. 16,179 Molso Italian .22 Caliber Winler Derringer Convertible Starter Guns, 443 F.2d 463, 465 (2d Cir. 1971). The GCA standard arises with some frequency when criminal defendants are charged with possessing gun parts or inoperable guns that nonetheless count as firearms because they can “readily be converted” to fire. See ibid. For example, this disassembled Tec-9 handgun is still a “firearm“:
United States v. Morales, 280 F. Supp. 2d 262, 277 (S.D.N.Y. 2003). That is because it might be reassembled “in about five seconds.” Id. at 272. Similarly, an inoperable shotgun can “readily be converted” to GCA firearm if it only requires “about fifteen to twenty minutes” of manipulation. United States v. Reed, 114 F.3d 1053, 1056 (10th Cir. 1997). And a starter gun—which is expressly mentioned in the text of
NFA weapons like machine guns are a different story. Recall that machine guns face an entirely different and more onerous regulatory regime—including registration requirements for every machine gun, registration requirements for every seller and purchaser, $200 taxes for every transfer, and multi-month waiting periods. Owing in part to the significantly heavier burdens that attach to machine gun ownership, courts have interpreted the NFA‘s text (“readily restored“) to reach much further than the GCA‘s text (“readily be converted“). While the GCA only reaches conversions that can be accomplished in minutes using minimal effort, the NFA reaches restorations that can be accomplished in hours using maximal effort.
Take, for example, United States v. Smith, 477 F.2d 399 (8th Cir. 1973) (per curiam). That case concerned possession of an unregistered Thompson submachine
[The Government‘s expert] testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel.
Ibid. The court held that was sufficient to support Smith‘s NFA conviction because eight hours in a properly equipped shop with a sophisticated understanding of metallurgy constituted a ready restoration. See id. at 400–01. Other courts have interpreted the NFA to reach a machine gun that was permanently decommissioned by the military “by torch-cutting its receiver—the frame portion of the rifle that contains the firing mechanisms, located between the barrel and the stock—into two pieces.” TRW Rifle, 447 F.3d at 688. The court reasoned the machine gun could be “readily restored” by welding the two pieces back together and then using “a hand grinder (or dremel tool), a splitting disk, a drill press, and hand files” to restore its firing mechanism. Id. at 692. The court credited expert testimony that someone with the proper tools and knowledge could do that in two hours. Ibid. A similar case estimated that the same restoration could be done in six hours. See United States v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 422–24 (6th Cir. 2006).
* * *
These cases illustrate what should be obvious to any law-abiding American: Federal law treats NFA machine guns differently from ordinary GCA firearms like bolt-action rifles.
2.
The distinction was not obvious to ATF, however. In Footnote 43 of the Final Rule, ATF says “readily” means either “readily be converted” under the GCA or “readily restored” under the NFA—terms ATF understands as interchangeable in a string cite of cases arising under both statutes. See Final Rule, 87 Fed. Reg. at 24661 n.43. ATF points to Footnote 43 and its mishmash of GCA-NFA precedents over and over throughout the Final Rule. See id. at 24684 n.96, 24685 n.103, 24698 n.123, 24700 n.125 (pointing to footnote 43). As ATF explains, “this rule is guided by . . . relevant case law.” Id. at 24698.
The problem is that NFA precedents are not “relevant case law.” Ibid. As to ordinary GCA firearms, ATF is limited to regulating things that can “readily be converted” into firearms.
The practical implications of ATF‘s position are staggering. According to ATF, the word “readily” means the same thing in the GCA, the NFA, and the Final Rule. If that were true, then millions and millions of Americans would be felons-in-waiting. That is because the AR-15 is the most popular rifle in America; almost 20 million of them were in American homes as of 2020. See NSSF Releases Most Recent Firearm Production Figures, https://perma.cc/TBS8-JSSH (Nov. 16, 2020). But every single AR-15 can be converted to a machine gun using cheap, flimsy pieces of metal—including coat hangers. See Mike Searson, Turning Your AR-15 into an M-16, RECOIL MAGAZINE, https://perma.cc/L5G9-E9BJ (June 5, 2019). That is obviously far easier than the 8-hour-in-a-professional-shop standard announced in Smith to govern “ready restoration” under the NFA.
For decades, America‘s AR-15 owners have relied on the fact that AR-15s are not subject to the NFA‘s ready-restoration standard. Recall the NFA applies to machine guns B and things that can be “readily restored” to function as machine guns B. See supra Part II.A.2. By contrast, an AR-15 was never a machine gun B and hence cannot be “readily restored” to a machine gun B. Of course, an AR-15 A could be “converted” to a machine gun B. But unless that conversion could be done in a few seconds or minutes, see Morales, 280 F. Supp. 2d. at 272; Reed, 114 F.3d at 1056, AR-15 owners had no reason to worry that their rifles were capable of ready conversion into unregistered machine guns. The Final Rule eliminates that certainty, says “readily” means the same thing in the GCA and the NFA, and says Americans violate federal gun laws if they could in theory manufacture a prohibited weapon in eight hours in a professional shop with metallurgical expertise. See Smith, 477 F.2d at 400; Final Rule, 87 Fed. Reg. at 24661 n.43 (relying on Smith).
3.
After conflating the GCA and the NFA, the Final Rule includes a list of eight non-exhaustive factors to guide ATF‘s understanding of “readily“:
(1) Time, i.e., how long it takes to finish the process; (2) Ease, i.e., how difficult it is to do so; (3) Expertise, i.e., what knowledge and skills are required; (4) Equipment, i.e., what tools are required; (5) Parts availability, i.e., whether additional parts are required, and how easily they can be obtained; (6) Expense, i.e., how much it costs; (7) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and (8) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.
Final Rule, 87 Fed. Reg. at 24735. The Final Rule emphasizes this list is “nonexclusive.” Id. at 24698. And ATF explicitly disclaimed the need to explain how any of these factors would balance in practice: “It is not the purpose of the rule to provide guidance so that persons may structure transactions to avoid the requirements of the law.” Id. at 24692.
This approach violates the Fifth Amendment and its guarantee of fair notice. See FCC v. Fox Television Stations, 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.“). The “Government violates this guarantee
ATF dismisses the problem by pointing to courts that have rejected vagueness challenges to the term “readily.” Final Rule, 87 Fed. Reg. at 24700, n.126 (pointing to cases listed in 87 Fed. Reg. at 24679 n.79). But that argument fails for two reasons. Nearly all of ATF‘s cited precedents involve the NFA, not the GCA. See id. at 24679 n.79 (also citing cases on state laws and the ADA). And as discussed above, courts have interpreted the NFA more expansively than the GCA. But more relevantly, the cited precedents dealt with the word “readily” as it exists in statutory text. They did not consider ATF‘s nonexclusive eight-factor balancing test with no concrete examples. It is the text of the Final Rule, not the text of the statute, which falls short of the Due Process Clause.8
ATF also argues that it could provide sufficient guidance in individual cases: Where “persons remain uncertain” as to the exact scope of the Rule, “they may submit a voluntary request to ATF for a classification.” Final Rule, 87 Fed. Reg. at 24692. But this does nothing to cure the Final Rule‘s vagueness. As important as the Fifth Amendment‘s guarantee of fair notice to individuals is the Amendment‘s prohibition against “arbitrary enforcement” by government officials. See Johnson, 576 U.S. at 595 (citing Kolender v. Lawson, 461 U.S. 352, 357–358 (1983)). It is thus of no use for ATF to say that it will tell ordinary people what they can do. The law exists to tell both the people and government officials what they can do. See Sessions, 138 S. Ct. at 1228 (Gorsuch J., concurring in part and concurring in the judgment) (“Vague laws [] threaten to transfer legislative power to police and prosecutors, leaving to them the job of shaping a vague statute‘s contours through their enforcement decisions.“) (citing Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)). The nonexclusive eight-factor balancing test provides no guidance to anyone and hence is void for vagueness.
III.
Next consider the Final Rule‘s approach to weapon parts kits. The Final Rule expands the GCA‘s definition of “firearm” to include weapon parts kits:
Firearm . . . . The term shall 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.
Final Rule, 87 Fed. Reg. at 24735. But this expansion cannot stand for two reasons.
First, as the majority cogently explains, see ante at 19, Congress knows how to regulate gun parts, either individually or as a collection. The GCA‘s predecessor, the Federal Firearms Act, defined “firearm” to mean “any weapon . . . or any part or parts of such weapon.” Pub. L. No. 75-782, 52 Stat. 1250, 1250 (1938) (repealed 1968) (emphasis added). But Congress removed this language when it enacted the GCA. Moreover, Congress regulates parts elsewhere in the GCA (as well as in the NFA). See, e.g.,
Second, the structure of
Start with the statutory text. Section 921(a)(3) defines the term “firearm” in four sub-sections: (A), (B), (C), and (D). Consider only (A) and (B). Subsection (A) defines “firearm” to include “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.”
Contrast the statute with two hypothetical weapon parts kits covered by the Final Rule. The first kit contains a frame as defined by
Now consider a different kit covered by the Final Rule: This second kit contains no frame or receiver as defined by
ATF‘s only response is to say that it‘ll deem incomplete kits as “firearms” based on “a case-by-case evaluation of each kit.” Final Rule, 87 Fed. Reg. at 24685; cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). How is any American supposed to know when a collection of gun parts meets that standard?
In sum,
IV.
Finally, consider the Final Rule‘s treatment of unfinished and incomplete frames and receivers. This is perhaps ATF‘s most aggressive attempt to bootstrap hunks of metal and plastic into the GCA‘s definition of a “firearm.” As explained in the preceding sections of this opinion, the GCA‘s definition of a “firearm” includes (1) functioning guns, (2) weapons that are “designed” to be functioning guns, (3) weapons that can “readily be converted” to functioning guns, and (4) the “frame or receiver of any such weapon.”
But that statutory definition is not capacious enough for ATF. In the Final Rule, ATF asserts that anything beyond primordial ooze, liquid polymer, and wholly unformed raw metal can constitute a firearm. Here‘s how ATF explains the bootstrapping:
(c) Partially complete, disassembled, or nonfunctional frame or receiver. The terms “frame” and “receiver” shall include 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, i.e., to house or provide a structure for the primary energized component of a handgun, breech blocking or sealing component of a projectile weapon other than a handgun, or internal sound reduction component of a firearm muffler or firearm silencer, as the case may be. The terms shall not include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon
(e.g., unformed block of metal, liquid polymer, or other raw material).
Final Rule, 87 Fed. Reg. at 24739. But this expansion cannot stand, because (A) a frame or receiver parts kit is not a frame or receiver, (B) the Final Rule‘s examples defining “frame or receiver” are nonsensical, and (C) the Final Rule fails to sufficiently engage with then-contemporaneous definitions of “frame” or “receiver.”
A.
To begin, a frame or receiver parts kit is not a frame or receiver within the meaning of
Seven years before the GCA was passed, WEBSTER‘S THIRD defined frame as “the basic unit of a handgun which serves as a mounting for the barrel and operating parts of the arm,” WEBSTER‘S THIRD INTERNATIONAL DICTIONARY 902 (1961), and receiver as “the metal frame in which the action of a firearm is fitted and which the breech end of the barrel is attached.” WEBSTER‘S THIRD INTERNATIONAL DICTIONARY 1894 (1961). Now, the Final Rule attempts to expand those definitions, so that “frame” includes a “frame parts kit” and “receiver” includes a “receiver parts kit.” Final Rule, 87 Fed. Reg. at 24739.
But ATF cannot simply add the phrase “parts kit” and regulate as if the frame/receiver parts are the frames/receivers themselves. A frame parts kit does not serve as “the basic unit of a handgun which serves as a mounting for the barrel“; it is a collection of parts that could in theory be assembled into a frame. A receiver parts kit is not a “metal frame“; it is a collection of parts that can be assembled into a metal frame. Thus, as a matter of common-sense statutory interpretation, the parts kits cannot qualify as frames or receivers under
ATF‘s contrary view has no stopping point. For example, ATF says it will regulate “[a] complete frame or receiver of a weapon that has been disassembled, damaged, split, or cut into pieces, but not destroyed in accordance with paragraph (e).” Final Rule, 87 Fed. Reg. at 24739. Paragraph (e) in turn states that “[a]cceptable methods of destruction include completely melting, crushing, or shredding the frame or receiver.” Ibid. It is thus unclear if any gun part could ever fall outside ATF‘s definition of a “firearm.” On the front end, anything that has been refined beyond primordial ooze or raw liquid polymer could one day be a firearm. And on the back end, anything that has not been melted down into primordial ooze or raw liquid polymer could one day be restored to function as a firearm.
This makes little sense. If I went to a junk yard and picked up a piece of metal that used to be part of a truck, no reasonable person would say I‘m holding a truck because the metal has been formed beyond primordial ooze and hence could be “completed, assembled, restored, or otherwise converted to function” as either a truck or truck frame. Likewise, if I cut a truck into 100 pieces, scattered them on the ground, and then picked up some, no reasonable person would say I‘m holding a truck or truck frame because the piece hadn‘t been melted down to its primordial state.
B.
Next, the Final Rule says even unformed pieces of metal or plastic can constitute frames and receivers when they are found with instructions or jigs. In the section on frames and receivers, the Final Rule gave multiple examples of what is or is not a frame or receiver within the meaning
Frame or receiver: A frame or receiver parts kit containing a partially complete or disassembled billet or blank of a frame or receiver that is sold, distributed, or possessed with a compatible jig or template is a frame or receiver, as a person with online instructions and common hand tools may readily complete or assemble the frame or receiver parts to function as a frame or receiver.
Ibid. In contrast, Example 4 provides:
Not a receiver: A billet or blank of an AR-15 variant receiver without critical interior areas having been indexed, machined, or formed that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools such that it may readily be completed is not a receiver.
Ibid. Note the difference between Example 1 (frame or receiver) and Example 4 (not a frame or receiver): the presence of a jig or other template. Thus, it is the jig or template that triggers the GCA.
The implication of these examples is stark. On a workbench you find two receiver blanks like the silver ones pictured on page 3 of this opinion. Neither has “critical interior areas” that are “indexed, machined, or formed.” Ibid. But the right receiver blank is accompanied by a plastic jig. The left one is not. Under the Final Rule, the right receiver blank is a frame or receiver, thus triggering a five-year prison sentence for unlicensed manufacturing, importing, or dealing. See
It obviously cannot. Consider the lumber in every Home Depot across America. It obviously has been machined beyond its primordial state; much of it has been pressure treated, and all of it has been cut to specified lengths. The same is true about every screw, nut, and bolt in the store; all of them have been machined beyond their primordial states and cut to specified lengths. Now, if I walk into the Home Depot with instructions for making a chair, would any reasonable person say I possess a chair? Of course not.10
C.
Let‘s close with the ATF‘s eye-of-the-beholder standard. As noted in previous sections of this opinion, dictionaries define frame and receiver—like the Old 80% Rule—in terms of critical components, parts, and functions. For example, the frame or receiver must be able to hold a trigger or the breechblock. Or it must have
ATF‘s problem is that
* * *
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. I concur in the majority‘s opinion holding the Final Rule is unlawful. And I further concur that the matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.
Notes
ATF itself understood the importance of the word “readily” in the statute—the Final Rule includes numerous factors that might help ATF determine when something can “readily” be made into a working firearm. 87 Fed. Reg. at 24735. The appellees make many well-reasoned arguments regarding the ambiguity and vagueness of the Final Rule’s “readily” standard. To the extent ATF relies on such a subjective multi-factor test to determine on a case-by-case basis when parts may “readily” be converted into a working firearm, this Court looks to the wisdom of the Supreme Court: “It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance or else be held liable . . .” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 158–59 (2012). courts have interpreted these texts to reach very different results. Compare United States v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463, 465 (2d Cir. 1971) (interpreting the GCA’s “readily be converted” text to mean something as short as twelve minutes), with United States v. Smith, 477 F.2d 399, 400–01 (8th Cir. 1973) (interpreting the NFA’s “be readily restored” text to mean up to eight hours of work, done in a professional shop, by an individual with an advanced understanding of metallurgy). Despite these differences, in the Final Rule, ATF expressly conflates the two statutory phrases and claims that it can regulate partially complete “frames or receivers” using either standard. See, e.g., 87 Fed. Reg. at 24661 n.43 (relying on Winlee Derringer and Smith); id. at 24678–79 (relying on NFA and GCA interchangeably). This haphazard combination of standards employed by ATF in its Final Rule is the direct result of an agency that has strayed too far from its statutory foundation provided by Congress.