The United States Supreme Court heard oral arguments on Tuesday, October 8th in Garland v. VanDerStok, a case that centers around whether or not the ATF and the Biden administration have the legal authority to circumvent the legislative process whenever they feel they can appeal to what they present as a greater purpose. Executive vigilantism if you will. Garland v. VanDerStok resulted from the ATF publishing a “Final Rule” in April of 2022, changing the regulatory definition of “firearm” to include parts that could become functional frames and receivers via additional manufacturing, unilaterally shifting the legislative goalposts yet again. This rule is aimed at manufacturers of 80% receiver kits who have supported the right of private citizens to make firearms for personal use at home, a tradition that does not carry with it the obligation to serialize those guns. By forcing serialization of the kits prior to purchase, law-abiding citizens who choose to maintain their privacy would seek another option, effectively shutting down these manufacturers. Although attorneys representing the government, in this case, have deployed copious amounts of subterfuge in a sleight-of-hand attempt to deflect attention from the matter at hand to a more emotional ground for their actions, the heart of the suit surrounds 18 U.S.C. 921(a)(3) of the Gun Control Act of 1968 (GCA).
(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
The ATF and Biden administration have repeatedly attempted to justify the circumvention of Congress’ legislative jurisdiction by making “rules” backed by penalties and imprisonment as administered by the government. We have a term for that. It’s called creating law, and neither the ATF nor Biden’s Department of Justice have the legal authority to do that. If this argument feels familiar to you, it should. The ATF, seemingly impervious to learning its lesson, has recently seen “rules” struck down in matters of pistol braces, bump stocks, and forced reset triggers. So why continue beating the drum only to crash against the judicial rocks time and time again? The answer is simple. Although VanDerStok is a test of the Administrative Procedures Act (APA) and not the Second Amendment, the case is Second Amendment adjacent, adversely affecting gun owners and access to firearms, a goal the administration and the left, in general, will take any opportunity to chip away at. The government’s case essentially rests on the idea that they must get around the law to protect public safety, an argument I don’t think they would tolerate from a private citizen. Rule of law for thee, but not for me. I spoke with Bill Sack, Director of Legal Operations with the Second Amendment Foundation, who points out the GCA was passed in 1968, and Congress has had plenty of time to change it, but they haven’t.
By Darwin Nercesian
