Category: Bureaucraps

Biden’s Proposed Ghost Gun Rule Still Not Officially Published

It was a week ago Friday that the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives announced a new proposed rule to broadly redefine “frames” and “receivers” under the Gun Control Act of 1968, a move that some critics say goes too far and amounts to the agency rewriting the law itself, which is up to Congress, not the executive branch.

Now, it’s not unusual for a couple of days to pass between a public announcement of a proposed rule change and its publication in the Federal Register, but a delay of at least a week is somewhat out of the ordinary. While none of the folks in the firearms industry that I spoke to about this wanted to offer their theories on the record, a few suggested that the Department of Justice and the ATF floated out the proposal last Friday as a trial balloon, but held off on formally publishing the proposal and starting the clock on the public comment period until they could gauge the reaction.

Well, they’ve had a week now, and as J.D. Tucille writes at Reason, the verdict from industry insiders is that the proposed rule is a mess.

An industry insider told me that the ATF obviously is trying to give itself latitude to determine whatever it wants about what constitutes a firearm without objective standards. This way it can evoke any interpretation that seems politically expedient at the moment.

But there are limits even to vague language. The ATF allows that an object must be “clearly identifiable as an unfinished component part of a weapon” to be subject to regulation and that “frame or receiver molds that can accept metal or polymer, unformed blocks of metal, and other articles only in a primordial state would not—without more—be considered a ‘partially complete’ frame or receiver.” At some point, by necessity, a component stops short of being a firearm part and escapes regulation.

That’s going to be interesting, since the current market for firearms kits and 80 percent receivers evolved in response to earlier ATF rules. Demand for the kits largely exists among people who oppose legal restrictions. The proposed revisions are part of an ongoing game of whack-a-mole between government officials and gun enthusiasts. What vendors offer in the future will be a response to the outer boundaries of these rules, not just the prohibitionist desires of the current administration or of ATF agents. The industry insider told me that the commercial market for DIY firearms components will ultimately be determined more by consumer demand than by politicians’ wishes. If buyers continue to seek products that help them make guns, sellers will find a way to keep them happy.

I encourage you to read Tucille’s whole piece, but the big takeaway is that even with these sweeping definitions of “frame” and “receiver” and “readily convertible” items, the proposed rule won’t stop people from making their own guns. 3D-printed firearms are becoming more popular, and any attempt to crack down on 80% frames and receivers will only cause even DIY gunmakers to shell out the few hundred bucks for a 3D printer of their own.

I have no idea why the ATF’s proposed rule hasn’t been officially published yet, but I suspect that when it finally appears in the Federal Register it may look slightly different than the document released back on May 7th. I also suspect that any changes that are made aren’t going to be nearly enough to satisfy gun owners and the Second Amendment organizations that are already weighing legal action if the rule is implemented.

In the meantime, I’m going to continue to watch for the publication of the proposed rule and will let you know once the 90-day window for public comment period is officially open, because it’s critically important that gun owners weigh in once we have the chance.

Biden Administrations’ New “Ghost Gun” Regulation May Be Illegal

The Justice Department’s [DoJ] new proposed regulations for “ghost guns” – i.e., guns made from kits the allow buyers to assemble firearms, and guns made using 3D printers – to require retailers to run background checks, and to force manufacturers to include a serial number to help trace such devices, may run afoul of a recent federal appeals court decision which sought to rely upon the same tactic of more broadly defining a statutory term, suggests public interest law professor John Banzhaf.

In order to accomplish its goal, DoJ would very substantially expand its regulations defining the statutory term “firearm” – and the related terms firearm “frame or receiver” – to include many smaller parts which could go into the assembly of a gun.

But, suggests Banzhaf, this redefinition of the statutory terms would be incredibly broad, and could well amount to a major re-writing of the statute, without any congressional action, by the Bureau of Alcohol, Tobacco, and Firearms [ATF].

Indeed, as the agency itself admits, “these courts’ interpretation of ATF’s [current] regulations, if broadly followed, could mean that as many as 90 percent of all firearms now in the United States would not have any frame or receiver subject to regulation.”

And as Attorney General Merrick B.Garland just candidly admitted to a House appropriations subcommittee, it was even unclear whether ghost guns “are defined as firearms themselves.”

It also concedes that the “ATF’s regulatory definitions of ‘frame or receiver’ do not expressly capture these types of firearms (i.e., split/multi-piece receivers) that now constitute the majority of firearms in the United States, and that “neither the upper nor the lower portion of a split/multi-piece receiver firearm alone falls within the precise wording of the regulatory definition.”

But when this agency tried to use the same tactic – dramatically expanding a statutory definition to give it more power to regulate firearms – the 8th Circuit Court of Appeals shot it down.

In Gun Owners of America v. Garland, the federal appeals court invalidated the Trump administration’s modest efforts at gun control; holding that a rule by the ATF banning “bump stocks” – attachments which permit rifles to be fired rapidly somewhat like an automatic weapon – went too far, and ruled that agencies will be given much less judicial leeway than in the past in re-interpreting statutes to achieve various goals.

In that case, the administration’s attempt to classify bump stocks as “machine guns”, so the agency could regulate these devices, went too far, and the agency’s interpretation was held to be no longer entitled to the traditional deference [Chevron deference] accorded decisions by the executive branch, says Banzhaf, who teaches the laws governing federal agencies.

So this new proposal to reclassify gun parts, or possibly even instructions for 3D printers to create these parts, is likely to run afoul of this new court precedent, since such a broad expansion of well understood terms (“firearm” and firearm “frame or receiver”), and its drastic consequences and expansion of federal regulatory power, would seem to be far more objectionable, both legally and by the gun industry, than the more modest effort to simply classify bump stocks as machine guns.

The same problem, and legal objection, would seem to apply even more strongly to this new attempt to redefine “firearm,” says Banzhaf. As the Gun Owners court explained:

“Congress could amend the statute tomorrow to criminalize bump-stock ownership, if it so wished. . . .But as judges, we cannot amend [the statute]. And neither can ATF. This is because the separation of powers requires that any legislation pass through the legislature, no matter how well-intentioned or widely supported the policy might be.”