A federal appeals court Thursday tossed part of a rule targeting build-at-home “ghost guns” in a case advocates brought, holding the regulation exceeds “limits on agency authority in the name of public policy.”

The US Court of Appeals for the Fifth Circuit affirmed in part and vacated in part a lower court ruling that the Bureau of Alcohol, Tobacco, Firearms, and Explosives final “frame or receiver” rule targeting privately made firearms without serial numbers conflicts with the Gun Control Act.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control. But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature,” Judge Kurt D. Engelhardt wrote for the court.

ATF must operate within the statutory text’s limits until Congress acts, the judge said. “The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law,” Engelhardt said.

Criminal liability will be broadly imposed without Congressional input, which the government asserted, the court said. “An agency cannot label conduct lawful one day and felonious the next—yet that is exactly what ATF accomplishes through its Final Rule.”

Engelhardt, joined by Judge Don Willett, upheld the trial court’s order to the extent it holds unlawful the two challenged portions of the final rule, and vacated and remanded to determine the remedy for the plaintiffs.

Circuit Judge Andrew S. Oldham in a concurring opinion called the final rule “limitless.”

“It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this,” Oldham said.

Rule Challenged

A collection of manufacturers, dealers, individuals, and gun-rights groups challenged the rule, arguing the Biden administration is trying to change a 50-year-old understanding of the 1968 gun law. The lawsuit challenges the ATF “frame or receiver” rule, which targets privately made firearms without serial numbers, and the definition of “firearm” including weapon parts kits.

The rule aims to curb the purchase of serial-less ghost guns by including the disassembled frame of a handgun or the receiver of a long gun as a firearm under federal law. It treats gun kits to the same requirements as fully assembled firearms, meaning dealers must include serial numbers, conduct background checks, and keep records of transactions.

The US District Court for the Northern District of Texas in June invalidated the rule. A divided US Supreme Court on Aug. 8 allowed the administration regulate ghost guns while the legal fight proceeds. The appeals court vacated the district court order and remanded for further consideration of the remedy considering the panel’s holding on the merits.

States are seeking increased enforcement against ghost guns. The easy-to-assemble firearms are untraceable and have no restrictions on who can buy them, according to a lawsuit filed by California, the Giffords Law Center to Prevent Violence, and two parents of murdered students claiming the US government’s faulty interpretation of what constitutes a firearm is allowing so-called ghost guns to proliferate.

Everytown for Gun Safety advocates for gun control measures. Michael Bloomberg is the majority owner of Bloomberg Law’s parent company and serves as a member of Everytown’s advisory board.

Cooper & Kirk PLLC, Cooper & Scully PC, Mountain States Legal Foundation, and Firearms Policy Coalition represent plaintiffs Jennifer VanDerStok,
Michael Andren, Tactical Machining LLC, and Firearms Policy Coalition Inc.

Ashcroft Law Firm LLC, and Brian Poe in Fort Worth, Texas, represent intervenor plaintiff Blackhawk Manufacturing Group Inc., doing business as 80 Percent Arms. Flores Law PLLC represents intervenor plaintiffs Defense Distributed, Second Amendment Foundation Inc., and Not An LLC, doing business as JSD Supply. Bradley Arant Boult Cummings LLP represents intervenor plaintiff Polymer80 Inc.

The case is VanDerStok v. Garland, 5th Cir. App., No. 23-10718, order 11/9/23.