Three of the conservative justices might side with the ATF in a case that shouldn’t be close.
Three of the conservative justices might side with the ATF in a case that shouldn’t be close.
I confess: I expected yesterday’s Supreme Court argument in Garland v. VanDerStok to be a nonevent and didn’t tune in to listen live. As I noted in my Supreme Court preview and as Charlie explained in more detail, the case has the Biden administration defending a 2022 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulation that tried to greatly expand the Gun Control Act of 1968 (GCA) in a novel and strained way — and that seemed to me likely to meet the same fate as the Trump-era ATF’s bump-stock ban that was struck down in June in Garland v. Cargill. All six of the Court’s Republican appointees joined the majority in Cargill. Two of the six (Chief Justice John Roberts and Justice Amy Coney Barrett) declined to keep in place the injunction staying the ATF’s rule in VanDerStok, but given their votes in Cargill and the weakness of the ATF’s argument, I chalked that up to Roberts and Barrett’s being gun-shy (so to speak) about stays, rather than to their being likely to side with the ATF on the merits.
Was I wrong? Following the argument, SCOTUSBlog, the New York Times, and Law.com all concluded that the signs in the argument pointed to a win for the ATF. What happened?
The Fifth Circuit explained the statutory background:
The GCA defines a “firearm” as: “(A) any weapon . . . 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.” [18 U.S.C.] § 921(a)(3)(C). As no definition for “frame or receiver” is given in the GCA, ATF previously defined a “frame or receiver” in 1978 as: “That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” . . . This definition remained unchanged for over forty years, until ATF issued the Final Rule in 2022. [Emphasis added]
Like the definition of “machine gun” in Cargill, this is an essentially mechanical definition, and the ATF under Biden is trying to expand it by what it can be made to do, not by how it is built or how it mechanically functions. The regulation does this by seeking to rewrite the definition of the “receiver” of a rifle to include kits that do not include a functioning receiver, but can be crafted into one. The theory is that people building the kits are creating unregistered “ghost guns” not subject to the rules for registration and background checks for owning them that apply to buying guns that are sold in interstate commerce.
The really glaring problem for the ATF is that the statute covers guns, it covers things readily converted to function as guns, and it covers certain specific parts of guns (i.e., the receiver), but it pointedly does not cover things readily converted into parts of guns. Congress could have said “the frame or receiver of any such weapon or anything which may readily be converted to a frame or receiver,” but it didn’t.
Justices Samuel Alito and Neil Gorsuch were clearly not sympathetic to solicitor general Elizabeth Prelogar’s argument, and while Justice Clarence Thomas showed less of his hand, it seems unlikely that Thomas (who wrote the Cargill opinion) would side with the ATF. Among the other three conservatives, Barrett seemed the most likely to side with the ATF. But the ATF will need another vote, and while both Roberts and Justice Brett Kavanaugh asked questions that should make the ATF’s critics nervous, it strikes me as premature to assume that the agency will win this case.
Justice Barrett
Alito, as usual, set the agenda with probing hypothetical questions to Prelogar:
JUSTICE ALITO: Here’s a blank pad, and here’s a pen, all right? Is this a grocery list?
GENERAL PRELOGAR: I don’t think that that’s a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.
JUSTICE ALITO: All right. If I . . . put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?
GENERAL PRELOGAR: No, because, again, those items have well-known other uses to become something other than an omelet. The key difference here is that these weapon-parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use . . .
JUSTICE ALITO: Okay. So that’s helpful. So your definition is a group of components that . . . can readily be converted into something and have no other use. They must have no other use in order to constitute that thing? . . . In that situation, they already constitute that thing?
I will note, as an aside, that this “it can become one, and it can become nothing else” definition is not how the Biden administration would define a human person. That aside, Barrett helped Prelogar push back at Alito’s analogy:
JUSTICE BARRETT: General Prelogar, I just want to follow up on Justice Alito’s question about the omelet. Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?
GENERAL PRELOGAR: Yes. And I think that that presses on the more apt analogy here, which is that we are not suggesting that scattered components that might have some entirely separate and distinct function could be aggregated and called a weapon in the absence of this kind of evidence that that is their intended purpose and function.
But, if you bought, you know, from Trader Joe’s some omelet-making kit that had all of the ingredients to make the omelet and maybe included whatever you would need to start the fire in order to cook the omelet and had all of that objective indication that that’s what’s being marketed and sold, we would recognize that for what it is.
And it doesn’t stretch plain English to say, I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them, especially under statutory language that refers to something like breakfast foods or things that can be readily converted to make breakfast.
Of course, that doesn’t fix the central problem that the statute speaks of convertibility into a weapon, but not into a receiver. But it does signal that Barrett is open to the ATF’s argument. She did, however, cite Judge Andrew Oldham’s warning in the Fifth Circuit “that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal.” Prelogar again responded that the ATF’s definition wouldn’t go that far because an AR-15 has a purpose other than being converted into a machine gun. That “purpose” test doesn’t come from the statutory language, but Barrett had the same problem when Peter Patterson (arguing for the challengers) cited the ATF’s prior test (which drew the line at things that required no “critical machining” to be converted into a receiver):
JUSTICE BARRETT: It doesn’t appear in the statute. It seems a little made up, right, the critical machining test. I mean, your other test, I think, has the problem of pulling a tab off the front and — and saying, okay, now it’s a frame or receiver, but it wasn’t before you pulled the tape. But the critical machining doesn’t really come from the statute; it’s just sort of a way of allowing for a de minimis exception, right?
Chief Justice Roberts
What if Barrett votes with the ATF? The government still needs one more vote. But Roberts didn’t say much of anything during Prelogar’s argument, and really the only time he showed his hand a bit was in pressing Patterson about whether unfinished receivers sold in kits are really that hard to convert, or served any other purpose than being converted into a receiver — thus, questioning the premise of the arguments presented by Patterson and some of the supporting amici (such as the National Rifle Association) that the ATF’s rule is an attack on the craft of gun-building:
CHIEF JUSTICE ROBERTS: What is the purpose of selling a receiver without the holes drilled in it?
MR. PATTERSON: Well, the — some individuals — just like some individuals enjoy, like, working on their car every weekend, some individuals want to construct their own firearm. So the purpose of selling it is to . . . assist and provide individuals with material with which they can do that.
CHIEF JUSTICE ROBERTS: Well, I mean, drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends.
MR. PATTERSON: . . . This is not [an] easy thing necessarily to do and particularly the Press Democrat article cited there, where the reporter engaged to show how easy this was and, in fact, showed that he couldn’t actually do it. He had to engage friends to help him complete this, that were expert in firearms . . .
CHIEF JUSTICE ROBERTS: I don’t know the skills of the particular reporter, but my understanding is, is that it’s not terribly difficult for someone to do this, and it’s certainly not terribly difficult to take the plastic piece out. . . . I’m suggesting that . . . he really wouldn’t think that he has built that gun, would he?
Even if Roberts is right, it’s not the job of the challengers to show that there’s some good policy reason to allow unfinished receiver kits to be sold. They just have to show that Congress allowed it. The fact that Roberts pressed on this point may be concerning, but I’d caution against over-reading this as evidence that he’s going to blow by the statutory language.
Justice Kavanaugh
The third possible gettable vote is Kavanaugh. Here’s the most important question he asked:
JUSTICE KAVANAUGH: Your statutory interpretation has force, but I had some concern at the [stay] stage, and I have some concern now about mens rea. And this is an agency regulation that broadens a criminal statute beyond what it had been before.
So what about the seller, for example, who is truly not aware, truly not aware that they are violating the law and gets criminally charged? What assurances can you give about mens rea, about instructions to the jury that the government would seek, and the like?
The question about mens rea (i.e., the state of mind to commit a crime) suggests, if anything, that Kavanaugh is skeptical — but his comment that Prelogar’s “statutory interpretation has force” would seem to suggest that he might side with the ATF. The other sign in that direction is that Kavanaugh appeared receptive to Prelogar’s argument that the new regulation was more consistent with “classification letters” — interpretations regarding particular designs submitted to the ATF — that had been handed down over the years:
GENERAL PRELOGAR: The whole point of this regulation is simply to put the regulated industry on notice of how the statute applies in that discrete context and how it’s always applied since the statute was enacted.
JUSTICE KAVANAUGH: And on that point, because you had a lot of classification letters that were out there, this was to collect everything and put everyone, as you say, on notice, adding a couple things, as you pointed out earlier, correct?
GENERAL PRELOGAR: Right. And so I don’t think that this is any vast expansion of the statute. We just think this is ATF’s long-standing interpretation with the addition —
JUSTICE KAVANAUGH: Some expansion. Some expansion.
GENERAL PRELOGAR: — only with the addition of looking at jigs. But . . . to be clear, that doesn’t change the meaning of the statute.
JUSTICE KAVANAUGH: Right.
Overall, the argument suggests that this will be a much closer case than it should be. And it may well go ATF’s way. But we’ve seen plenty of arguments before that launched confident and wrong predictions on the basis of less ambiguous questioning than this.