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."

Comments

[Sam Bankman-Fried]

This is my rifle. There are many like it, but this one is mine.
My rifle is my best friend. It is my life. I must master it as I must master my life.
Without me, my rifle is useless. Without my rifle, I am useless. I must fire my rifle true. I must shoot straighter than my enemy who is trying to kill me. I must shoot him before he shoots me. I will ...
My rifle and I know that what counts in war is not the rounds we fire, the noise of our burst, nor the smoke we make. We know that it is the hits that count. We will hit ...
My rifle is human, even as I [am human], because it is my life. Thus, I will learn it as a brother. I will learn its weaknesses, its strength, its parts, its accessories, its sights and its barrel. I will keep my rifle clean and ready, even as I am clean and ready. We will become part of each other. We will ...
Before Allah, I swear this creed. My rifle and I are the defenders of my country. We are the masters of our enemy. We are the saviors of my life.
So be it, until victory is America's and there is no enemy, but peace!

[ThePublius]

"6. Before God, I swear this creed. My rifle and myself are the defenders of my country. We are the masters of our enemy. We are the saviors of my life."

[ReaderY]

I think the “readily convertible” language in the statute adequately covers the government’s position if the facts are as the government says they are. The act doesn’t just cover firearms, it covers things readily convertible into firearms. So the “exact definition” argument strikes me as a rather bad one.

It strikes me as a legitimate argument to dispute the government’s argument that these kits are readily convertible into firearms by sayimg no, it’s really hard to turn them into one.

And it strikes me that the government’s position is at least plausible. What is the purpose of these kits? The purpose is to turn them into firearms. So it strikes me as plausible that the kits contain a combination of something faiirly straightforwardly convertable into firearms when done by people who have some sort of basic knowledge, plus some sort of claptrap, a sort of defeat device analog, that makes it look hard when demonstrated before a judge.

I find myself wondering if maybe the instructions really are hard to follow, but people in the know can simply bypass parts of the instructions that were put there for Potemkin legal purposes and do it much more easily.

Perhaps an administrative agency really could be expected to know more about how easy or hard it is than a judge. It’s a factual, even a technical, question.

[Lee Moore]

The act doesn’t just cover firearms, it covers things readily convertible into firearms.

No, not things readily convertible into firearms. Only weapons readily convertible into firearms.

Unless the "weapon parts kit" is already a weapon - before it is assembled - it can't make it inside the statutory definition.

[Stupid Government Tricks]

Throwing a hunk of metal with sharp corners at someone sure sounds like a weapon to me!

So someone will argue.

[Voize]

And yet the statutory definition explicity includes an item – the starter gun – that is not a weapon but that can be converted into one.
If the text read “any weapon (or a starter gun)” you could argue that the starter gun inclusion was a one-off, but the actual phrasing is “any weapon (including a starter gun)” which suggests that "weapon" is meant to include potential weapons.

[Brett Bellmore]

Or maybe they just thought as a "gun", starter guns counted as weapons.

[Voize]

You will not convince me they also thought glue guns and pop rivet guns are weapons.

[Brett Bellmore]

Starter pistols began as actual pistols with obstructed barrels so that they could only fire blanks. They actually WERE "guns", not figuratively, and could be modified to fire normal ammunition fairly easily.

[Voize]

Confirming that Congress intended to include potential weapons created by, for example, reversibly disabling an actual weapon. The question then becomes where to draw the line, but it clearly isn't at "weapon" == "complete and functional weapon".

[Brett Bellmore]

No, I'll grant that's true. Neither was it, "Any random object that could be converted into a gun with relatively little work", or else plumbing stores would be in trouble.

The decisive point is that, for 54 years this law had a fixed interpretation. When for half a century nobody thinks a law means something different, there's a REALLY strong presumption against adopting a new interpretation.

All that happened here is that an anti-gun administration had the BATF pull a new 'interpretation' out of their asses because it was easier than trying to get a new law enacted.

[Lee Moore]

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).

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 problem with the expanded definition does not require any knowledge of firearms to discern.

The statutory definition requires an actual weapon and the qualifications refer to the additional requirements of being a weapon that can, or is designed to, or can be converted to – emit projectiles with explosive. So unless you have a weapon in the first place, you don’t get to first base. A weapon parts kit is not a weapon. It’s a kit out of which you may be able to make a weapon.

With the expansion of “frame or receiver” the problem is that the statutory definition does not relate the possibility of conversion to the frame or receiver, but to “such weapon”. It is the weapon that may be convertible, not the frame or receiver. The frame or receiver must already be a complete frame or receiver, not a part thereof.

We can do just the same with an airplane, and an airframe. An airplane parts kit, if one were to be created, is not an airplane. It’s a kit. And an airframe of an airplane is only an airframe when it has been built. The components to build it are not an airframe.

[Stephen Lathrop]

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.

Seems to misuse, “capacity.” That word encompasses both existing powers, and unrealized potential. An untrained average person cannot properly be said to lack capacity until an attempt to train specific skills has been tried and failed. The relevant question seems to be whether an average person could be trained. A long history of successful industrial enterprise suggests the answer is often enough, “yes,” to undermine the point of the amicus brief.

[Brett Bellmore]

Your position seems to be that anything an adequately trained person could transform into a firearm should be legally be considered to already be a firearm. Doesn't this have some problems in a world where people can build zip guns from plumbing fittings? Does the hardware store need an FFL to sell pipe?

[Dan Schiavetta]

Going by Prof. Halbrook’s standards of interpretation, where he considers “coat of arms” to mean a jacket with pockets small enough to hide pistols in, I declare that “firearms” refers to burn injuries and the entire regulatory apparatus should be transferred to the Department of Health and Human Services.

[Brett Bellmore]

So, I looked up what Halbrook actually had to say about "coat of arms".

"Although the real issue in the Morton Grove, Illinois handgun ban (America's first) involved the right to "keep" rather than to "bear" arms, the brief of Handgun Control, Inc. (HCI) claimed: "The language of the second amendment suggests that its purpose is limited to protecting organized and effective state militias. The terms 'arms' and 'bear arms' have (pg.157) always been associated with organized military activity." The chief authority cited by HCI for this proposition is Noah Webster's famous 1828 dictionary.

Anyone who looks up Webster's definition of "bear" will be startled to find the very opposite of what HCI claimed: "[t]o wear; to bear as a mark of authority or distinction; as to bear a sword, a badge, a name; to bear arms in a coat.""

I'm guessing that you're unduly influenced by Gary Wills' bogus book review, which pretends that this definition by Webster clearly had to do with heraldry. Wills is a well known anti-gun fanatic.

The whole carry/heraldry argument is analyzed here. On page 26/368.

If this dictionary entry were the sole basis for thinking "bear" in the 2nd amendment meant to carry in general, not solely in a military sense, you'd have something like an argument. The problem here is that it's just one out of MANY examples of the phrase "bear arms" being used in a non-military context at the time.

[Dan Schiavetta]

Before the gun industry took over 2A “scholarship” in the 1980’s, I never heard the phrase “bearing arms” used except in a military context.

And in Webster’s definition you are putting a semicolon after “distinction”. It should be a comma.

[ThePublius]

I had heard it with regard to private ownership and use of arms.

[ThePublius]

"First, there is no question that “bear arms” was used during the founding period to describe carrying weapons in individual and civilian contexts, outside of service in an organized militia or other military unit. Here are several examples:"

Click the link for the examples:

https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms

[Dan Schiavetta]

The article you linked to cites scholarship saying that the phrase was “almost always” used in a military context. It had to scour databases to find a handful of counter-examples -- including fiction and poetry.

[Joe_dallas]

Dont forget the word “And”

“Keep and bear arms”

Publius
The Duke research article is a good source, though it focused on the Phrase "bear Arms" without addressing the full phrase "keep and Bear arms"

is the phrase "keep and bear arms" describing only single activity ? or is it describing two separate and distinct activities ?
"Keep arms" and "bear arms"

[Brett Bellmore]

First, that's more a commentary on the circles you traveled in, than the actual state of usage.

Second, enough with this pretense that opposition to gun control is some kind of astroturf orchestrated by the firearms industry. It's just plain stupid; The firearms industry is one of the smaller industries in America, while the NRA is one of the largest membership organizations in the country.

If anything, gun owners have dragged some of the major manufacturers kicking and screaming into opposing gun control. Like Smith and Wesson, that decided they'd rather join than fight, and we nearly destroyed them with a boycott.

[Dan Schiavetta]

“What will allow more guns/ammo to be sold” is the guiding star of current 2A gun rights jurisprudence. I don’t see how gun manufacturers had to be “dragged kicking and screaming” into supporting it.

As for Smith & Wesson, they made the unforgivable mistake of putting child-safe triggers on their products.

[Brett Bellmore]

Bull. Shit. Total bullshit.

A third of the population own guns, and you want to pretend that the gun rights movement is astroturf on the part of one of the nation's smaller industries. That's simply crazy, if you actually believe it.

And here's what they actually agreed to. A lot besides 'child safe triggers'.

Note, for example, that commitment that, within 3 years, they'd stop manufacturing guns that didn't have some sort of non-existent bio-metric user lock built in. Even if they developed it, forget being able to use your gun if your hands were dirty, or the battery ran down.

Or the 'child safety' requirement that amounted to a demand that all their guns have excessively high trigger pull forces.

Or the requirement that their guns stop being backwards compatible with already owned magazines.

Or the code of conduct that S&W would have to cut off sales to all dealers that didn't agree to impose the agreement's terms on their other suppliers.

You couldn't have sold S&W guns at a gun show if the show didn't agree to require everybody to go beyond legal requirements regardless of whether they were selling S&W products.

Just child safe triggers my ass.

[Dan Schiavetta]

I'm not going to waste any more time on this except to point out that there is wide support among gun owners for gun control. It has always been thus. You can look it up.

[ObviouslyNotSpam]

What a graceful admission of error that was!

[Rossami]

Your ignorance is not a proper basis for law. The phrase "bearing arms" has always included non-military examples.

[Brett Bellmore]

The whole gun control movement is founded upon motivated ignorance; The historical record as to the meaning of the 2nd amendment is embarrassingly clear. But they have to pretend otherwise because repealing it isn't politically feasible, so they find it necessary to just pretend it means something that doesn't get in their way.

You really don't find much of any support for their preferred 'interpretation' of the 2nd amendment until the 20th century; States weren't subject to the 2nd amendment prior to McDonald, and until the NFA federal gun control simply wasn't a thing, so there wasn't any need to explain it away.

[Grifhunter]

The current gun control movement is founded upon motivated fears of a free and self actualized armed citizenry (and ignorance). The initial US gun control movement was based on bigotry and misplaced fears of immigrants, Native Americans, Catholics, freed slaves, etc. Quite revealing how many of the anti 2A “historians” comfortably cite to these racist disarmament laws to support their state militia-only arguments.