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."

 

Comments

[Noscitur a sociis]

Your earlier posts on this topic seemed to take the position that it is much more difficult and expensive to manufacture a firearm using the products subject to the new rule than to simply buy one.

To the extent that’s true, it seems like a strong argument that the rule doesn’t burden the right to keep and bear arms.

[Stupid Government Tricks]

That's pretty good. I wonder what the legal jargon is for petards and hoisting.

But the same petard applies in reverse. If this expansion doesn't actually limit the 2nd Amendment much, then it doesn't do what its proponents claim, and is pointless. I bet there's a legal term for that too.

What it all comes down to is the hoplophobes want to restrict guns while claiming hey aren't doing so. They can't have it both ways.

[Brett Bellmore]

OK, now apply this reasoning to printing presses.

Undoubtedly it's easier and cheaper to buy a printing press, paper, and ink, than to make them at home.

So, this implies the federal government could ban the home manufacture of paper, ink, and printing presses, and require that all that be done by strictly licensed manufacturers, within a system designed to trace who owned what printed matter?

[verochkax]

If the federal government will concede it doesn't have the Constitutional authority to restrict or regulate the commercial manufacture, I might see the argument for that. But it doesn't, so I don't

[Krayt]

Implicit in keep and bear is the manufacturing and distribution and sale of them, otherwise it is meaningless.

The same could be said of freedom of speech, sure, speech is protected, but says nohing about government controlling the mass production and distribution of speech as a back door means of censorsh...wait, the founding fathers wete onto these shenanigans and protected presses, too.

[Rossami]

So the fact that your computer costs way more than an ink and quill means that it's not a First Amendment infringement to make using your computer even more burdensome and expensive? Sorry, that logic doesn't fly.

[Dan Schiavetta]

How many militiamen in 1787 actually made their own muskets?

(the rest of the world laughs at us for this whole conversation, and they are right to do so)

[Stupid Government Tricks]

Why is that relevant? There were no FFLs, if you want to actually honor the Constitution. Anybody could make firearms.

[jooko]

The rest of the world also laments that their right to protect their life and property is fictitious as one’s not allowed to keep a weapon for self-defence even in his home.

[ObviouslyNotSpam]

The "rest of the world" doesn't labor under a 235 year-old written constitution and appurtenant Bill of Rights, so their amusement is noted, but largely ignored within the US.

I prefer living in the "rest of the world", in part due to the lower level of violent crime compared with where I grew up in the US, but I don't believe in the magical resolution of longstanding, complex societal problems by pretending that the legal situation relating to private ownership of firearms in the US is comparable to those of other countries.

[Brett Bellmore]

Right. If we Americans didn't want to live under the Constitution, we could either move or repeal it. Until then, stop demanding that the US be governed as though the Constitution didn't really exist.

[Stephen Lathrop]

The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.

The lowest bar ever! Read the full text of the 2A.

Note in passing, it is beyond peculiar that pro-gun advocates suppose that the Supreme Court has read the militia clause completely out of the 2A, for every purpose.

Halbrook's 2A:

Existence of a well-regulated militia being a nullity, the right of people presumed law-abiding to do anything at all with guns shall not be infringed by any prior constraint whatever, mass murders in schools not excepted.

[Brett Bellmore]

Well, the Court DID read it out of the 2nd amendment, because they didn't want to admit that it was a right to military arms.

While the minority didn't want to admit it was a right to arms at all...

Your problem is that you have trouble understanding that the militia clause refers to the miitia, while the right is explicitly guaranteed instead to the People.

This was no accident: The founders were concerned that if the right were only guaranteed to the militia, you could end up with a "select militia" which was in practice just a standing army. So they guaranteed the right instead to the People, (The same people referred to in Amendments 1, 2, 4, 9, and 10.) so that the population could be safely armed even if the militia system were discontinued.

You can't, constitutionally, justify gun control on the basis of regulating the militia. Regulating the militia can justify mandating owning specific guns, mandating training, it can never be used to prohibit owning or training with them, any more than an amendment to promote literacy could be used to justify banning books.

[Stephen Lathrop]

Your problem is that you have trouble understanding that the militia clause refers to the militia, while the right is explicitly guaranteed instead to the People.

Bellmore — Scalia suckered you on that one. He pretended not to notice (with you, no pretense necessary) that, "people," is plural not singular. And more significantly, that references in founding era politics to, "the people," tend to refer to the notion of joint popular sovereignty, and almost never anything to do with persons in their individual capacities as subjects of governments.

Scalia understood that to be a problem with his argument. So he went circles around the barn trying to explain away an assertion he needed, but undoubtedly understood to be misleading. You are just the guy who got misled.

[Brett Bellmore]

He proceeded, expressly, to treat "the People" as meaning the same thing everywhere in the Constitution that term is used, rather than treating it differently in one solitary amendment.

[Stephen Lathrop]

Bellmore, to the extent there is truth in that, Scalia should have taken the other side.

For instance, the 9A and 10A read coherently, instead of as nonsense, if the reference is to the jointly sovereign people. The states and the jointly sovereign people are actors decreed to have constitutional roles. Individuals with status as subjects of government were indeed the parties with rights meant to be protected, but their lack of power to accomplish vindication of rights on their own behalf was the evil provided against, not, foolishly, the agency the founders proposed to rely upon for a power greater than government’s to accomplish vindication.

In the 1A, the right to petition had a specific historical context, one which did not hinge on individual petitioners to government. It referred instead to consequential blunders during the pre-Revolutionary era, when the British government spurned petitions from colonial legislatures, and colonial governors spurned petitions from the colonies’ legislative bodies. Franklin singled out that unwise disregard of legislative petitions as one of the principal, if not the worst, goads to revolution.

Take off your untra-individualist spectacles, they are distorting your view. Try to read again the Federalist papers, noting references to, “the people,” which appear. In each instance, ask yourself whether the text appears more coherent and systematic with that term read as invocation of Joe Citizen, or as reference to the jointly sovereign people.

Note also, Scalia’s notion to demand absolute consistency in usage is an invitation to historical stupidity. Usages in contemporaneous historical context were what they were. To figure out what each one was, taken in its own context, is the proper task of a historical researcher. To begin instead with a rule made up from present-minded context to impose uniformity is historical irrationality of the most egregious kind.

[verochkax]

It's a lie that the "rest of the world" has a lower level of violent crime than the U.S. Maybe if you limit that analysis to certain countries in East Asia and Western Europe, that's true, but that's more based on demographics than gun laws.

[Brett Bellmore]

The problem is that they're treating the US as a European nation that just happens to be located on North America, (Which might be a fair description of Canada, I suppose.) rather than an American nation that happens to be unusually prosperous and peaceful.

Our murder rate is less than half the average for countries in the Americas, and is quite comparable to Nicaragua or Paraguay.

I'd point out that almost everybody in the US lives in areas that are as peaceful as Europe, and it's simply a matter of our over-all murder rate being skewed by a tiny portion of the country having insanely high murder rates, but to be fair that's probably true in Europe, as well.

[verochkax]

Yes, precisely. And that's also true in places like Sweden that have let in tons of migrants from Muslim countries.

The suburb I grew up in was about 60% white, and about 40% Asian, with about 1% of "other." The Asian group was mostly of Chinese descent, but a sprinkling of Japanese and Korean.

Crime was unheard of. There hasn't been a murder there in 50 years. I have no qualms about saying the crime rate there is comparable to any safe place in Europe.

[Brett Bellmore]

Remember, it's unpossible that different groups have different proclivities to commit crime. Any time crime statistic show that, it must be that some sort of nefarious discrimination is distorting them.

I don't remotely think it's genetic, I live in a peaceful mixed race bedroom community outside Greenville, half my neighbors are black, and there's nothing wrong with them. And in the inner city ghettos where that ultra-high crime rate exists, the whites there are just as involved in it.

It's all about culture. Some cultures work, some don't. But the left can't admit that, and refusing to admit it, voluntarily blind themselves to the actual truth about what's going on.

[verochkax]

I do think blacks have a genetically lower average IQ, but that doesn't mean that they necessarily have to commit crime. Low IQ people can be just as law abiding as high IQ people.

[Brett Bellmore]

It's hard to distinguish IQ differences and cultural differences that implicate intellectual activity. But even if there were such group differences, the overlap would be enormous, and they'd tell you absolutely nothing about any individual person. At most they might help explain statistical trends.

The only reason I find the topic of any interest at all, is that we need to eventually understand the genetics underlying intelligence, if we're ever to improve ourselves as a species.

After all, none of us are really all that smart, we're just varying degrees of abysmally stupid. We really need, as a species, to do something about that.

[verochkax]

Of course, but the statistical disparity still matters if it's going to be used as evidence for "white racism" and remedial measures based on that.

[Stupid Government Tricks]

There was an article a few years back on crime rates. Per memory ....

* UK burglars target occupied houses because they can terrorize the occupants into pointing out where the goodies are, and have little chance of being shot or suffering any self-defense. US burglars target empty houses (owners working or shopping) to avoid the perils of self-defense.

* The UK only counts murder convictions. A dead body with multiple gunshots to the back of the head, and no conviction, does not count as a murder.

* Every EU country had a violent crime rate 4-5 times higher than the US.

There probably is some truth to the first one, just from common sense. What the others point out is the variety of definitions which make international comparisons meaningless.

[Michael P]

Well, the rest of the world might laugh at you for not knowing history, and they would be right to do so.

The last time I spent much time with the rest of the world, they laughed at somebody coming to a stop at a red light and then running it, not at the Second Amendment. The mindset of "I can run this red light because it probably won't cause problems" causes problems, not being able to own guns.

[Brett Bellmore]

We’re taught in driver’s ed that that’s exactly what you’re supposed to do at a stuck traffic light: Treat the intersection as a 4 way stop. (It’s been an issue around here lately, what with the recent storm; A lot of the traffic lights are malfunctioning, where they’re working at all.)

I'll gladly concede that some people are a bit too eager to conclude a traffic light is stuck, if there's no other traffic in sight.

[Krayt]

How many militiamen in 1787 actually made their own muskets?

How many crowns restricted muskets to lessen competition for power?

(the rest of the world laughs at us for this whole conversation, and they are right to do so)

And they did so under the thumb of those dictators long after that period. It is the laughter of fools. The same foolish laugher that nowadays fantasizes democracy can safely wield censorship.

[Buddy Bizarre]

The rest of the world laughs so hard they end up at the borders of the US trying to get in. How are the demographics of the countries with their ‘common sense’ gun control?

[wvattorney13]

This should be an easy case under Bruen. There is no historical tradition of regulating people who manufacture their own arms.

But the scary word "ghost guns" will make, at minimum, Roberts and Barrett find that a wildly dissimilar historical law is an analogue.

Don't want law trapped in amber.

[MN2828]

It isn’t a case under Bruen at all. This is an APA case. The only question is whether the statute authorizes the regulation. It strikes me that this case will go the way of the bump stock case because the statute doesn’t marry up to the regulation and it is a complete change of course after 50+ years.

Could Congress write a statute that deemed something that could be “readily converted” into a receiver to be a receiver? Probably.
Congress can regulate the commercial manufacture and sale of goods. As part of that regulation, Congress can require commercial manufacturers to place serial numbers on products (e.g., automobiles). The 2d Amendment doesn’t change that. It also seems reasonable that Congress can define the finished product to include the key components that could reasonably easily be combined to form the final product in order to avoid manufacturers evading the statute. Again, the 2d Amendment should not impact that.

It seems reasonable that Congress could apply the “readily converted” language to “the frame or receiver of such a weapon” without running afoul of the 2d Amendment. An overly broad definition of “readily converted” may well take the statute into 2d Amendment territory if the regulation really impinges on non-commercial conduct.