New Jersey AG leads blue state coalition in support of Biden's "ghost gun" rule

New Jersey AG leads blue state coalition in support of Biden's "ghost gun" rule
AP Photo/Susan Walsh

Joe Biden’s executive action that would require manufacturers of DIY gun-making kits to serialize the unfinished frame or receiver before offering them for sale and mandating that buyers undergo a background check beforehand is set to take effect next month, but the rule is also being challenged in federal court in Texas, where a company called Division 80 launched a lawsuit back in May to overturn the law and block its enforcement while the case is making its way up to the Supreme Court.

Now acting New Jersey Attorney General Matthew Platkin and 17 other Democratic AGs have taken the somewhat unusual step of filing an amicus brief at the trial court level, arguing that the law should be allowed to take effect, arguing that the ATF’s new definition of a firearm, which now encompasses even partially completed frames and receivers, fits squarely within the agency’s congressional mandate in the Gun Control Act of 1968.

This interpretation is reinforced by the Act’s history and context: ending “mail order murder.” At the time, Congress and the public were reeling from the high-profile murders of President John F. Kennedy, Martin Luther King, Jr., and Robert F. Kennedy, whose deaths focused attention on mail-order guns and helped pressure Congress to act.

Congress thus passed the GCA to curb easy access to these deadly weapons and solve the “interstate mail order gun problem.” (citing an unpublished report from Senator Thomas Dodd). The GCA must be read in light of that context and overall scheme. That means adopting a commonsense, functional understanding of “firearm” that considers proximity to full use and recognizes the crucial anticircumvention role that the GCA was designed to play.

… If the GCA was crafted to solve a circumvention problem presented by mailorder guns, then it must also be read to solve an identical circumvention problem presented by ghost guns. Indeed, the Supreme Court has instructed courts to interpret the GCA practically, to focus on “substance” and not “empty formalities.” Abramski, 573 U.S. at 180. By updating the GCA’s critical definitions to cover advances in firearms technology, the Final Rule is faithful to that guidance.

Here’s the problem with that argument. The GCA defines a firearm as “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,” or “the frame or receiver of any such weapon.” Note that the frame or receiver is specifically singled out as the key component of what makes a gun a gun. Congress could have written the GCA to say that a firearm also encompassed partially completed frames or receivers, or but it didn’t do so because a frame that’s 80% completed isn’t finished. What Biden’s new rule attempts to do is to give the government the power to treat things that could become a gun as if its a firearm already, which Division 80 and its attorney Michael Sullivan (a former acting director of the ATF) argues goes far beyond Congress’ intent back in 1968.

If item A can readily be made into item B, it is by definition not yet item B. The Final Rule abuses the English language in order to expand ATF’s regulatory jurisdiction to cover materials that can “readily” be made into regulated products. This attempt to drastically expand ATF’s regulatory jurisdiction is in excess of ATF’s statutory authority. In classification determinations issued to manufacturers, ATF has stated that receiver blanks do not meet the definition of a regulated “firearm” under federal law. ATF has defended these classification determinations in litigation brought by gun-control activists.

But the Final Rule expressly repudiates ATF’s prior classification determinations: Prior determinations by the Director that a partially complete, disassembled, or nonfunctional frame or receiver, including a parts kit, was not, or did not include, a “firearm frame or receiver” under § 478.11, or “frame or receiver” under § 479.11, as those terms were defined prior to April 26, 2022, shall not continue to be valid or authoritative after that date. Such determinations shall include those in which the Director determined that the item or parts kit had not yet reached a stage of manufacture to be, or include, a “firearm frame or receiver” under § 478.11, or “frame or receiver” under § 479.11, as those terms were defined prior to [April 26, 2022].

ATF’s complete reversal of its legal position is arbitrary, capricious, and an abuse of discretion.

The phrases “partially complete,” “may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,” and “stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon” are so vague as to make it impossible for manufacturers, distributors, and customers to understand which product designs are regulated by the Final Rule and which are not. Among other things, this creates extreme uncertainty and will cause prolific waste in determining which facets of the firearms manufacturing supply chain require a federal firearms license. This uncertainty will force companies involved in the supply chain for manufacturing firearms to withdraw from the industry.

These vague phrases, when combined with the Final Rule’s authorization of the ATF Director to “consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials,” effectively delegate to the ATF Director unbounded, unconstitutional discretion to determine by diktat which products fall within ATF’s jurisdiction.

There is no reason why the existence of “instructions” or “tools” would have any bearing on whether an item meets the legal definition of a firearm “frame or receiver.”

Note that Division 80 isn’t claiming here that Congress doesn’t have the power or authority to define firearms to include unfinished frames or receivers, just that Congress hasn’t given the ATF broad leeway to redefine guns so broadly and vaguely that anything and everything could be a gun if the agency decides it is. If the courts accept that argument (as I think they should), then Matthew Platkin and other anti-gun AGs are free to lobby for the law to be changed, but they should be calling on Congress instead of asking the courts to uphold the Biden administration’s power grab (and if Congress did pass its own version, I suspect that would be the subject of an entirely new lawsuit).

The new rule on unfinished frames and receivers is set to take effect on August 24th, which gives the U.S. District Judge overseeing the case some time to grant or deny the request for an injunction blocking enforcement of the provision. I doubt we’ll hear anything from the bench before next month, but unfortunately the same can’t be said about the anti-gun AGs hoping to imbue the ATF with regulatory powers far beyond what Congress intended. They’re already blasting out press releases on their new brief, and they’ll keep bloviating in support of the new rule all the way to SCOTUS.