SCOTUS Should Strike Down the Biden Administration’s ‘Ghost Guns’ Rule

O ne must wonder if, at this late stage in Joe Biden’s imperial presidency, the assorted courts of the United States have asked their I.T. mavens to install a keyboard shortcut on their computers that, if pressed in anger, outputs a reminder that Article I vests all legislative power in Congress rather than in the presidency. In theory, such a tactic could save a great deal of time. In the controversy would come, and, as might a worker on a production line, the judge could simply press Ctrl + Fn + 1 to issue forth yet another admonition that, however passionate he might be about a given topic, the American president is still not a king.

Tomorrow, the Supreme Court will convene to hear oral arguments in Garland v. VanDerStok. Nominally, that case resolves around so-called ghost guns — firearms that, because they lack serial numbers, are more difficult for the state to trace. And yet, at root, VanDerStok is but one more in a seemingly interminable line of judicially mediated disputes that are testing the integrity of our constitutional separation of powers. Once again, the Biden administration has issued a rule that redefines a longstanding provision within federal law. And, once again, the people on the wrong end of that redefinition have had the temerity to notice. As is customary, the media’s coverage of the resulting argument has focused primarily on the policy consequences that are at stake, with those who support the rule insisting that it is necessary for the maintenance of public safety and those who oppose it warning that it represents an attempt to destroy the firearms industry. But these analyses, while interesting per se, are irrelevant to the question under consideration, which is whether the executive branch possesses the authority to order such a change in the first instance. Clearly, it does not.

Before one can regulate firearms in a statute, one needs to define what a firearm is — or, more specifically, one needs to define which part of a firearm has been deemed to turn a firearm into “a firearm.” Experience has shown that it is impractical for each and every component to be cast as the decisive piece, and so, for more than half a century, federal law has distinguished between ancillary elements such as triggers, magazines, barrels, and so forth, and sine qua non elements such as “frames” and “receivers.” If, for example, one wishes to assemble an AR-15, one is obliged to submit to a background check when acquiring only one piece of the gun: a large piece of metal, about the same size as an adult’s hand, to which all of the other key parts of the weapon are connected. That piece is called the “lower receiver.” Since the passage of the Gun Control Act of 1968, the term “lower receiver” has been held to cover only those finished devices that can be attached to the rest of the gun without further amendment. But, in 2022, the Biden administration attempted to alter this unilaterally. Henceforth, the ATF announced that year, the term “receiver” would “include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a . . . receiver.” Or, to put it another way: from then on, “receiver” would not just mean “receiver,” but would include anything that could, if further manufactured, plausibly become a receiver.

The purpose of this change was to extend the 1968 Gun Control Act to encompass what are commonly referred to as “80 percent lowers” — that is, to encompass pieces of receiver-shaped metal that cannot currently be attached to a trigger or any other key part of a rifle, but that are able to be so attached once they have been subjected to additional fabrication. Given its outright hostility to the right to keep and bear arms, one can comprehend why the Biden-Harris administration would covet this change. But that, as ever, is a separate matter from whether the law permits such a change to be made. And, much as the Biden administration might wish otherwise, the law does not. Indeed, there is nothing in the Gun Control Act’s references to “receivers” or “frames,” in the ATF’s previous definitions of those terms, or in the way that the words “receiver” and “frame” have been used in common parlance that even imply that those words can be read to include devices that are not, in fact, either receivers or frames. As the United States District Court in the Northern District of Texas observed in its opinion striking down the rule, Congress wrote the statute to cover guns or items readily convertible to finished guns, but only covered finished receivers:

The definition of “firearm” in the Gun Control Act does not cover all firearm parts. It covers specifically “the frame or receiver of any such weapon” that Congress defined as a firearm. 18 U.S.C. § 921(a)(3)(B). And that which may become or may be converted to a functional receiver is not itself a receiver. Congress could have included firearm parts that “may readily be converted” to frames or receivers, as it did with “weapons” that “may readily be converted” to fire a projectile. Id. § 921(a)(3)(A), (a)(4)(B). But it omitted that language when talking about frames and receivers.

As a result, in a majority opinion that unanimously upheld that decision, the Fifth Circuit concluded:

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.

Concurring with his Fifth Circuit colleagues “without qualification,” Judge Andrew Oldham took the time to flesh out the sheer absurdity of the linguistic plasticity that the Biden administration had put on display. Biden’s “Final Rule,” Oldham explained,

is 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.

While it is likely that this definitional problem would attach to any law that seeks to superintend what could be rather than what is, it is not wholly impossible to imagine a conscientious Congress rewriting the definition of “frame” or “receiver” in a manner that proved both workable and impervious to mischief. Thus far, however, Congress has done no such thing — and, because it has done no such thing, the law must remain in the same shape it has taken since it was passed 56 years ago.