How concerned should gun owners be about the DOJ’s new proposed rule attempting to redefine common gun parts? Very, according to Matthew Larosiere, director of legal policy at the Firearms Policy Coalition, who joins Bearing Arms’ Cam & Co today to discuss the details of the proposed rule.
According to Larosiere, the administration’s proposed rule is flawed that it could not only impact the Second Amendment rights of citizens, but could chill their freedom of speech as well. That’s because even uncompleted chunks of metal or polymer that aren’t yet considered a firearm under current federal regulations would be considered guns under the new proposal by the Biden administration, which in turn could impact even anti-gun artists like David Fay, who used some 600 “decommissioned” firearms to create a sculpture honoring the victims of the Route 91 shooting in Las Vegas a few years ago.
Larosiere says that the new proposal by the Biden administration is even worse than the bump stock ban imposed by DOJ and ATF during the Trump administration. In that case, Larosiere says, the agencies were at least somewhat limited in the scope of their rule-making by trying to re-define bump stocks as machine guns (a move which the Sixth Circuit recently declared null and void). Under the new proposal, the agencies are trying to redefine what actually makes a gun a gun by changing the definition of both frames and receivers.
“Yes, it’s in their purview to define that,” Larosiere acknowledged, but added, “how they define that here is by cross-referencing, effectively, to three other areas of the law and then injecting additional terms to define. The law just said ‘frame or receiver’. It didn’t say anything about partial frames, it didn’t say anything about future frames. That’s all it said. They insert this word ‘readily’ and then spend multiple pages describing what that means. That doesn’t sound like a good faith definition of a single word. That sounds like they’re trying to make new law.”
Making laws is the job of Congress, not executive branch agencies, and that could spell trouble for the proposed rule that the Biden administration is seeking to impose. In fact, the Sixth Circuit’s decision that the DOJ overstepped its authority in redefining bump stocks as machine guns could ultimately have a huge impact on this new proposed rule, because there’s now a split among the appellate circuits over the issue, which increases the likelihood that the Supreme Court will eventually rule on the case.
If the Supreme Court upholds the Sixth Circuit’s decision, that could spell trouble for the Biden administration, because as Larosiere says, this new proposal goes even further than the DOJ’s determination regarding bump stocks. Under existing Supreme Court precedent known as Chevron deference, courts can’t substitute their own opinion in place of a “reasonable” interpretation made by a government agency.
In the Sixth Circuit case, Senior U.S. Circuit Judge Alice Batchelder, writing for the majority, pointed to a “2014 U.S. Supreme Court decision in United States v. Apel, in which the nation’s high court ruled that ‘we have never held that the government’s reading of a criminal statute is entitled to any deference.'” The Biden administration’s latest proposed rule would also allow the DOJ and ATF to re-interpret criminal statutes to include unfinished frames and receivers, dramatically expanding and changing the scope and sweep of existing regulations. If the Supreme Court were to uphold the Sixth Circuit ruling, it seems difficult to imagine that they’d let stand an even broader attempt by the DOJ and ATF to rewrite the law.
That’s one of the reasons why Larosiere says there are some legally actionable items contained in the new proposal if it were to be adopted by the Biden administration. For now, however, he says the most important thing that gun owners can do is submit their public comment in opposition to the proposal once it’s been published in the Federal Register. Since the ATF released the proposal to the public late last Friday afternoon, I expected that the Federal Register would have published the text yesterday, but after looking through the website as well as regulations.gov, I haven’t been able to find the public comment portal, so the 90-day comment period hasn’t officially kicked off yet.
When that changes (which should be soon), we’ll let you know, but you can also search the regulations.gov website for 2021R-05, which is the number of the ATF and DOJ’s proposed rule. Once it’s live on the site, we can weigh in, and hopefully Second Amendment advocates will dwarf the supporters of this proposed rule over the next few months. We’re still a few months away from the Biden administration trying to turn this proposal into a regulation with the force of law, and we need to take advantage of the time that we have to let our opposition be known.