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Second Amendment Roundup: The Supreme Court stays vacatur of ATF regulations.

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On August 8, the Supreme Court issued an order staying an order by a district court in Texas, which the Fifth Circuit had affirmed, vacating new ATF regulations that expand the definition of “firearm” beyond what Congress enacted in the Gun Control Act (GCA).  Justices Thomas, Alito, Gorsuch, and Kavanaugh would have denied the application for a stay.

The Fifth Circuit has also reversed an order denying a preliminary injunction against a different set of ATF regulations on the grounds that the plaintiffs are likely to succeed on the merits. The Fifth Circuit temporarily enjoined the regulations to allow the district court to consider the other preliminary injunction factors.

ATF adopted two final rules in 2022.  In the first, ATF expanded the definition of “firearm” far beyond that enacted by Congress.  In the second, ATF expanded the definition of “rifle” beyond that in the National Firearms Act (NFA) to include configurations that it previously deemed not to be rifles.  Both of these new regulations increase ATF’s grip on both the firearm industry and consumers, exposing them to a wider net of criminal prohibitions under the GCA and NFA.

The Fifth Circuit put the brakes on both sets of regulations.  While the primary issue in both cases is whether ATF has power to expand the definitions set by Congress, the Second Amendment keeps gurgling below the surface.  Here’s the backstory.

On June 30, 2023, in Vanderstok v. Garland, the U.S. District Court (N.D. Tex.) found the following definitions in ATF’s Final Rule invalid and vacated the Rule:

  1. The GCA defines “firearm” to include “the frame or receiver thereof,” which by ordinary meaning is a complete structure, onto which the barrel and other parts are assembled. ATF expands “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”
  2. The GCA defines “firearm” to include a weapon that shoots, is designed to shoot, or may be readily converted to shoot a projectile by action of an explosive. ATF expands that definition to include 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.”

On July 24, the Fifth Circuit found that ATF is not likely to prevail on the merits of its appeal and thus denied its motion to stay the vacatur order with respect to these provisions of the Rule.

Attorney General Merrick Garland then applied to the Supreme Court for a stay of the vacatur, which was temporarily issued.  Both sides filed briefs.

While most of the briefing concerns whether the agency had authority to expand the definitions enacted by Congress, VanDerStok also argues that the doctrine of constitutional avoidance counsels a narrow reading of ATF’s authority to manipulate the definition of “firearm” to avoid Second Amendment concerns.  The right to have arms implies the right to acquire arms, which includes making them oneself.  Applying N.Y. State Rifle & Pistol Ass’n v. Bruen, there is no historical tradition of regulating privately made firearms.

The government replies that no Second Amendment issue is raised: “The Rule does not prohibit anyone from possessing a firearm or making one at home; instead, it merely confirms that those engaged in ‘commercial sale[s]‘ of weapon parts kits and covered frames and receivers must abide by the Act’s longstanding and uncontroversial serialization, background-check, and recordkeeping requirements.”

On August 4, Justice Alito issued a stay to extend until August 8.  As noted, five Justices then voted to extend the stay pending final disposition of the case.

ATF’s second Final Rule concerns stabilizing braces that attach to handguns.  The brace attaches to one’s wrist, which according to its designer, enables a disabled or weaker person to hold a large handgun, such as an AR-15 type pistol.  In 2012 and periodically thereafter, ATF approved the brace as an accessory that does not change the handgun’s classification.

The NFA defines a “rifle,” inter alia, as a weapon made, designed, and intended to be fired from the shoulder.  Purporting to improve on the statutory definition, in 2021 ATF proposed a regulation under which, using a point system of features, most pistols with braces would become rifles with barrels under 16″ in length, requiring the registration thereof under the NFA.  But in the Final Rule adopted in 2022, ATF scrapped the point system as too confusing and adopted an even vaguer list of general characteristics under which a pistol with a brace is a short-barreled rifle.

On August 1, in Mock v. Garland, the U.S. Court of Appeals for the Fifth Circuit held that ATF’s Final Rule on pistol braces likely is invalid and temporarily enjoined its enforcement.  The Administrative Procedure Act (APA) requires notice and comment for proposed regulations, but the final regulation here bore no relation to the original proposal.  Not to mention that the rule is hopelessly vague.  So the court issued a temporary preliminary injunction against its enforcement (to last 60 days) and remanded the case back to the district court for that court to reconsider the preliminary injunction motion with likelihood of success decided in the plaintiffs’ favor.

However, instead of a nationwide injunction, enforcement is only enjoined against the specific plaintiffs, their customers, and members (including members of the Firearms Policy Coalition).  The court said that it is “uncertain how many persons are now subject to these injunctions or how the ATF would enforce the Final Rule against non-enjoined parties.”  ATF estimated that three to seven million pistols with braces were in circulation, but I’m advised that only 250,000 owners registered them under the NFA.

To date, Garland has not filed an application with the Supreme Court to vacate the injunction; it may be that Garland will not do so given its limited duration.

Concurring in Mock, Judge Don R. Willett wrote: “Rearward attachments, besides making a pistol less concealable, improve a pistol’s stability, and thus a user’s accuracy. Accuracy, in turn, promotes safety. Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer.”

Citing Bruen, Judge Willett added that “making common, safety-improving modifications to otherwise lawfully bearable arms” is likely protected by the Second Amendment.  He continued: “Adding a rearward attachment—whether as a brace or a stock—makes the pistol more stable and the user more accurate.”  Of course, if it’s actually a shoulder stock, it would be a short-barreled rifle (SBR) under the NFA.  Without going into the issue here, SBRs were included in the NFA in 1934 virtually by accident, not because they were “gangster” weapons.

Judge Stephen A. Higginson dissented from the Mock decision.  Aside from the APA issues, Judge Higginson made it a point to deny that braces offer “safety-improving modifications.” He quoted a plurality of the Supreme Court as having observed that the object of the NFA “was to regulate certain weapons likely to be used for criminal purposes,” and “the regulation of short-barreled rifles … addresses a concealable weapon likely to be so used.” That was from Thompson/Center Arms v. U.S. (1992), a case I argued and won against ATF that strictly construed the NFA definition of an SBR not to include certain configurations in that classification.  (As a fact, SBRs are rarely used in crime.)

Judge Higginson next suggested that SBRs are “dangerous and unusual” weapons that have no Second Amendment protection.  Moreover, nothing is banned under the NFA, which only imposes taxation and registration requirements.  He stated that the NFA is akin to the “shall-issue” handgun licensing systems that Bruen approved in its footnote 9.

Lastly, Judge Higginson opined that the NFA registration scheme had been upheld in U.S. v. Miller (1939), the Supreme Court’s most misunderstood Second Amendment case.  Actually, Miller only said that it couldn’t take judicial notice that a short-barreled shotgun was ordinary military ordnance and remanded the case to the district court to resolve that issue.  If it was, then by implication it was protected by the Second Amendment.  But if the NFA requirements would be valid as applied to a constitutionally-protected arm, Miller would have just said so.  But it didn’t.

Nothing came of the Miller remand, because Jack Miller had been murdered by then and his co-defendant Frank Layton copped a plea.

The bottom line: the Fifth Circuit’s decision in VanDerStok that ATF’s regulations on “firearms” are likely invalid stands, although the vacatur is stayed by the Supreme Court.  The Fifth Circuit’s decision in Mock that ATF’s regulations on pistol braces are likely invalid stands, but we’ll have to await Merrick Garland’s potential application to the Supreme Court for a stay against the injunction thereof.

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