Fifth Circuit panel hands Biden ATF major defeat on Final Rule
In a unanimous ruling that included a strong concurring opinion, a three-judge panel in the Fifth U.S. Circuit Court of Appeals said the federal Bureau of Alcohol, Tobacco, Firearms and Explosives illegally promulgated its controversial “Final Rule” on firearm receivers and remanded the case back to the District Court for reconsideration.
Writing for the court, Circuit Judge Kurt D. Engelhardt, a Donald Trump appointee, noted:
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”
The case is known as VanDerStok v. Garland. It is a federal court challenge of the ATF’s revisions of the 1968 Gun Control Act, changing the definitions of firearms to include the independent frame and receiver. The lawsuit was initially filed in August 2022, by Jennifer VanDerStok, Michael G. Andren, Tactical Machining, LLC and the Firearms Policy Coalition.
The lawsuit drew several intervenors, including the Second Amendment Foundation, which quickly cheered the ruling.
“We are elated with this unanimous court ruling,” said SAF founder and Executive Vice President Alan Gottlieb. “The ATF clearly exceeded its authority. This is a major victory for gun owners and the rule of law.”
“I’m particularly pleased with Judge Andrew S. Oldham’s concurring opinion,” added SAF Executive Director Adam Kraut, “because he goes into great detail about the history of the Final Rule, calling it ‘a vague, indeterminate, multi-factor balancing test,’ designed to discourage private citizens from abandoning the American tradition of crafting their own firearms. This victory underscores once again our mission to win firearms freedom, one lawsuit at a time.”
Judge Englehardt noted in his opinion:
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.
Only Congress may make the deliberate and reasoned decision to enact new or modified legislation regarding firearms based on the important policy concerns put forth by ATF and the various amici here. But unless and until Congress so acts to expand or alter the language of the Gun Control Act, ATF must operate within the statutory text’s existing limits. The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law. This it cannot do, especially where criminal liability can—and, according to the Government’s own assertions, will—be broadly imposed without any Congressional input whatsoever. An agency cannot label conduct lawful one day and felonious the next—yet that is exactly what ATF accomplishes through its Final Rule.
Elsewhere in the ruling, the judge observed, “After almost fifty years of uniform regulation, ATF, via the Final Rule, now purports to expand the terms ‘frame’ and ‘receiver,’ as they were understood in 1968, to include changes in firearms in modern times. But the meanings of statutes do not change with the times…ATF’s inclusion now of “partially complete, disassembled, or nonfunctional” frames and receivers materially deviates from past definitions of these words to encompass items that were not originally understood to fall within the ambit of the GCA…As such, the proposed definition is an impermissible extension of the statutory text approved by Congress.”
A couple of pages later, Judge Engelhardt bluntly states:
There is also a clear logical flaw in ATF’s proposal. As written, the Final Rule states that the phrase “frame or receiver” includes things that are admittedly not yet frames or receivers but that can easily become frames or receivers—in other words: parts. As the district court put it, under the Final Rule, “ATF may properly regulate a component as a ‘frame or receiver’ even after ATF determines that the component in question is not a frame or receiver.”…Such a proposition defies logic: ‘a part cannot be both not yet a receiver and a receiver at the same time.’
Then comes Judge Oldham’s concurring opinion, and he quickly cuts to the heart of what appears to be the intent of ATF’s change of the rule.
ATF’s overarching goal in the Final Rule is to replace a clear, bright line rule with a vague, indeterminate, multi-factor balancing test,” Judge Oldham stated. “ATF’s rationale: The new uncertainty will act like a Sword of Damocles hanging over the heads of American gun owners. Private gunmaking is steeped in history and tradition, dating back to long before the Founding. Millions of law-abiding Americans work on gun frames and receivers every year. In those pursuits, law-abiding Americans (and the law-abiding gun companies that serve them) rely on longstanding regulatory certainty to avoid falling afoul of federal gun laws. But if ATF can destroy that certainty, it hopes law-abiding Americans will abandon tradition rather than risk the ruinous felony prosecutions that come with violating the new, nebulous, impossible-to-predict Final Rule. (Emphasis added.)
A few pages later, in his recounting of the 1968 GCA’s history, Oldham wrote:
Congress has done nothing to change the statutory definition of “firearm” or “frame or receiver” since 1968. And for 54 years, the regulatory text stayed the same too. Then in 2022, without any direction or authorization from Congress, ATF changed everything.
This all happened on President Joe Biden’s watch, and many in the firearms community are convinced this rule change is just another manifestation of the president’s war on guns, which has been going on since he arrived inside the Beltway 50 years ago.
Biden is a perennial gun prohibitionist, and with each setback in court, he seems to double down. As the country heads into 2024, it remains to be seen just how far the Biden administration will push its agenda of citizen disarmament.