The Volokh Conspiracy
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Second Amendment Roundup: Supreme Court Decides VanDerStok
Narrow decision leaves ATF regulation in limbo.
On March 26, the Supreme Court decided Bondi v. VanDerStok, holding that ATF's 2022 regulatory expansion of the definitions of "firearm" and "frame or receiver" is not facially void. The Court read the proceeding as a facial challenge only and offered no opinion on whether the regulation would be valid as applied to specific items. As long as the definitions may be validly applied to at least something, Justice Gorsuch wrote for the majority of seven justices, they are facially valid. Justices Thomas and Alito dissented.
The Gun Control Act (GCA) defines "firearm" in part 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 ATF rule added to (A) "weapon parts kits" that are "designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive." And it added to (B) "a partially complete, disassembled, or nonfunctional frame or receiver."
According to the Court, "this case does not ask us to resolve whether ATF's new regulations . . . may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a 'facial' pre-enforcement challenge to the agency's authority to regulate any weapon parts kits or unfinished frames or receivers."
That characterization is hard to square with plaintiffs' briefs in the Supreme Court. Indeed, plaintiffs expressly argued that "the Rule is invalid regardless of whether the GCA is read to include only functional frames or receivers" and regardless of the fact that the GCA does cover kits if they "contain[ ] a frame or receiver." See Pls. Br. 15, 35 (emphasis added). Justice Alito was therefore correct to state in dissent that the Court's treatment of plaintiffs' arguments was "unwarranted and extremely unfair."
Also unfair was the Court's twisting of a supposed "concession" made by counsel at argument—that they had no "quarrel" with the ATF's prior practice of regulating certain unregulated frames or receivers that had reached a critical stage of manufacture. But as the argument transcript makes clear, that concession was made with respect to the argument that plaintiffs should still win even if the GCA covers some unfinished frames or receivers—i.e., the argument the Court refused to consider. See Tr. at 59, 84. Whatever the reason, the Court chose to engage only a caricatured version of plaintiffs' arguments.
The Court noted that some kits "requir[e] substantial effort, specialized expertise, uncommon equipment, and a significant amount of time" before anyone can fire a shot, while others "contain all components necessary" for "a complete pistol" and "can be completed in perhaps half an hour using commonly available tools." The statutory definition in § 921(a)(3)(A) requires that the object be, first, a "weapon," and second, it must expel a projectile, be designed to do so, or be readily convertible to do so.
The Polymer80's "Buy Build Shoot" kit is said to be a "weapon" because it comes with "all of the necessary components to build" a Glock-variant semiautomatic pistol which might be built "in 21 minutes using only 'common' tools and instructions found in publicly available YouTube videos." That makes it capable of being "readily . . . converted to expel a projectile by the action of an explosive." (That definition is in the statute and did not originate with the regulation.)
The term "weapon" is appropriate, according to the Court, because people "use artifact nouns to refer to unfinished objects—at least when their intended function is clear." For example, "a rifle disassembled for storage, transport, or cleaning" is a weapon even though it must be reassembled. Similarly, one "might speak of the table he just bought at IKEA, even though hours of assembly remain ahead of him." But there are limits to these analogies:
Few would call a pile of unfinished logs a table. … Weapon parts kits vary widely. … Not all come as complete as the "Buy Build Shoot" kit. … And at some point a kit may be so incomplete or cumbersome to assemble that it can no longer fairly be described as a "weapon" capable of "read[y] … conver[sion]" into a working firearm.
That's the first time in Supreme Court history that the term "artifact noun" appears. The normal rule is to construe terms in a criminal statute narrowly against the government and in favor of the person to whom it may apply. That's the rule of lenity, which the majority says has no application to this case.
The Court upheld the parts-kit regulatory definition because it incorporated the statutory definition: "Because at least some weapon parts kits satisfy both of subsection (A)'s tests, § 478.11 is not facially invalid." The Court did not hold that the definitions in the regulation that are not found in the statute would necessarily be valid. That leaves the extra-statutory definitions subject to challenge as applied.
According to the court, "the statute nowhere says that a 'weapon' must have a fully functional frame or receiver," but even if it did, "some weapon parts kits may fit that description. Imagine a kit identical to Polymer80's in all respects, except that it has a complete frame." Of course, if it had a complete frame, it would be a firearm under statutory definition (B).
The Court poses the analogy of a "starter gun," which the statute defines as a firearm under (A) if it is a weapon that "can readily be converted to expel projectiles by the action of an explosive." In the case cited by the Court, US v. 16,179 Molso … Starter Guns, the block in the barrel could be drilled out and it would fire. That meant that the gun had an intact frame or receiver and so was a firearm under (B).
The Court next found that the GCA regulates some "partially complete" frames or receivers. Those terms are "artifact nouns," which "may sometimes describe not-yet-complete objects. Recall … your friend who calls his IKEA kit a table." Using the Polymer80 as an example, the Court states that one must remove certain plastic tabs, which a novice can do in minutes, and then a "few holes are drilled for the pins that hold [other] parts in place." (The Court doesn't mention it, but if those holes are not drilled to perfection, the item cannot function.) However, the Court cautioned:
we do not suggest that the GCA reaches, and ATF may regulate, any combination of parts susceptible of conversion into a frame or receiver with sufficient time, tools, and expertise. Like the term "weapon," the artifact nouns "frame" and "receiver" have their bounds. Some products may be so far from a finished frame or receiver that they cannot fairly be described using those terms.
Consistent with the above, the Court rejected the argument that if the GCA reaches some unfinished frames or receivers, the government might next classify AR-15 rifle receivers as machineguns under the National Firearms Act because they can be converted into machinegun receivers. "The government represents that AR-15 receivers do not 'qualify as the receiver of a machinegun.' . . . Our analysis of the GCA thus does not begin to suggest that ATF possesses authority to regulate AR-15 receivers as machineguns under the NFA."
That statement will be useful against lawsuits claiming that AR-15s are machineguns because they can be converted into them. An expert with proper jigs, tools, and machinery might be able to convert a semiautomatic receiver into a machinegun receiver in a short period of time; alternatively, installation of a machinegun conversion kit might be accomplished in minutes. Such capabilities do not change the status of an AR-15 as a semiautomatic firearm, and VanDerStok lays that issue to rest.
Finally, the Court declined "to address what weight, if any, ATF may lawfully give jigs, tools, and instructions when deciding whether a frame or receiver is present." That leaves that part of the rule open to challenge.
Concurring, Justice Sotomayor stated that if a manufacturer is uncertain about what is a firearm, it can ask ATF, and "a failure to do so might suggest willfulness on their part." That's inconsistent with the due process rule that a criminal law must give notice and that law enforcement authorities do not determine the meaning of the law.
Also concurring, Justice Kavanaugh addressed the "potential fair-notice problem," noting that failure to conduct a background check is punishable without a willfulness element but recalling the government's representation that it would likely not charge a person who "was not aware that he was violating the law." But prosecutors in the field won't even know about that concession.
Dissenting, Justice Thomas would have asked only whether the rule contravenes "clear statutory text" or "exceeds the [GCA's] legislatively-imposed limits on agency authority." But the majority "substitutes novel linguistic labels for traditional statutory interpretation; mistakes outlier definitions for exemplars; and improperly imports attributes of one provision into another."
According to Justice Thomas, the majority incorrectly followed the Salerno rule – which applies to statutes, not regulations – that a facial challenge must establish that "no set of circumstances exists under which the Act would be valid." Justice Thomas added:
If a regulatory definition survives APA challenge so long as just one item it covers also happens to be covered by the statute it purports to interpret, it is difficult to understand how an agency would ever promulgate an invalid definition. So long as it imports the definition Congress laid out in the statute, the agency can sweep in whatever additional conduct it wishes.
But Justice Thomas credited the majority for attempting to limit its method to the facts of this case, adding: "So long as lower courts do not equate an APA challenge with a 'facial' one, they are free to disregard the majority's analysis and hold that the Rule exceeds ATF's statutory authority." And here, the ATF regulation defines "frame or receiver" to include "objects that are not frames or receivers, but that may be 'converted' into them in the future." And the readily-converted language appears only in the definition in (A), not in the reference to frame or receiver in (B).
Moreover, as to ATF's definition of a weapon parts kit, "while an object that 'may readily be converted' into a gun qualifies as a 'firearm' if that object is already a 'weapon,' an object that is not already a weapon does not. As to another one of the majority's arguments, "Both starter guns and disassembled rifles usually have functional frames or receivers."
Justice Thomas concluded, "Nothing in the GCA suggests that the terms 'frame' and 'receiver' also include the materials that one could use to create them, or that parts including neither a frame nor a receiver could constitute a 'weapon.'" To the extent that any ambiguity existed, he would have resolved the case consistent with Thompson/Center Arms (which yours truly argued) and applied the rule of lenity.
Justice Alito dissented on the basis that the majority "decides this case on a ground that was not raised or decided below and that was not the focus of the briefing or argument in this Court." The question presented was whether ATF exceeded its authority under the GCA, and the government defended the rule as correct under the statute without mention of the Salerno test. If the "no-set-of-circumstances" rule applies to regulations, challengers could never prevail against agencies; "because it would take an extraordinarily obtuse agency to write a regulation so completely wrong as that, applying Salerno in the statutory context would seem to dictate that plaintiffs would always lose."
Nonetheless, Justice Alito agreed with the actual, narrow, and unremarkable holding of the majority that "a gun kit that is all-but-assembled" and "a frame that is as close to completion as possible" are firearms under the GCA.
The majority thus upheld the two regulatory definitions at issue as not being invalid in all circumstances in part because they incorporated some statutory provisions. The Court recognized the viability of as-applied challenges, which can still go forward.
At bottom, VanDerStok thus didn't resolve much in terms of possible future challenges. Specific ATF firearm classifications will still be subject to judicial review.
The scope of the 2022 regulations was far broader than the two definitions at issue here. As it did with other regulatory expansions, the Biden Administration sought to push the envelope far beyond what the GCA authorized. None of the 2022 regulations needed updating or were warranted by the GCA. I've covered some of the issues here.
In his Executive Order of February 7, 2025, President Trump directed the Attorney General to review all rules promulgated by the Department of Justice, including by ATF, from January 2021 through January 2025, pertaining to firearms, and to present a plan of action to protect Second Amendment rights. As part of this process, General Pam Bondi should initiate action to repeal in its entirety ATF's 2022 rule, 87 F.R. 24652.
