Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule

The Supreme Court is set to decide whether the agency may expand criminal liability under the Gun Control Act.

On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms "firearm" and "firearm frame or receiver."  This is the first of several posts in which I'd like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.

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" – in other words, to main part of the firearm to which the barrel and stock attach.

The Final Rule expanded "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."  And it redefined "frame or receiver" to include "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."

The impetus for these new definitions is the political controversy over "ghost guns," a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as "80% receivers."  Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.

Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers.  Private individuals have always been free to make their own firearms without such federal restrictions.  The new definitions have the effect of subjecting hobbyists to federal controls.

The Fifth Circuit held that ATF may not change the definition of "firearm" enacted by Congress and that its redefinition of "frame or receiver" failed to reflect the original, common understanding of that term.  It thus ruled the definitions to be beyond ATF's authority and arbitrary and capricious.

In the Supreme Court, the government begins its defense of the Rule by asserting that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  Not one of those italicized terms is even close to reality.

For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.

Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he served as a Firearms Enforcement Officer in ATF's Firearms Technology Branch (FTB), the division that determines whether partially-machined material that can later be manufactured into a firearm constitutes a "firearm" under the Gun Control Act.

In 2004, Vasquez was selected as the FTB's Assistant Branch Chief, and from 2008 to 2010, he held the Acting Chief and the Assistant Chief positions. He reviewed and approved hundreds of determinations of whether items were "firearms," the majority of which related to the manufacturing of receivers for AR-15 style firearms.

Quoting the government's brief in VanDerStok, Vasquez writes:

In reality, not just "anyone" with "basic tools" and "rudimentary skills" can take a parts kit and assemble a "fully functional firearm" at all, let alone in a "matter of minutes." Even assuming the hypothetical "anyone" had the tools needed to construct a firearm, they also need a level of skill, patience, and determination that eludes most non-experts.

The government focuses on the Polymer80 parts kit for a Glock-style semiautomatic pistol, but fails to explain the supposedly simple process. Vasquez provides a step-by-step summary of fabricating a functioning firearm from this parts kit. He notes: "On their first attempt, non-experts are frequently unable to even get their firearms to work after many hours of frustration. Many beginners don't know where to start."

The government also fails to discuss the complexity of building AR-15-style firearms from parts kits, which is a far more difficult task than building Glock-style handguns.  As Vasquez explains, "Machining the fire control cavity of a lower receiver in particular," a task necessary to complete an unfinished receiver, "is a painstaking process that demands precision and requires technical expertise with uncommon tools."

Not surprisingly, Vasquez's explanations are highly technical and may be difficult to understand by persons who are not firearm experts.  The illustrations in the brief are helpful.  I won't even try to define all of the terms he uses.  But that's why his brief is so significant.  The Supreme Court should not be misled by the government's unrealistic claim that anyone can make a functioning firearm from a kit in minutes.  The average person won't be able to make one at all.

Let's start with building a Glock-style handgun.  As to the tools needed, Vasquez relates, "most everyday citizens (to say nothing of a prototypical street criminal), do not have all of them on hand."  When California sued ATF in 2020 for not designating various "80-percent" parts kits as "firearms," the government stressed that tools such as end mills "are beyond the common household tools' that [California] repeatedly characterize as sufficient to complete this detailed work." California v. ATF, ECF No. 64, No. 20-cv-6761 (N.D. Cal. Jan. 11, 2021).

Austin Murphy, a California journalist, wrote an article "How easy is it to build a ghost gun?"  The Press Democrat (Nov. 12, 2021).  Vasquez quotes from the article in the various stages of the build to show it to be beyond the capabilities of non-experts without expensive, advanced tools.  In fact, Murphy enlisted the aid of a gun machinist with expert knowledge and tools to do most of the work.

Murphy said he "felt a twinge of panic as he read the instructions," prompting him to seek the aid of an expert with a serious workshop.  Vasquez writes that "even after turning the work over to experts three separate times—first to mill the frame, then to assemble the numerous parts, and finally to fix it when it jammed—it took the group more than seven hours to build a functioning firearm from a Polymer80 kit."

As Vasquez observes, "When the out-of-pocket cost of building a gun at home exceeds the cost of buying a new one, it bolsters the conclusion that homebuilding is an exercise mostly undertaken by hobbyists."  For gangbangers with no skills or tools, the black market or theft does the trick instead.

To show how "anyone" can make a Glock-style pistol in minutes, the government refers to a video in which a skilled firearm expert uses a jig, drill bits, Dremel high-speed grinding tool, files, and sandpaper to fabricate a frame from a Polymer80 kit.  That is followed by the installation of numerous intricate parts by use of roll pins.

It's not so easy.  As described by Vasquez, one must first place the frame precursor in a jig in order to drill six holes; "if these opposite side pin holes are not aligned to within a few thousands of an inch, the firearm cannot be assembled."  Next, one mills the top rail and then the barrel block, which is also difficult.

For those steps, Murphy enlisted a second firearm expert "to make sure I made no dumb, dangerous mistakes…."  Murphy tried to install the slide lock spring and locking lever by himself, but that was "slapstick—witness my dozen or so attempts to drop the itty-bity slide lock into its elusive groove."  Next came installation of the magazine release spring and button, combining the trigger assembly and dropping it into the frame, inserting the pins for the slide stop lever, and attaching the slide.  (In the video cited by the government, the slide was already assembled.)

As Vasquez relates, "the moment the builder tries to rack the slide is often the first time that the builder learns something went wrong with the milling process."  That happened to Murphy, who gave his malfunctioning pistol to his expert friend for a few more hours of troubleshooting.

Vasquez concludes the first part of the brief with the observation that "the central premise of the government's argument—that 'anyone' can build a fully functioning Glock-style handgun from a parts kit 'in a matter of minutes'—is simply wrong."

Part two of the brief describes the far more difficult process of building an AR-type firearm, which is why the government virtually neglects the subject.  To complete an AR lower receiver from a partly completed "blank" that one purchases, the area that houses the trigger mechanism and hammer must be milled out and holes must be drilled for the selector, trigger, and hammer pins.  As the government brief explained in California v. ATF, that requires "multiple drill bits strong enough to drill aluminum or polymer …, along with lubricants to reduce heat and prevent the drill bits from melting," as well as "specialized tools, such as end mills, [that] must be used to excavate the cavity to house the trigger and fire control mechanism." As Vasquez adds, one also needs a vise block, bench block, barrel rod, torque wrench, armorer's wrench, and more.

In response to California's argument that completing an AR-type receiver blank is just a "simple process," Daniel Hoffman, the then (and current) Chief of ATF's Firearm Technology Industry Services Branch (previously called the Firearms Technology Branch) explained how difficult it is.  Hoffman is a retired Army Infantry sergeant with nearly thirty years technical experience in complex weapon platforms.  He wrote:

I completed my first AR-type receiver in the fall of 2017, using a compatible AR-type fixture (e.g., a jig), a hand drill, and a drill press. The initial drilling of the fire control cavity took me approximately three hours.  However, the dimensions on the cavity were not to specification, and I needed another hour and a half to get the receiver into a functional state. Even at four and a half hours, and with my considerable experience with firearms, the completed receiver build quality was substandard, with the fire control cavity not being cut to exact specifications.

Once the lower receiver is fabricated, there are over 100 parts to assemble to make a functional AR firearm.  Expenses may cost anywhere from $500 to $3000, depending on the quality.  As Vasquez concludes, "even if one spent the time and money to gather all of the necessary tools, equipment, and parts, they would still need the knowledge and skill to assemble a working AR-type firearm."

In sum, the government hopes to stampede members of the Court into believing that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  The brief of former Acting Chief of ATF Firearms Technology Branch Rick Vasquez explodes that fantasy.