Second Amendment Roundup: Textualism and ATF's Redefinition of "Firearm"

The statutory history of the Gun Control Act cuts in favor of the VanDerStok respondents.

This is my second installment preceding the upcoming October 8 argument in Garland v. VanDerStok, a challenge to the regulatory redefinition of the term "firearm" in the Gun Control Act.  By expanding the statutory definition, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) in its 2022 Final Rule purports to criminalize numerous innocent acts that Congress never made illegal.

Until the new rule, a kit with partially-machined raw material that can be fabricated into a firearm was not considered to have reached a stage that it is a "firearm."  To prevent Americans from making their own firearms from such material, which has always been and remains lawful, the bugbear term "ghost guns" was recently coined.  In its VanDerStok brief, the government argues that "anyone with basic tools and rudimentary skills" can "assemble a fully functional firearm" from such kits "in as little as twenty minutes."

As explained in my last post, that is refuted by none other than the former Acting Chief of ATF's Firearm Technology Branch, Rick Vasquez, who reviewed and approved hundreds of classifications about whether certain items are "firearms."  As he explained in his amicus brief, fabrication of a firearm from these kits is a complex process requiring skill and special tools beyond the capacity of the average person.

In this post I'll trace the statutory history of the term "firearm" to gain insight into its meaning.  The Gun Control 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…."  18 U.S.C. § 921(a)(3).  An ATF regulation on the books from 1968 to 2022 defined a "frame or receiver" as "that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism," i.e., the main part of a firearm to which the barrel and stock attach.

ATF's Final Rule stretches these terms to mean parts, material, jigs, tools, and instructions that constitute neither an actual "firearm" nor a "frame or receiver," but may be used by a skilled person with proper tools to fabricate these items.

This new regulatory definition of "firearm" obviously conflicts with the definition enacted by Congress.  Two cases decided by the Supreme Court this year directly apply.  Per Dep't. of Agriculture Rural Dev. Rural Housing Service v. Kirtz: "When Congress takes the trouble to define the terms it uses, a court must respect its definitions as virtually conclusive."  Congress defined "firearm."  And while Congress did not explicitly define "frame or receiver," Snyder v. United States teaches that, after analyzing the statutory text, a court may look at "the statutory history, which reinforces that textual analysis."

Statutory history is a prime focus of the Amicus Curiae Brief of the National Shooting Sports Foundation, which I coauthored with Schaerr Jaffe LLP and NSSF counsel.  As the brief details, the statutory history reinforces the textual analysis.  I have covered the subject further in "Textualism, the Gun Control Act, and ATF's Redefinition of 'Firearm,'" Harvard Journal of Law & Public Policy: Per Curiam, Aug. 27, 2024.

We begin with the Federal Firearms Act of 1938 ("FFA"), 52 Stat. 1250, which defined a firearm as "any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive … or any part or parts of such weapon."  It provided that any person who violated "any of the provisions of this Act or any rules and regulations promulgated hereunder" was subject to fines and imprisonment.  It empowered the Secretary of the Treasury to "prescribe such rules and regulations as he deems necessary to carry out the provisions of this Act."

FFA regulations required licensed manufacturers to record firearms disposed of, including "the serial numbers if such weapons are numbered."  Dealers were required to record acquisitions and dispositions.  Required records included "firearms in an unassembled condition, but not including parts of firearms."  That an "unassembled" firearm constituted a firearm in no way implied that raw material and unfinished parts were considered a firearm.

Revenue Ruling 55-175 (1955) held that "a barrel[ed] action comprised of the barrel …; front and rear stock bands; receiver with complete bolt, trigger action, magazine, etc., is a weapon, complete except for the stock, which is capable of expelling a projectile or projectiles by the action of an explosive."  One can see here the understanding of a "receiver" as the housing that holds the internal parts that would be reflected in the 1968 regulatory definition of "frame or receiver."

Apparently, the only judicial decision on the meaning of "part or parts" in the FFA was United States v. Lauchli (7th Cir. 1966), which mostly concerned dealing in unregistered machine guns.

The court held that "Browning automatic rifle magazines" were "parts" under the FFA because "such weapons could not be fired automatically without the magazines."  These finished parts contained in the machine guns were "serviceable parts, thus bringing them within the scope of the [FFA]."  This statement confirmed that items that were not "serviceable parts" were not considered "parts."

In sum, under the FFA, a "firearm" was a "weapon" designed to expel a projectile, whether assembled or unassembled.  To be a "part or parts," the items had to be serviceable.  A "receiver" housed the bolt, trigger action, and magazine.  This background demonstrates that partially completed material that had not become an actual weapon or useable parts was not considered a "firearm."

Despite recent political jargon about so-called "ghost guns," from the ratification of the Second Amendment in 1791 until 1958, no federal legislation required that anyone—even a firearm manufacturer—mark a firearm with a serial number.  Then in 1958, a regulation required manufacturers and importers to identify each firearm "by stamping … the name of the manufacturer or importer, and the serial number, caliber, and model of the firearm…. However, individual serial numbers and model designation shall not be required on any shotgun or .22 caliber rifle…."

Beginning in 1963, bills were introduced to revise the FFA that would eventually find their way into the Gun Control Act ("GCA") of 1968, the major federal law regulating firearms today.  As reflected in Senate Report No. 90-1097 (1968): "It has been found that it is impractical to have controls over each small part of a firearm.  Thus, the revised definition substitutes only the major parts of the firearm; that is, frame or receiver for the words 'any part or parts.'"

Initially, the GCA bills continued the FFA provision making violation not just of the Act, but also of any rule or regulation, a criminal offense.  In floor debate, Senator Robert Griffin objected that lawmakers "should not delegate our legislative power … in the area of criminal law," and that due process required that "we should spell out in the law what is a crime."    Likewise, Senator Howard Baker rejected "plac[ing] in the hands of an executive branch administrative official the authority to fashion and shape a criminal offense to his own personal liking." 114 Cong. Rec. 14,792 (May 23, 1968).  Making it a crime to violate a regulation was then removed from the bill.

As enacted, the GCA defined "firearm" exactly as it is defined by that statute now.  It required licensed manufacturers and importers to engrave a serial number on each frame or receiver.

Also in 1968, the Treasury Department adopted the same regulatory definition of "frame or receiver" that was retained until 2022: "That part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel."  That reflected the common understanding of the meaning of those terms.  In fact, each of the terms in the definition was defined that same year in Chester Mueller & John Olson, Small Arms Lexicon and Concise Encyclopedia (1968).

Just before adopting its proposed GCA regulations in 1968, Treasury held a public hearing, the only one ever held before or since.  Not a single witness objected to the definition of a frame or receiver.  To the contrary, an industry witness praised the "very clear definition of a … receiver, something we didn't have before[.]"

If the 1968 regulation could talk, it would say: "read my lips – the frame or receiver is the 'part' that 'provides housing' for the internal parts in the present tense, not partially-machined raw material that 'could provide housing' in the future should one perform the required fabrication operations."

In deep-sixing the Chevron deference doctrine in Loper Bright Enters. v. Raimondo, the Supreme Court said that historically "respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time."  That applies perfectly to the 1968 regulation, which expressed the common understanding of "frame or receiver" when Congress enacted the GCA, and remained in force for the next fifty-four years until ATF abruptly scrapped it.

In enacting the Firearm Owners' Protection Act ("FOPA") of 1986, Congress found "additional legislation" necessary "to correct existing firearm statutes and enforcement policies."  But it left intact the GCA's definition of "firearm" and expressed no dissatisfaction with ATF's definition of "frame or receiver."  It was the same result in the three subsequent times in which Congress defined certain types of firearms – the Crime Control Act of 1990, defining "semiautomatic rifle"; the Brady Act of 1993, defining "handgun"; and the Public Safety & Recreational Firearms Use Protection Act of 1994, defining "semiautomatic assault weapon" (repealed in 2004).

As the Supreme Court opined in U.S. v. Rutherford (1979), "once an agency's statutory construction has been 'fully brought to the attention of the public and the Congress,' and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned."

However, FOPA mandated that the Secretary (now the Attorney General) may prescribe "only such rules and regulations as are necessary to carry out the provisions of this chapter," deleting the prior language that "the Secretary may prescribe such rules and regulations as he deems reasonably necessary."  And yet today, ATF's Final Rule purports to expand the meaning of terms in conflict with the GCA's plain text and thereby to criminalize previously legal conduct through regulations.

In sum, the statutory history reinforces the textual analysis that the term "firearm" is limited to the exact definition that Congress enacted, and does not extend to an open-ended, undefined "parts kit" that flunks that definition.  Further, a "frame or receiver" is the main part of a firearm that provides housing for the internal parts, an understanding that has persisted over a half century. It does not include partially-machined raw material that has not been fabricated into a functional housing.

For much more on the statutory history beginning with the Federal Firearms Act of 1938 and going forward, please see my article "The Meaning of 'Firearm' and 'Frame or Receiver' in the Federal Gun Control Act: ATF's 2022 Final Rule in Light of Text, Precedent, and History."