Second Amendment Roundup: ATF's Final Rule Implicates the Right to Bear Arms

Its restrictions on self-made firearms are inconsistent with the Nation’s historical tradition of firearm regulation.

Getting closer to October 8, when the Supreme Court will hear oral argument in Garland v. VanDerStok, I'd like to address whether ATF's 2022 Final Rule drastically expanding the meaning of the statutory term "firearm" implicates the Second Amendment.  By redefining "firearm" to include unfinished materials, information, jigs, and tools, the supply has dried up for persons freely to obtain what they need to construct self-made firearms.  Indeed, that is the purpose of the rule.

No one disputes that the right to keep and bear arms entails the right to acquire them, which presupposes that firearms must be made.  As explained in my previous post, the Federal Firearms Act of 1938 was the first federal law to require those engaged in the business of manufacturing firearms to obtain licenses.  To date, the Gun Control Act (GCA), passed in 1968, provides no restrictions on a person acquiring materials and making his or her own firearm.

ATF's commentary to the Final Rule argues that it does not violate the Second Amendment, because "the GCA and this rule do not prohibit individuals from assembling or otherwise making their own firearms from parts for personal use," nor do they "prohibit[] law-abiding citizens from completing, assembling, or transferring firearms without a license" as long as they are not "engaged in the business."  Yet the rule does prevent individuals from "making their own firearms from parts" by purporting to extend the statutory definition of "firearm" to raw material and previously-unrestricted parts that may no longer be bought and sold except through federal firearm licensees.

The Supreme Court in District of Columbia v. Heller did not "cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms."  ATF's regulations are not "laws" and have no basis in the laws passed by Congress, which enacted the exclusive definition of "firearm."  The Final Rule impedes the making and acquisition of firearms by imposing new, onerous restrictions, costs, and potential criminal jeopardy.

The commentary quotes the above words from Heller, but those words do not justify the policy argument in the next sentence: "PMFs [privately made firearms], like commercially produced firearms, must be able to be traced through the records of licensees when the PMFs are involved in crimes."  First, as covered in my last post, that a firearm was traced does not indicate that it was used in a crime.  Second, a firearm "must be able to be traced" only when, as the GCA provides, it comes from a licensed manufacturer or importer, is distributed by a licensed dealer, and is required to be marked with a serial number.  ATF's contention regarding the need for tracing is not a legal argument, but is purely a policy argument which can only be addressed by Congress.
In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Supreme Court held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."

Before looking for possible historical regulations, consider the Court's longstanding interpretative guide, expressed long ago in Ex parte Bain (1887), that "in the construction of the language of the Constitution . . . we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. Undoubtedly, the framers … had for a long time been absorbed in considering the arbitrary encroachments of the Crown on the liberty of the subject…."

I've documented countless such encroachments in The Founders' Second Amendment, but especially pertinent here is the 1777 plan by British Colonial Undersecretary William Knox: "The Militia Laws should be repealed and none suffered to be re-enacted, & the Arms of all the People should be taken away, . . . nor should any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in America…."  And consider this letter from Thomas Jefferson in 1793, two years after ratification of the Second Amendment: "Our citizens have always been free to make, vend, and export arms.  It is the constant occupation and livelihood of some of them."

Extensive documentation of this aspect of our history is set forth by Joseph Greenlee in "The American Tradition of Self-Made Arms," 54 St. Mary's L.J. 35 (2023).  He distilled a good part of this research for VanDerStok in the amicus brief of the National Rifle Association.

During colonial times, Greenlee shows, acquisition of firearms by importation and local manufacture was essential for food and protection.  Gunsmiths in towns and on the frontier made and repaired guns, often obtaining intricate parts like locks and barrels from other sources.  The trade was carried out by individual craftsmen.  The outbreak of the War for Independence brought a high demand for muskets from the States and the Continental Congress.  This cottage industry produced over a fourth of the long arms used by American troops during the war.  Even children helped assemble cartridges.

James Whisker, a prominent historian of early gunmaking, writes in The Gunsmith's Trade (1992): "Gun crafting was one of several ways Americans expressed their unrestrained democratic impulses at the time of the adoption of the Bill of Rights.… The climate of opinion was clearly such that it would have supported a broad distribution of this right to the people…."

Private gunmakers in the United States have developed many of the most significant innovations in firearm technology.  They include the forgotten makers of Pennsylvania rifles, Samuel Colt and his revolvers, the developers of Winchester lever action rifles, John Moses Browning and his countless innovations, and John Garand, inventor of the M1 Garand battle rifle that gave American GIs an edge in World War II.  Countless Americans, in bygone times and today, fashion, make, assemble, customize, and repair their own firearms.  As long as they were not engaged in the business of manufacturing firearms, Congress has never regulated private gunmakers.

ATF's Final Rule aims to prohibit the free acquisition of items that are not firearms by redefining them as firearms.  The government's brief brushes off any Second Amendment consequences – saying "the Rule's interpretation of the Act is entirely consistent with the Second Amendment" – without even attempting to show, as Bruen requires, that the Final Rule "is consistent with the Nation's historical tradition of firearm regulation." While this has not been litigated as a Second Amendment case, the rule of constitutional doubt should discourage an expansive reading of the GCA.

The amici brief of the Gun Violence Prevention Groups steps in to provide a Bruen analysis, relying on a Student Note "Gunmaking at the Founding" forthcoming in Stanford Law Review.  However, part VI of the NRA brief, relying on that same source, refutes it point by point.  The following seven categories (in quotation marks) are claimed to constitute a "historical tradition of firearm regulation," but for the following reasons given in the NRA brief, they do no such thing:

1. The "standard setting" laws established what arms could be used in militia service or sold to governments for militia use.
2. The "inspection" laws required militiamen to prove to militia officers that they possessed the mandated militia arms.
3. The "licensing" law was a 1642 Connecticut law requiring a license for any "Smith" to "doe any work for" hostile American Indians or for any person to "trade any Instrument or matter made of iron or steele" to them.
4. The "labor" laws simply refer to the legal relationship between masters and apprentices.
5. The "impressment" laws were generally wartime measures that required gunsmiths to prioritize military arms.
6. The "restrictions on dangerous persons" include prohibitions on providing firearms to allegedly dangerous persons and restrictions on repairing firearms for American Indians.
7. The "gunpowder-making" regulations did not apply to firearms and instead targeted gunpowder storage and sales.

The Gun Violence Prevention Groups' brief also cites "the longstanding practice of marking weapons—a precursor to modern-day serialization."  But the marking requirements applied only to public arms owned or used by the States.  As historian Whisker relates, "a gunsmith could choose to mark his guns, or not mark them, in any way he chose."  During the Revolution, many gunsmiths refrained from marking their firearms so that, in case the British won, those firearms could not be traced back to their makers.

As the Republic grew, some manufacturers voluntarily inscribed their firearms with serial numbers and others did not.  It was not until 1958 that licensed manufacturers were required to engrave serial numbers on firearms, excluding shotguns and .22 caliber rifles.  Only in 1968 did Congress require licensees to serialize all "firearms" as it defined them.  To date, it remains lawful under the Gun Control Act to make your own gun without restriction.

Finally, it is worth recalling that, in passing the Firearm Owners' Protection Act of 1986, Congress found that "the rights of citizens … to keep and bear arms under the second amendment to the United States Constitution … require[d] additional legislation to correct existing firearms statutes" and reaffirmed its intent not to "place any undue or unnecessary Federal restrictions or burdens" on firearm owners or "to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes."  It admonished that the Attorney General may prescribe "only such rules and regulations as are necessary to carry out the provisions of this chapter."  The Final Rule simply disregards these statutory "rules of engagement" and writes off the Second Amendment as if it is a "second class right."