What VanDerStok Says about Agency Interpretations of Statutes

The Court's opinion upholding federal regulation of "ghost guns" makes passing reference to Loper Bright Enterprises.

Yesterday, in Bondi v. VanDerStok, the Supreme Court upheld the federal regulation of so-called "ghost guns." Specifically, the Court upheld a regulation promulgated by the Bureau of Alcohol, Tobacco and Firearms pursuant to the Gun Control Act of 1968 to cover weapon parts kits "designed to or may readily be converted to expel a projectile."

The opinion for the Court by Justice Gorsuch concluded that the regulation was not facially inconsistent with the statute, while leaving aside whether the regulations lawfully reach particular weapons part kits or unfinished gun frames or receivers. (Justices Thomas and Alito dissented.)

One interesting portion of the opinion discussed the extent to which reviewing courts should give deference or respect to agency interpretations of the statutes which they administer. On this point, Justice Gorsuch wrote:

Without question, ATF's new rule seeks to regulate a greater variety of unfinished frames and receivers than the agency has in the past. But it is equally true that, for decades, the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers, including ones no more finished than Polymer80's product. See, e.g., Are "80%" or "Unfinished" Receivers Illegal?, ATF (Apr. 6, 2020), https://www.atf.gov/firearms/qa/are-"80"-or-"unfinished"-receivers-illegal; App. 117–118 (2013 guidance); id., at 5, 8, 10 (1990–1994 classification letters); id., at 22 (deeming a frame with additional "material left on top" to be a "firearm"). And while "courts must exercise independent judgment in determining the meaning of statutory provisions," the contemporary and consistent views of a coordinate branch of government can provide evidence of the law's meaning. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024).

Of note, in this instance the Court concluded that the rule at issue reflected "the agency's consistent understanding" that the relevant statutory provisions reach at least some incomplete gun frames or receivers.

This reference to Loper Bright Enterprises underscores that the justices are concerned about the sort of dynamic that motivated the major questions decisions--the discovery of latent, previously undiscovered and unheralded sources of agency authority in long extant statutes--and not about disregarding agency interpretations altogether. It also suggests that the Trump Administration can expect resistance if it seeks to adopt new interpretations of old statutes, particularly where there is a long history of consistent agency understanding and application of the law in question.

Comments

[CJColucci]

I have long thought that the long-predicted demise of Chevron would affect how courts talk more than what they do.

[Brett Bellmore]

The problem here isn't so much the regulation, as the Gun Control act of 1968.

Put bluntly: If it hadn't already been on the books when Heller was decided, is there a ghost of a chance it would have survived 2nd amendment scrutiny? It's nothing but one big infringement!

All these 'presumptively constitutional' laws the Court is showing deference to were adopted during a period when the Court itself was refusing to take any 2nd amendment cases, which is something the Court's majority does NOT seem interested in squarely confronting.

It's as though the Brown court had declared Jim Crow laws presumptively constitutional, and ignored that it hadn't been upholding the 14th amendment at the time they were adopted.

[David Nieporent]

To reiterate: this case had nothing to do with the 2nd amendent.

[Brett Bellmore]

And. That's. The. Problem. If it had to do with printing presses instead of guns, would the Court have treated it as an ordinary question of statutory interpretation? No, I don't think so.

They are not treating this as a law that implicates a constitutional right.

[David Nieporent]

If it had to do with printing presses instead of guns, would the Court have treated it as an ordinary question of statutory interpretation?

Yes, of course. The only question actually presented to the court was how to interpret the statute. See Sineneng-Smith; the courts' role is not to conjure up entirely new issues that the parties didn't raise.

[hobie]

Brett is obsessed with guns. It would be akin to me talking about having sex with children. Yeah it's wrong, but I just...won't...stop talking about it. Almost like I'm obsessed or addicted. Clearly Brett and Me need help

[Brett Bellmore]

So, you're saying you're obsessed with having sex with children?

I'm not particularly obsessed with guns. Sure, I own a few, but I haven't so much as opened my gun cabinet in over a year. Now that I don't live in the country anymore, finding a place to hunt or target shoot is just so inconvenient, you know what I mean? I'll probably gift all my guns to my son when he turns 21.

For me, guns are two things:

1. An interesting technology.

2. A really important issue as a matter of political and legal philosophy.

If it weren't for the second point, I probably wouldn't even own a gun. I wasn't even that big a hunter back when I did live in a rural area, going deer hunting was mostly just an excuse to sit in the woods relaxing. Now, fishing I can really get into.

But, guns, they're kind of a political litmus test, a person's attitude towards them is absurdly revealing as to their view of the fundamental relationship between citizen and state; Are we really citizens? Or are we just subjects?

And it bothers me greatly to see that most of the Court is on the latter side of that fundamental divide.

[ReaderY]

This case was purely about statutory interpretation. Either there was no 2nd Amendment challenge to the statute, or the Supreme Court declined to hear it.

The Supreme Court didn’t presume, indeed it didn’t say, anything about the statute’s constitutionality.

[FDG]

The even bigger problem is the feds don’t have an enumerated police power to regulate guns. The Commerce/N & P clauses have lost all meaning. That is the true disease and this Act is just a symptom.

[ReaderY]

The shipment of a gun across state lines, which the manufacturers here unquestionably were doing, has been considered within Congress’ police power from the beginning, lomg before the expansion of the power in the 1930s. For example, prior to Prohibition courts held that Congress couldn’t regulate the possession or retail sale of alcohol, but they upheld laws regulating or prohibiting its transportation across state lines. To enforce the original FDA Act in the early 20th century, federal officials had to hold a stakeout on a state border and arrest people as they were carrying goods across it. But if they did this, the prosecution was upheld. Nobody disputes that these kit manufacturers in fact sold most of their goods in states other than the state of manufacture.

Moreover, Congress long had the power to regulate use of the mails. For example the Comstock Act, passed shortly after the Civil War and still in effect prohibited sending pornography, abortificients, and other goods through the mails (its prohibition of contraceptives was later repealed). Nobody disputes that these manufacturers mostly mailed their kits.

[Brett Bellmore]

Right, and if the law in question only applied to the transport of items in interstate commerce, rather than generally, and if the items didn't implicate a constitutional right, that would be decisive.

So, how do you think this case would have fared, if it was a 80% printing press kit being shipped without a mandatory serial number?

[jb]

To take the printing press concept fairly literally:

Essentially all modern (consumer?) printers use printer tracking dots to make it possible to identify which printer produced any given thing you'll see printed. This seems pretty analogous (likely more invasive) than requiring guns have serial numbers.

[wvattorney13]

This is a bit disingenuous. If ALL Congress was doing was regulating the mails or shipments across state lines your comment might be more on point.

But what it clearly does is prohibit the mere possession of these items anywhere in the country no matter where manufactured.

[FDG]

This is flat wrong as a matter of original meaning. Banning is different from regulating and Champion v. Ames was wrong. Of course Congress has always sought to go beyond the enumerated powers, but that says nothing about the Constitution’s text and structure. Neither the CC nor the N & P clause gives Congress a police power to ban guns—even if shipped. How they are shipped? Interference with their shipment? Sure.

[Longtobefree]

If it can't shoot a bullet as is, it isn't a firearm.
This is no harder than knowing men can't become women and the earth is not flat.

[Brett Bellmore]

And if it CAN shoot a bullet as it is, ownership of it is constitutionally protected.

It's like saying, "You can't ban a printing press kit if it doesn't function out of the box; If it can't print, it isn't a printing press!"

It misses the point, which is that banning printing presses is unconstitutional.

So is banning guns.

But that's not something a majority of the Court is prepared to accept right now, so expect a lot of rulings that don't make sense; They can't make sense, because making sense would force them to confront what they're doing.

[ReaderY]

[LawTalkingGuy]

No one banned guns here though? The new rules just required sellers of kits to comply with the same regulations as if they were selling guns.

[Noscitur a sociis]

Again, no one in this case was arguing that the rule was unconstitutional.

[wvattorney13]

I get that. I think the point of some other posters is that if it were ANY issue but guns, the unconstitutionality would be conceded to be so obvious that there would not be a statutory interpretation issue.

But because it is guns and we have justices on each side who won't apply Heller in an honest fashion, we tiptoe around the edges and come up with these replacement arguments.

[JoeFromtheBronx]

So only Alito and Thomas will be the True Heller justices, with Alito (see Rahimi) sort of a squish?

If we are going to be cynical, justices are going to be concerned about their preferred rights. Alito is going to be more squirrelly about some non-2A rights, for instance.

[wvattorney13]

I'm speaking more generally. If the law was that no black people could speak in public, there would not be a statutory debate over who qualifies as black or whether private property open to some members of the public is public enough.

There would be an immediate observation that such a law is unconstitutional, even if we could posit that it could be properly applied to those blacks in prison.

These legal subterfuges are an excuse not to deal with the real issue. Now, I'm all for a court not reaching out to find things that they don't need to, but that is not the same as willful blindness.

[not guilty]

What do you posit to be "the real issue" in the lawsuit here, wvattorney13? The plaintiff is the master of the complaint, and courts do not address issues not raised in the pleadings.

[not guilty]

Still waiting, wvattorney13. What do you posit to be "the real issue" in the lawsuit here?

[wvattorney13]

Did I not reply by your deadline? Courts, when they don't make a concerted effort not to do so, typically take judicial notice of larger issues being raised.

To continue the analogy, do you think if someone was enslaved and brought suit in U.S. District Court that he should be freed because he was not of African descent, and said nothing more, that the judge would just throw his hands up and say that he just couldn't go outside the pleadings?

[Katall]

This regulation is not like stopping people from doeaking. It is more like saying that beating people up is not protected speech. Or saying that governments can regulate when proole speak.

There are allowable restrictions on speech. There can be allowable restrictions on arms.

[Brett Bellmore]

It's nothing at all like saying that beating people up is not protected speech. Because there's no beating up involved. Beating up actually causes harm, after all.

That's the fundamental difference between speech regulation and gun regulation: Speech regulation is only permitted where there IS harm. Gun regulation is permitted over the mere potential for harm. Just making harm a bit easier is enough.

It's a fundamental, and IMO illegitimate, difference in how the two rights are treated legally. Generally, the exercise of rights can only be prohibited where it causes harm, or at least carries an unreasonable risk of harm. You aren't prohibited, for instance, from having a large paper magazine on your laser printer, just because a counterfeiter would find it helpful.

But a large cartridge magazine on your gun? Oh, yeah, that gets prohibited.

For guns, a tiny potential for harm suffices. A regulation may infringe the exercise of a hundred or a thousand innocent people for every criminal it inconveniences, and the judiciary will approve it. A feature may have obvious legitimate uses, and the judiciary will approve of suppressing it.

Only the 2nd amendment gets this treatment, it's still the red headed stepchild of the Bill of Rights.

[Katall]

The harm is that guns without serial numbers are hard to trace. Whether one thinks that is speculation or not sufficient to support the regulation of weapons is a matter of opinion.

[Miles Fortis]

"The harm is that guns without serial numbers are hard to trace."

How is that a 'harm' ? And to whom?

[wvattorney13]

The analogous restrictions on speech would be similar to restrictions on FIRING guns in certain areas.

The argument that X is not absolute does not mean that one's particular restriction on X qualifies as one of the allowable exceptions.

Also, under Bruen, it is the responsibility of the other poster to show how a serialization requirement is consistent with this nation's historical tradition of regulation of firearms.

[JoeFromtheBronx]

I'm speaking more generally.

You are NOW, but the original comment was limited to a comment about how the concern of "some other posters is that if it were ANY issue but guns."

As I noted, there may be "legal subterfuges" in many cases, but it won't just be about one issue. Different cases, different types of possible suberfuges involving different justices.

And, again, the case was 7-2. Are only two justices (one who nodded in a key case) really concerned about gun rights?

[wvattorney13]

Yes. The Court will not take its pronouncements in Heller and Bruen seriously. We've argued that in many threads and so have commentators on here.

[David Nieporent]

If it can't shoot a bullet as is, it isn't a firearm.

That is not the statutory definition.

(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; (C) any firearm muffler or firearm silencer; or (D) any destructive device.

[Michael P]

How many components of a zip gun does a store have to sell before it's required to register as a FFL?

[Brett Bellmore]

And the problem, as the complaint detailed is that the BATF's definition of "readily converted" is aggressively vague.

"Making matters worse, in support of its 8-factor definition’s focus on the amount of time it takes to create a functional firearm from a given product, ATF cites a series of cases that found weapons to be “readily” convertible into a functional firearm when they took as little as 12 minutes with a drill and as much as eight hours “in a properly equipped machine shop.”
87 Fed. Reg. 24,661 n.43 (citing Molso Italian, 443 F.2d at 463 and United States v. Smith, 477 F. 2d 399, 400–01 (8th Cir. 1973))"

I assure you that in eight hours in a properly equipped machine shop you could convert a rusted out engine block into a working receiver. By that standard anything more complete than a hunk of bog iron is a "firearm".

[DJK]

This hobbyist turned a block of aluminum into a lower receiver for an AR-15 (which is what is legally regulated) in under 5 hours. A modern CNC mill can do that in under 30 minutes. Gorsuch's opinion puts a lot of weight on conversion within a half hour. There you have it - a block of aluminum is regulatable as a firearm.

[wvattorney13]

It's the question they refused to answer. How readily is "readily" and by whom? Maybe you could work 8 hours in a machine shop and make a receiver, but I could be there 8 years and not. I have no knowledge about machine tools.

Does the law refer to you or me? A reasonable machinist? Or a reasonable person?

Gorsuch seems to get what the parties are debating but then shrugs his shoulders and ends it.

[not guilty]

Brett, the document that you link to is not the complaint; it is some Respondents' SCOTUS brief on the merits. The brief curiously omits the questions presented, which were (per the petition for certiorari of the Attorney General):

1. Whether “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,” 27 C.F.R. 478.11, is a “firearm” regulated by the Act.

2. Whether “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,” 27 C.F.R. 478.12(c), is a “frame or receiver” regulated by the Act.

https://www.supremecourt.gov/DocketPDF/23/23-852/299970/20240207114349501_VanDerStok%20Petition%20v.2.6%201%20pm.pdf

The complaint filed in the Northern District of Texas is here: https://storage.courtlistener.com/recap/gov.uscourts.txnd.366145/gov.uscourts.txnd.366145.1.0.pdf

[wvattorney13]

If my car is out of gas, is it no longer a car?

[DJK]

If the operable components of your car are 80% finished, is it a car?

[wvattorney13]

These are the questions the Court ignored. While a car out of gas is still a car, and one 80% finished is not, the gravamen of the dispute was whether the BATFE can regulate as far down as it did. The Court simply ignored that. Where between out of gas and 80% finished can something be regulated as being a car? That was the question the Court refused to answer.

[Miles Fortis]

If an operable gun is out of ammo, is it still a gun?

Please,

[JoeFromtheBronx]

The reference to "can provide evidence of the law's meaning" does not tell me much. It "can" provide evidence.

If they want to uphold the statute, why wouldn't they point out such evidence? It helps their case. But, if they don't want to uphold it, they will find a reason around it. Since it is only a possibility. It would be almost silly to say such evidence it just meaningless.

Then, the opinion noted "consistent" understanding is relevant. Again, that is a sensible rule, but how firm will it be followed?

[wvattorney13]

This seems like the new playbook to defeat any challenge that the Court doesn't want to deal with: the Salerno "no set of facts" test.

Because something missing one screw could be properly regulated under this rule, we uphold the rule and go away, while we ignore the crux of the parties' dispute.

The Court admits that the new rule goes far further than the old, and the dispute is about how far the new rule goes. But since there are some non-objectionable applications of the OLD RULE, we can put this case in the books and go have a beer. Such an attitude is not good for the public, the bar, or the reputation of the Court.

[Katall]

that is because it was a facial chellenge. I other words, the Plaintiffs said it would be invalid in all instances. They can still bring as applied challenges for specific cases where they think it would not apply. I am not a big fan of the distinction.

[wvattorney13]

But that card is played arbitrarily and done in a malicious manner. Did Obergefell get shot down on a facial challenge because in some cases two men who are closely related, already married, or are minors can be forbidden from marrying one another? So everyone bring as applied challenges?

Of course not. That's only done when a judge wants to dodge the issue.

[Dan Schiavetta]

Under Trump we really will have agency heads who confuse smog with laughing gas. So it’s just as well that Chevron is dead.

[Kazinski]

Oh come on, if you can't see how any non-scientist can get confused between NO, N2O, and NO2, then you are a pedantic idiot.

Not to mention all three are considered pollutants including "laughing gas"

"Emissions of the greenhouse gas commonly known as laughing gas are soaring. Can we cut emissions from its greatest anthropogenic source?"
https://www.bbc.com/future/article/20210603-nitrous-oxide-the-worlds-forgotten-greenhouse-gas

From Wikipedia:

NOx gases are usually produced from the reaction between nitrogen and oxygen during combustion of fuels, such as hydrocarbons, in air; especially at high temperatures, such as in car engines.[1][2][3] In areas of high motor vehicle traffic, such as in large cities, the nitrogen oxides emitted can be a significant source of air pollution. NOx gases are also produced naturally by lightning.

NOx does not include nitrous oxide (N2O),[1] a fairly inert oxide of nitrogen that contributes less severely to air pollution, notwithstanding its involvement in ozone depletion[4] and high global warming potential."

[Dan Schiavetta]

I’m confused. Are you proving my point?

[Aubrey LaVentana]

What to me is facially missing here is a definition of 80 percent. Percent of material by weight or volume to be removed? Percent of machine time? And what percentage by that standard is the threshold between readily and not.

ATF exercised discretion to grant legitimacy to 80-percent items when they first appeared, and with the same discretion, they changed their minds later. To that I say, where are my reliance interests? Also, whose fuses will be blown when DJT exercises similar discretion?

[Sarcastr0]

The APA has a procedure to capture and examine reliance interests. If it is not followed you can have a case. Though seems small in this case.

And Trump is not a king, quit acting like he is.

[Aubrey LaVentana]

I'm not the one acting like DJT is a king. Nor am I upset that DJT is asserting executive powers. Professor Somin, on the other hand . . .

[ReaderY]

The irony here is that what the Supreme Court ruled is that these kits are guns. The people vigorously objecting to this ruling on 2nd Amendment grounds might want to consider the implications of their objections. If these kits are not guns, that means the 2nd Amendment gives them no protection at all, and nothing stops Congress from banning them completely, not just limiting their legal sale to situations where it would be legal to sell a gun.

[Brett Bellmore]

Really? Would you apply that reasoning to printing presses?

Constitutionally, guns = printing presses. They're the essential physical means to exercise an enumerated constitutional right.

Government can license the manufacture of printing presses, require that they have serial numbers and changes of ownership be tracked? And apply this system to anything that might be made into a printing press, too, to make it hard for anybody to own a printing press without the government's knowledge?

The very idea is absurd! And yet, the government is doing exactly this when it comes to guns, and guns = printing presses.

The only reason the Court would give approving of this even a moment's thought is that the Court's members approve of people exercising 1st amendment rights, and on some level, don't particularly like people exercising 2nd amendment rights. And so they don't particularly mind if the 2nd amendment is infringed, so long as it's not totally obliterated. (Actually, 3 of the justices would be fine with total obliteration, too.)

[ReaderY]

Guns are not printing presses.

They not only are but always have been considerably more limited.

A 7-year-old has a first amendment right to wear a t-shirt or button in school with a printed message of his choosing, with some limitations.

But a 7-year-old has no right whatsoever to bring a gun to school.

The difference is as simple, and as stark, as that.

Claiming the two are in any way the same is nonsense.

[Brett Bellmore]

No, they have NOT always been considerably more limited. At the federal level we had no gun control at all until the early 20th century. Such state gun control as we had was mostly Jim Crow laws, nominally applying to everybody, in reality only enforced against minorities.

We're talking about a law requiring serial numbers on "firearms". It wasn't enacted until 1968!!!

It's presentism, really. People look around at the high level of regulation of firearms, and don't realize that, historically, it's completely anomalous. That people used to fly with firearms as carry on baggage. That you used to be able to buy machine guns mail order, and have them delivered straight to your house. That high schools had rifle clubs.

The government went to war against gun ownership in the late 20th century, (Basically after the Kennedy assassination.) and people with no historical perspective think the present level of gun control is normal. When it's not remotely normal for this country.

[wvattorney13]

The necessary prerequisites for exercising a right have always been considered part of that right. Can bibles be outlawed under the theory that a person can still practice religion?

[Kazinski]

The good news is the ATF can reinterpret the statute.

[Brett Bellmore]

That's the bad news, too, though.

Sure, for the next 3.5 years or so, the BATF is likely to be somewhat reasonable, at least as reasonable as an agency whose mission is infringing a constitutional right can be.

After that? Who knows. The Court has left them enough wiggle room to try to completely shut down home manufacture of firearms.