10/1/1924: Chief Justice Rehnquist's birthday.
Today in Supreme Court History: October 1, 1924
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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."
Waiving the Filibuster to Pass a National Abortion Bill Is a Bad Idea
Democrats will live to regret doing this if they have the votes to do it.
Vice President Kamala Harris has called for eliminating the filibuster to pass a national bill codifying abortion rights. Other top Democrats have called for abolishing the filibuster to pass a Supreme Court packing bill or voting rights legislation. Suspending the filibuster for your highest policy priorities, like guaranteeing abortion rights nationwide, is a very bad idea for four reasons.
First, if Kamala Harris and the Democrats abolish the filibuster on an issue as big as abortion rights for women, or to pack the Supreme Court, the Republicans will abolish the filibuster when they are next in power to ban public sector unions nationwide, to require school choice nationwide, to require tort reform nationwide, and to repack the Supreme Court. Democrats eliminated the filibuster of executive and judicial officers on the lower federal courts in 2013. As a direct result, when Republicans came to power and had a Senate majority in 2017, they eliminated the filibuster on Supreme Court nominees. This allowed the confirmations of Neil Gorsuch, by a vote of 54 to 45, of Brett Kavanaugh by a vote of 50 to 48, and of Amy Coney Barrett in October of a presidential election year by a vote of 52 to 48. What goes around comes around. Kamala Harris and the Democratic Party will rue the day they eliminated the filibuster to pass national abortion rights legislation or a Supreme Court packing bill.
This leads me to my second point, which is this: the one thing that we know for sure about the upcoming election on November 5th is that the presidential race and the races for control of both Houses of Congress are going to be incredibly close. If Democrats elect Harris by a small margin and win control of the two Houses of Congress by a small margin, they will not have a mandate to make a sweeping constitutional change in our system of government. Suspending the filibuster in the Senate would be a sweeping and probably permanent constitutional change in our system of government.
How would Democrats feel if a slim Republican majority in Congress and a Republican President elected by a slim margin required that voters in every state produce a driver's license or a passport in order to be eligible to vote in an election, or if a slim Republican trifecta banned mail in voting in every state because the secret ballot is compromised when people vote outside of polling booths, which it surely is?
To understand why keeping the filibuster is so important, consider my third point, which is this: One of the most important ways in which our Constitution and its system of checks and balances, which has traditionally included the filibuster, protects liberty and promotes economic growth is by creating certainty and predictability, which reduces the risk factor for investors. Few will want to start a business or try to invent a better mousetrap to make money in a country whose legal system might allow for the confiscation of that business or mousetrap income twenty years from now. Many authors will not write a controversial book or article or op-ed or give a speech if their country's legal system might allow them to be prosecuted for what they say twenty years from new.
Gender Equality Organization Leader Is Limited Public Figure for Purposes of Libel Lawsuit Over Her Performance
From Mason v. American Prospect, Inc., decided yesterday by Judge Loren L. AliKhan (D.D.C.):
Plaintiff Chataquoa Nicole Mason brings this action against Defendants The American Prospect ("TAP") and Julianne McShane. Dr. Mason alleges that TAP and Ms. McShane defamed her and tortiously interfered with her business relations when they published an article (written and reported by Ms. McShane) covering her tenure as President and Chief Executive Officer of the Institute for Women's Policy Research….
IWPR is a "national think tank" that "build[s] evidence to shape policies that grow women's power and influence, close inequality gaps, and improve the economic well-being of families." The organization was founded by Dr. Heidi Hartmann, who served as its long-time President and Chief Executive Officer. In 2019, IWPR's Board of Directors removed Dr. Hartmann from these roles because she was "abusing staff and otherwise creating a toxic work environment, engaging in racist behavior … and failing to adequately fundraise."
IWPR searched for a new President and Chief Executive Officer and hired Dr. Mason in fall 2019. Dr. Mason is an African American woman who holds a Ph.D. in Political Science, boasts "more than twenty years of research and advocacy experience focused on women's economic security," and has a "long track record of success in leadership positions." She entered her new role in a time of tumult, facing budget shortfalls, staff discontentment, and racism. Nevertheless, "she worked tirelessly to achieve major goals," like "dealing with the toxic work environment," raising sorely needed funds (including closing a budget shortfall of more than one million dollars), and increasing the public profile of the organization. Dr. Mason "participate[d] in public forums and networking events," "spearhead[ed] two major conferences," won an industry award, and "was named one of the World's Greatest Leaders by Fortune Magazine." …
At some point, Ms. McShane, a freelance reporter, began investigating Dr. Mason's leadership of IWPR…. In November 2022, TAP published the article, titled "A Women's Policy Giant Struggles Amid New Leadership," https://perma.cc/P9CY-3V3V. The article highlighted several of Dr. Mason's and IWPR's key accomplishments, including her recognition by Fortune magazine and IWPR's successful fundraising efforts. The article also includes the following statements relevant to Dr. Mason's claims:
Harris Scales Back Harmful Price Control Proposal
The narrower version put forward by her campaign is still bad, but much less so than the much broader one floated earlier.
Several weeks ago, in an article in The Hill, I outlined how both Donald Trump and Kamala Harris have put forward harmful economic policies that exploit widespread voter ignorance. One of the Harris policies I highlighted was a proposal for price controls on groceries. It's therefore only fair that I acknowledge she has since scaled back that proposal.
As originally described, Harris' proposal seemed to be a plan for broad, nationwide controls on grocery prices. The new version put out by her policy team, is still bad, but much less so than before. Michael Strain of the conservative National Review (which is not generally sympathetic to Harris) has the details:
There has been a great deal of confusion around Vice President Harris's plans to combat "price gouging." Last month, her campaign announced that, if elected, the vice president would push for "the first-ever federal ban on price gouging on food and groceries — setting clear rules of the road to make clear that big corporations can't unfairly exploit consumers to run up excessive corporate profits on food and groceries…."
This vague language — along with mixed messages from her advisers and surrogates — led many analysts and commentators to conclude that Harris would use a recent bill from Elizabeth Warren as a template for her policy. Senator Warren's bill is extremely broad and would give enormous power to the Federal Trade Commission to regulate prices.
If enacted, Warren's bill would, of course, be a disaster for the economy. If federal bureaucrats took charge of grocery prices, shortages would occur….
Does Harris support Warren-style price controls? For weeks, we've been left to speculate.
Yesterday [Sept. 24], the vice president released a policy book that answers this question: She does not support Warren-style price controls.
From Harris's book:
"Vice President Harris and Governor Walz's proposal—like many of the laws already on the books in 37 states—will go after nefarious price gouging on essential goods during emergencies or times of crisis. When an emergency strikes, the American people deserve to know the government can take on bad actors that take advantage of a crisis to excessively jack up prices."
The book makes two things clear: Harris would model her plan on existing state laws, not on Warren's bill. And her regulation would kick in only during emergencies….
To be clear, I don't think a federal price-gouging law is a good idea. Such laws at the state level are more defensible, but still questionable. Yes, cases of water became much more expensive in Texas following Hurricane Harvey. But if you were, say, a Colorado-based business that sold water, those higher prices for water in Texas meant that you wanted to stop selling water to folks in Colorado and to start selling it to folks in Texas. That $99-per-case price sent a signal to water sellers all across America that they should be sending more water to Texans than they normally do. The result: More water went to Texans, which was exactly what was needed following the hurricane.
But even though a federal price-gouging law isn't a good idea, it's not a terrible idea. It will likely have no real impact on consumers, producers, or economic activity.
I am less sanguine about Harris's scaled-down proposal than Strain is. What qualifies as an "emergency" or a "time of crisis" is far from clear. In recent years, presidents of both parties have abused "emergency" declarations to circumvent constraints on executive power in order to push through harmful policies, as with Trump's border wall funding diversion and Biden's student loan forgiveness program (eventually invalidated by the Supreme Court). When and if Harris tries to turn her new proposal into an actual bill, it will be important to keep an eye on whether and how the proposed law defines what counts as an "emergency."
In addition, as Strain points out, price controls are harmful even when there is an actual emergency. They tend to produce shortages of vital supplies precisely when those goods are most needed.
Nonetheless, it's worth noting that Harris's current price-control proposal is substantially narrower - and thus much less harmful - than the one originally floated in August. By contrast, Trump hasn't scaled back his even more harmful plans on immigration and tariffs.
It's also worth reiterating that either the narrow or the broad version of Harris's price controls would have to be enacted by Congress. By contrast, Trump could enact most of his most harmful ideas by unilateral executive action. As Trump himself recently put it, "I don't need Congress [to impose tariffs]…. I'll have the right to impose them myself, if they don't." That is one of a number of factors making his agenda more dangerous than Harris's, even though the latter also has serious flaws.
California Prohibits Legacy Preferences in College Admissions
A new law bars both public and private universities from privileging children of alumni in college admissions.
In debates over whether universities should (or should be allowed to) consider race in admissions, it is often pointed out that many universities give preferences to the children of alumni and university donors. It is also fairly noted that such preferences may have racially disparate effects (particularly at institutions that were formerly segregated).
As a legal matter, however, race-based preferences more suspect than other admissions preferences. Under current 14th Amendment's Equal Protection Clause doctrine, the consideration of race by state institutions is inherently suspect (and this standard has been applied to private universities through federal law). Not so many other characteristics that may be used in university admissions processes -- including relationships to alumni and benefactors.
Earlier today, California Governor Gavin Newsom signed a measure to prohibit legacy and donor preferences in college admissions throughout the state. Of note, the law will apply to both public and private universities, but does not impose meaningful penalties.
From a Politico report:
California's law, which will take effect Sept. 1, 2025, is the nation's fifth legacy admissions ban, but only the second that will apply to private colleges. . . .
Like other states, California won't financially penalize violators, but it will post the names of violators on the state Department of Justice's website.
California will also add to data reporting requirements that it implemented in 2022, when private colleges had to start sharing the percentage of admitted students who were related to donors and alumni. Schools that run afoul of the new law will also have to report more granular demographic information about their incoming classes to the state, including the race and income of enrolled students as well as their participation in athletics. . . .
Public universities in California won't be affected by the change. California State University does not consider legacy or donor ties, and the University of California system stopped doing so in 1998, two years after California voters banned race-conscious admissions through a statewide ballot measure.
Criminal Conviction Based on "Only Women Can Be Mothers" and "'Transing' Kids Is Abuse and Homophobia" Signs, …
displayed on defendant's car and on her fence facing neighbors who have a transgender child; an appellate court reverses the conviction on procedural grounds, without resolving the First Amendment issue.
Last Wednesday's decision of a Pennsylvania appellate court in Commonwealth v. Balcom (by Judge Alice Beck Dubow, joined by Judges Deborah Kunselman & Carolyn Nichols) involved a dispute between neighbors. O'Donnell and Collier, a gay couple, lived with their sons "and their daughter, K.H., who is transgender"; Balcom lived next door, "and she and Victim's [O'Donnell's] family have had an acrimonious relationship for several years. Appellant's backyard abuts Victim's backyard, with a fence along the shared property line."
Mr. Collier was parking his car on the street near their home after picking up their sons when Appellant [Balcom], who was in her car, displayed a sign in the rear window of her car that said, "only women can be mothers." The next evening, Victim and his family returned home to find that Appellant had placed a large sign on the fence facing their back yard, and K.H.'s bedroom window, that said "'transing' kids is abuse and homophobia[.]" The sign was only visible from Victim's house or yard and to anyone walking their dogs in the adjacent alley if they "crane[d] their necks."
Victim filed a private criminal complaint against Appellant, in which he referenced the backyard sign and stated that Appellant had been "harassing [his family] for 2 years." Accordingly, the Commonwealth charged Appellant with Harassment, a summary offense.
The Magisterial District Court convicted Appellant and sentenced her to pay a fine of $200. Appellant appealed and proceeded pro se to a de novo bench trial in the Court of Common Pleas ….
Today in Supreme Court History: September 30, 1857
9/30/1857: Justice Benjamin Robbins Curtis resigns from the Supreme Court after Dred Scott v. Sandford (1857).
Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule
The Supreme Court is set to decide whether the agency may expand criminal liability under the Gun Control Act.
On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms "firearm" and "firearm frame or receiver." This is the first of several posts in which I'd like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.
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" – in other words, to main part of the firearm to which the barrel and stock attach.
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 impetus for these new definitions is the political controversy over "ghost guns," a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as "80% receivers." Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.
Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers. Private individuals have always been free to make their own firearms without such federal restrictions. The new definitions have the effect of subjecting hobbyists to federal controls.
The Fifth Circuit held that ATF may not change the definition of "firearm" enacted by Congress and that its redefinition of "frame or receiver" failed to reflect the original, common understanding of that term. It thus ruled the definitions to be beyond ATF's authority and arbitrary and capricious.
In the Supreme Court, the government begins its defense of the Rule by asserting that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes." Not one of those italicized terms is even close to reality.
For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.
Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he served as a Firearms Enforcement Officer in ATF's Firearms Technology Branch (FTB), the division that determines whether partially-machined material that can later be manufactured into a firearm constitutes a "firearm" under the Gun Control Act.
In 2004, Vasquez was selected as the FTB's Assistant Branch Chief, and from 2008 to 2010, he held the Acting Chief and the Assistant Chief positions. He reviewed and approved hundreds of determinations of whether items were "firearms," the majority of which related to the manufacturing of receivers for AR-15 style firearms.
Quoting the government's brief in VanDerStok, Vasquez writes:
In reality, not just "anyone" with "basic tools" and "rudimentary skills" can take a parts kit and assemble a "fully functional firearm" at all, let alone in a "matter of minutes." Even assuming the hypothetical "anyone" had the tools needed to construct a firearm, they also need a level of skill, patience, and determination that eludes most non-experts.
The government focuses on the Polymer80 parts kit for a Glock-style semiautomatic pistol, but fails to explain the supposedly simple process. Vasquez provides a step-by-step summary of fabricating a functioning firearm from this parts kit. He notes: "On their first attempt, non-experts are frequently unable to even get their firearms to work after many hours of frustration. Many beginners don't know where to start."
The government also fails to discuss the complexity of building AR-15-style firearms from parts kits, which is a far more difficult task than building Glock-style handguns. As Vasquez explains, "Machining the fire control cavity of a lower receiver in particular," a task necessary to complete an unfinished receiver, "is a painstaking process that demands precision and requires technical expertise with uncommon tools."
Not surprisingly, Vasquez's explanations are highly technical and may be difficult to understand by persons who are not firearm experts. The illustrations in the brief are helpful. I won't even try to define all of the terms he uses. But that's why his brief is so significant. The Supreme Court should not be misled by the government's unrealistic claim that anyone can make a functioning firearm from a kit in minutes. The average person won't be able to make one at all.
Let's start with building a Glock-style handgun. As to the tools needed, Vasquez relates, "most everyday citizens (to say nothing of a prototypical street criminal), do not have all of them on hand." When California sued ATF in 2020 for not designating various "80-percent" parts kits as "firearms," the government stressed that tools such as end mills "are beyond the common household tools' that [California] repeatedly characterize as sufficient to complete this detailed work." California v. ATF, ECF No. 64, No. 20-cv-6761 (N.D. Cal. Jan. 11, 2021).
Austin Murphy, a California journalist, wrote an article "How easy is it to build a ghost gun?" The Press Democrat (Nov. 12, 2021). Vasquez quotes from the article in the various stages of the build to show it to be beyond the capabilities of non-experts without expensive, advanced tools. In fact, Murphy enlisted the aid of a gun machinist with expert knowledge and tools to do most of the work.
Murphy said he "felt a twinge of panic as he read the instructions," prompting him to seek the aid of an expert with a serious workshop. Vasquez writes that "even after turning the work over to experts three separate times—first to mill the frame, then to assemble the numerous parts, and finally to fix it when it jammed—it took the group more than seven hours to build a functioning firearm from a Polymer80 kit."
As Vasquez observes, "When the out-of-pocket cost of building a gun at home exceeds the cost of buying a new one, it bolsters the conclusion that homebuilding is an exercise mostly undertaken by hobbyists." For gangbangers with no skills or tools, the black market or theft does the trick instead.
To show how "anyone" can make a Glock-style pistol in minutes, the government refers to a video in which a skilled firearm expert uses a jig, drill bits, Dremel high-speed grinding tool, files, and sandpaper to fabricate a frame from a Polymer80 kit. That is followed by the installation of numerous intricate parts by use of roll pins.
It's not so easy. As described by Vasquez, one must first place the frame precursor in a jig in order to drill six holes; "if these opposite side pin holes are not aligned to within a few thousands of an inch, the firearm cannot be assembled." Next, one mills the top rail and then the barrel block, which is also difficult.
For those steps, Murphy enlisted a second firearm expert "to make sure I made no dumb, dangerous mistakes…." Murphy tried to install the slide lock spring and locking lever by himself, but that was "slapstick—witness my dozen or so attempts to drop the itty-bity slide lock into its elusive groove." Next came installation of the magazine release spring and button, combining the trigger assembly and dropping it into the frame, inserting the pins for the slide stop lever, and attaching the slide. (In the video cited by the government, the slide was already assembled.)
As Vasquez relates, "the moment the builder tries to rack the slide is often the first time that the builder learns something went wrong with the milling process." That happened to Murphy, who gave his malfunctioning pistol to his expert friend for a few more hours of troubleshooting.
Vasquez concludes the first part of the brief with the observation that "the central premise of the government's argument—that 'anyone' can build a fully functioning Glock-style handgun from a parts kit 'in a matter of minutes'—is simply wrong."
Part two of the brief describes the far more difficult process of building an AR-type firearm, which is why the government virtually neglects the subject. To complete an AR lower receiver from a partly completed "blank" that one purchases, the area that houses the trigger mechanism and hammer must be milled out and holes must be drilled for the selector, trigger, and hammer pins. As the government brief explained in California v. ATF, that requires "multiple drill bits strong enough to drill aluminum or polymer …, along with lubricants to reduce heat and prevent the drill bits from melting," as well as "specialized tools, such as end mills, [that] must be used to excavate the cavity to house the trigger and fire control mechanism." As Vasquez adds, one also needs a vise block, bench block, barrel rod, torque wrench, armorer's wrench, and more.
In response to California's argument that completing an AR-type receiver blank is just a "simple process," Daniel Hoffman, the then (and current) Chief of ATF's Firearm Technology Industry Services Branch (previously called the Firearms Technology Branch) explained how difficult it is. Hoffman is a retired Army Infantry sergeant with nearly thirty years technical experience in complex weapon platforms. He wrote:
I completed my first AR-type receiver in the fall of 2017, using a compatible AR-type fixture (e.g., a jig), a hand drill, and a drill press. The initial drilling of the fire control cavity took me approximately three hours. However, the dimensions on the cavity were not to specification, and I needed another hour and a half to get the receiver into a functional state. Even at four and a half hours, and with my considerable experience with firearms, the completed receiver build quality was substandard, with the fire control cavity not being cut to exact specifications.
Once the lower receiver is fabricated, there are over 100 parts to assemble to make a functional AR firearm. Expenses may cost anywhere from $500 to $3000, depending on the quality. As Vasquez concludes, "even if one spent the time and money to gather all of the necessary tools, equipment, and parts, they would still need the knowledge and skill to assemble a working AR-type firearm."
In sum, the government hopes to stampede members of the Court into believing that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes." The brief of former Acting Chief of ATF Firearms Technology Branch Rick Vasquez explodes that fantasy.
Today in Supreme Court History: September 29, 2005
Today in Supreme Court History: September 28, 1787
9/28/1787: Confederation Congress adopts Constitution and sends it to the states.
UNM Policy Used to Charge High Security Fees for Riley Gaines Talk Struck Down
The case was brought by Turning Point USA over the University of New Mexico's decision to charge over $5K (originally planned to be over $10K).
From yesterday's decision by Judge David Herrera Urias in Leadership Institute v. Stokes (D.N.M.):
Kenna Fleig, one of TP-UNM's co-presidents, submitted an event request form indicating that TP-UNM expected around 100 attendees for an event that would last 3.5 hours. The form noted that [the speaker, Riley Gaines,] travels with her own security, and the students did not want to request additional security. A week later, TP-UNM received an email from UNM informing them that they were required to request and accept university security…. Defendant Stump of the UNM police department … provided the students an invoice that listed the cost of security for the event as $10,202.50….
[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to assign every officer to the Gaines event, and whether it was because of the speaker or the inviting organization, he responded that "it's all based on individual assessments," that they were looking at the "individual," and that "there is not a criteria [sic]."
He also told the students that if an organization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were "not worried about the Barbie movie." He then said that security was "consistent" in how it assessed fees "to Turning Point" in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM assesses security fees on a "case-by-case basis." …
Short Circuit: A Roundup of Recent Federal Court Decisions
Veterinary speech, inflation reduction, and Inspector Javert's playbook.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition! Friends, if an FBI SWAT team ever raids your home by mistake, terrifying your family, because they couldn't be bothered to double check they had the right address, you might like to sue over it. And you might think the Federal Tort Claims Act, which Congress amended in 1974 specifically to ensure there's a cause of action for federal police raids, lets you do just that. But you'd be wrong, at least in the Eleventh Circuit, which earlier this year ruled (unpublished and per curiam) that FBI agents have the discretion to do anything or nothing at all when it comes to making sure they raid the correct house. Today, IJ asked the Supreme Court to step in, resolve some circuit splits, and tell the Eleventh Circuit that the Supremacy Clause doesn't conflict with federal statutes.
New on the Short Circuit podcast: Michael Perloff of the ACLU joins us to discuss how the D.C. Circuit said your "effects" receive Fourth Amendment protection for as long as the police hold onto them.
Virginia Court Rules Against Arlington "Missing Middle" Zoning Reform
The ruling highlights need for state-level zoning reform and stronger judicial protection of constitutional property rights.
Today, a Virginia state trial court ruled against Arlington County's "missing middle" zoning reform, which allows owners of land previously zoned for single-family homes only, to build multifamily residences, with up to four or six units. I previously wrote about the Arlington missing middle reforms (which I support) here and here. The new policy could do much to protect property rights, reduce housing costs, and make it possible for more people to move to Arlington and make use of the many job and education opportunities available in the area, thereby benefiting both themselves and the regional economy.
In addition to being a property and land-use scholar, I am also an Arlington County resident. When people claim I only advocate zoning deregulation in places where other people live, I respond by citing my support for "missing middle."
The Arlington Now website has a helpful summary of the ruling (the decision itself does not seem to be available online):
A circuit court judge has overturned Arlington's Missing Middle zoning changes.
Judge David Schell ruled against the county on four counts this morning (Friday), finding that the county failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the amendments.
As of today, the county cannot lawfully issue any more permits under the Expanded Housing Option, which allowed for the construction of up to six-unit buildings on properties that were previously zoned for only single-family homes…
Although a county expert testified that Arlington does, in fact, have sufficient infrastructure to support anticipated growth, the judge found "no evidence presented that the county considered likely overflows" and other localized impacts.
"It appears from the evidence that no consideration was given to the effect of additional sewage," he said.
On a more procedural note, the judge found that the County Board's original resolution to advertise zoning changes "contains no statement that the County Board is resolving to amend the zoning ordinance." He also found that the Board's ordinance "unlawfully delegated legislative responsibility" to county staff.
Finally, the judge found that EHO zoning fails to comply with tree planting and placement standards in the Virginia Code.
The ruling will almost certainly be appealed.
I won't comment on the merits of the decision, which largely turn on technical aspects of Virginia state law, many of which are outside my expertise. But I will note that rulings like this highlight the need for state-wide zoning reform, and for stronger judicial enforcement of constitutional protections for property rights. This is far from the only case where zoning reform has been undercut by state-law litigation. Another recent example is a dubious California court decision striking down SB 9—a significant law limiting single-family zoning
A statewide law could abrogate or at least limit the kinds of procedural hurdles relied on by the plaintiffs here. A state constitutional amendment would be even better. Sadly, Virginia has made little progress on statewide zoning reform, despite support from Gov. Glenn Youngkin.
Stronger judicial enforcement of state and federal constitutional takings clause protections for property rights would also be a big help. In "The Constitutional Case Against Exclusionary Zoning," a forthcoming Texas Law Review article, University of Wisconsin law Professor Josh Braver and I explain why most exclusionary zoning rules violate the Takings Clause of the Fifth Amendment. Part IV of the article explains how litigation to bolster judicial enforcement of the Takings Clause could work in tandem with political reform efforts. We published a shorter, nonacademic version of our argument in the Atlantic.
UPDATE: If you object to using state legislation or constitutional litigation to override zoning rules on the grounds that it undermines local autonomy, I refer you to my post on why "YIMBYism is the Ultimate Localism."
Revised Versions of Articles on "The Constitutional Case Against Exclusionary Zoning" and "Land Use Regulation" Now Available
Revised versions of both publications are now up on SSRN.
I recently posted substantially revised versions of two new articles on land use and property rights issues to SSRN. The first is "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver, forthcoming in the Texas Law Review). Here is the abstract:
We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.
Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.
We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.
The second is "Land-Use Regulation," a chapter in the forthcoming Routledge Handbook on Classical Liberalism (edited by Richard Epstein, Liya Palagashvili, and Mario Rizzo). Here is the abstract:
Land use regulation is a major function of every government in the world. It raises many issues for classical liberalism. This chapter provides an overview of three of the most important areas of land-use policy: the use of eminent domain to forcibly take property for government-approved projects, regulations that restrict property owners' use of their land, and the relationship between property rights in land and migration restrictions.
Part I covers the use of eminent domain to take private property, and arguments for its limitation to genuinely "public" projects, as opposed to coerced transfers between private owners. Advocates of the latter argue they are needed to overcome "holdout" problems. But unconstrained use of eminent domain is a serious threat to property rights and hampers economic development.
Part II considers regulatory restrictions on land use that do not involve physical occupation of property. There is a longstanding debate about the value of such restrictions and whether the government should pay owners compensation. The most significant regulatory restrictions of this type in many nations are zoning rules restricting housing construction.
Finally, Part III provides a critical overview of property-rights rationales for restricting mobility, particularly in the form of international migration. Such theories justify severely constraining the liberty and property rights of both migrants and natives.
In addition to contributing to this volume, I am also a contributor to Routledge Handbook of Libertarianism, edited by Jason Brennan, Bas van der Vossen, and David Schmidtz, and the Cambridge Handbook of Classical Liberal Thought, edited by M. Todd Henderson. Yet, I'm far from clear on what, if anything, differentiates libertarianism and classical liberalism. I explored that question in a previous post.
Previewing the Next Supreme Court Term (Updated)
A panel examining what is in store for October Term 2024.
On Tuesday, October 1, I will be participating in the Federalist Society's annual Supreme Court term preview event in Washington, D.C. Those joining me in examining what is in store for October Term 2024 will include Paul Atkins, Lisa Blatt, Erin Hawley, and John Moran. Sarah Isgur will moderate. Registration info is here.
For those interested in a deeper dive in the term's first environmental case, City and County of San Francisco v. Environmental Protection Agency, I moderated this teleforum webinar previewing the case with Prof. Robin Kundis Craig and Andre Monette.
And for folks in Northeast Ohio, I'll be doing a program on the Court with Pete Williams, formerly of NBC News, at John Carroll University on Monday evening.
UPDATE: The Federalist Society has posted a video of the Supreme Court program.
Restriction on Veterinary Advice Given via Telemedicine Violates First Amendment
From yesterday's decision in Hines v. Pardue, by Fifth Circuit Judge Don Willett, joined by Judges Cory Wilson:
Dr. Ronald S. Hines is a retired, physically disabled, Texas-licensed veterinarian who enjoys spending his golden years giving online pet-care advice to animal lovers around the world—often for free. Dr. Hines does not physically examine animals, perform surgeries, apply casts, splints, or bandages, administer vaccinations, or prescribe prescription medication. He merely sends emails. This would be no problem if the patients were people instead of pets. For humans, Texas law allows telemedicine without first requiring a face-to-face examination to establish a physician-patient relationship. Not so with animals, which require an in-person visit. Exam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard.
No one ever complained about Dr. Hines's online pet-care advice or alleged that it harmed a single animal. However, because Dr. Hines does not physically examine animals before sharing his expertise, the State of Texas considered some of his emails criminal offenses, going so far as penalizing him with a year of probation, fining him $500, and forcing him to retake the jurisprudence section of the veterinary licensing exam….
Today, we uphold Dr. Hines's First Amendment rights. We specifically conclude that the State of Texas is directly regulating Dr. Hines's speech and that this regulation fails to survive even intermediate scrutiny….
First things first, we must determine what the physical-examination requirement primarily regulates. The State does not dispute that Dr. Hines's speech is implicated. It contends that the physical-examination requirement restricts Dr. Hines's speech incidentally to the general regulation of conduct. So, we consider whether the requirement regulates Dr. Hines's speech directly or only incidentally to the regulation of his conduct. On the one hand, all Dr. Hines does is send emails—pure speech. But on the other, the law regulates his speech as part of the practice of veterinary medicine. {We are mindful that under "[Supreme Court] precedents, [s]tates may regulate professional conduct, even though that conduct incidentally involves speech."} …
[C]ircuit courts have, until recently, applied the so-called professional-speech doctrine to licensing regulations like this one. These courts, including our own, treated laws regulating professionals' speech as a separate category from non-professional speech, entitling them to less protection and exempting them from traditional First Amendment scrutiny. The Supreme Court, however, rejected this doctrine in NIFLA v. Becerra (2018), and instructed courts to apply the "traditional conduct-versus-speech dichotomy." But "[a]s it stands today, the relevant First Amendment doctrine is a mind-numbing morass of tangled precedents developed in contexts very different from professional licensing."
