The October 2024 term of the Supreme Court is about to begin, and the second day of oral argument, October 8, will feature an important administrative law question arising from gun regulation—here the federal regulation of so called “ghost guns.” In Garland v. VanDerStok, once again, a federal agency with an extravagant view of its power has tried to resolve a policy debate that belongs to Congress, and once again it finds itself before the high court.
The Gun Control Act of 1968 (GCA) attaches background checks, serialization requirements, and other federal requirements to “firearms,” defined by statute as “(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,” in addition to “(B) the frame or receiver of any such weapon.”
Soon after the GCA was enacted, the predecessor agency to ATF defined “frame or receiver” as “[t]hat 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.”
That regulatory definition remained in place until 2022, when ATF promulgated a rule that among other things expanded the definition of frame or receiver to include “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” Moreover, firearms could now include “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.”
The “may readily be . . . converted” language is especially broad. In this case, the Supreme Court shall decide whether these two new regulatory provisions were permissible under the GCA.
In November, the Fifth Circuit held that ATF had flouted the GCA’s text. In support of its decision, the panel cited circuit precedent in Cargill v. Garland, which the Supreme Court would affirm months later, invalidating the ATF rule declaring bump stocks to be machineguns.
ATF did indeed go too far once again. The GCA covers “weapons” that can be readily converted into firearms, but not “parts” as a general matter. There is a part of a firearm included under the GCA’s definition of firearms—the frame or receiver—but parts kits that lack a frame or receiver are not in that category.
The Biden administration argues that the ordinary meaning of “convert” is to “transform.” But to treat something that must be transformed in order to function as a frame or receiver as a frame or receiver is itself a departure from the ordinary meaning of statutory text. In fact, the “readily be converted” language in part (A) of the GCA’s firearms definition is notably missing from part (B), which mentions just the frame or receiver and not anything that must be converted into it.
On top of the several layers of textual distortion necessary for ATF to defend its rule, courts also need to consider the rule of lenity: This is a criminal statute, and even if there were ambiguities in interpretation, they would have to be resolved against the government. As it stands, the ATF rule threatens to turn any number of law-abiding citizens into felons.
To give one example, the individuals, manufacturers, and distributors challenging the rule have noted that the receivers of the widely popular AR-15 rifles can “function as machinegun receivers” with “physical alteration involved in conversion” that “may be as simple as drilling a single hole.” Since a frame or receiver is itself considered a firearm under the GCA, equating anything that could be readily converted to a frame or receiver would implicate AR-15 owners in the National Firearms Act’s prohibition on machineguns. That echoed Judge Andy Oldham’s observation, articulated in his concurring opinion in the Fifth Circuit, that “ATF’s position” would make “millions of millions of Americans . . . felons-in-waiting”—a frightening proposition.
ATF’s rule also undercuts Congress, which had considered but ultimately did not pass a number of bills proposing to extend the GCA’s reach to frame or receiver precursors and parts kits. We have seen this script before, in Cargill and in other cases beyond the context of gun regulation: Congress declines to pass a new law, so a federal agency steps in to do so by fiat. Another cleanup job for the Supreme Court.