MILESFORTIS

Second Amendment Roundup: Supreme Court Should Hold its Decision in VanDerStok
The new Administration should notify the Court of its change in position on ATF regulations.

As of now, of the nine cases argued in the Supreme Court’s October calendar, five have been decided.  Still pending is Garland v. VanDerStok, which was argued on October 8.  Before rendering a decision, the Court should give the Trump Administration an opportunity to express its views of the case with the Court.  It’s a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) redefining and expanding the definitions of “firearm” and “firearm frame or receiver” that criminalizes conduct not made unlawful by Congress, with Second Amendment implications.

The new Administration is sure to hold views adverse to those presented by the Biden Administration. Indeed, the Plaintiffs’ arguments in the case are similar to those made by DOJ in defense of the previous, longstanding regulatory definition of “firearm” before the Biden Administration upended that definition in the Rule.

On February 7, the President issued the Executive Order Protecting Second Amendment Rights directing the Attorney General to examine all regulations and other actions of executive departments to assess any ongoing infringements on Second Amendment rights and to propose a plan of action to the President to protect those rights.  That includes rules promulgated by ATF and the positions taken by the United States in ongoing litigation that could affect the ability of Americans to exercise their Second Amendment rights.

Prompted by the Executive Order, Senator John Cornyn (R-Texas) and 29 other U.S. Senators wrote to ATF Deputy Director Marvin Richardson requesting that ATF immediately rescind several regulations promulgated by the Biden Administration, including the “so-called ‘ghost gun’ rule, which cracks down on law-abiding hobbyists who are exercising their Second Amendment rights to privately build firearms—a longstanding tradition that traces back to the Colonial Era.”  That’s the rule at issue here.

If the Supreme Court is on the verge of issuing an opinion in VanDerStok, it should delay to give Acting Solicitor General Sarah Harris an opportunity to review the matter and advise the Court of the new Administration’s position.  That office must be overwhelmed by the deluge of cases in which the district courts are enjoining actions of the President, such as the DOGE efforts to weed out fraud and abuse from the executive branch and the effort to exclude birth-right citizenship to unlawful aliens and temporary visitors.

The SG’s Office should act quickly to ensure that the Court is advised of the Administration’s views on VanDerStock.  If it doesn’t make this a top priority, it risks a decision that is uninformed by the Executive Branch’s position on a constitutional right exercised by millions of Americans.

The Department of Justice has already taken steps to ask courts to put cases on hold to give counsel an opportunity to advise the courts on the government’s position consistent with the Executive Order.  In Colon v. BATFE (11th Cir.), a challenge to ATF’s pistol brace regulation, DOJ filed a motion to postpone the oral argument scheduled for March 5 and to hold the appeal in abeyance.  Similarly, in Kansas v. U.S. Attorney General (D. Kansas), involving ATF’s “engaged in the business rule,” the DOJ submitted a brief requesting that the Court stay the case, including all deadlines on pending motions, in light of the Executive Order.

In VanDerStok, the Department of Justice should promptly file a letter to notify the Court that the position of the United States has been reconsidered and that the government’s previously stated views no longer represent the United States’ position.  It recently filed such a letter in United States v. Skrmetti, advising the Court that the new Administration would not have intervened to challenge Tennessee’s ban on gender-altering medical “experimentation” on minors.  The letter did not seek further “likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit.”

Here, it is unlikely that the Court would accept any further briefing from the United States, which in any event would likely duplicate the excellent briefing from the respondents and their amici.  I commented on two of such amici briefs here and here (which I coauthored).  Whatever alternative the Acting Solicitor General chooses, she should notify the Court quickly of the government’s change in position.

For a comprehensive review of the issue on the merits, 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.”