It could be more than a year before we know the answer, but with the Supreme Court's announcement on Monday that it will hear oral arguments in Vanderstok v. Garland this fall, it's still a question on the minds of many gun owners. On today's Bearing Arms Cam & Co, FPC Action Foundation president and CEO Cody J. Wisniewski expressed confidence that the Court will rule the ATF's rule violates the Administrative Procedures Act; striking it down and restoring the agency's previous and longstanding interpretation of the federal statute defining firearms. 

Wisniewski says the Vanderstok lawsuit is, fundamentally, a gun rights case, but it doesn't hinge on Second Amendment arguments. Instead, the Department of Justice is asking SCOTUS to decide two questions. First, whether “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” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and secondly, whether “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” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.

Now, that's the phrasing the DOJ used in its cert petition, but Wisniewski framed the issue a little differently. 

"The Gun Control Act has this four-subpart definition of 'firearm.' The first two are what's really relevant to this case. The first is a weapon that is designed or can be converted into an item that fires a projectile by means of an explosion. Subsection B is the frame or receiver of such weapon. Now what the ATF tried to do in regulating these things we in the industry call 80 percent lowers or 80 percent frames, and of course that phrase means nothing, it's just a convenient moniker... what the ATF is trying to do is read that 'readily converted' language from Subsection A into Subsection B to say that 'oh, we're also going to regulate these items that are regularly converted into frames and receivers." 

The problem with that, according to Wisniewski, is a simple matter of statutory interpretation. 

"When Congress or a lawmaking body uses words in one section and doesn't use them in another, then you have to assume that it didn't intend or want that language to apply in later sections," he said. If Congress intended the definition of a firearm to include things that can be "converted" into frames or receivers, it could have included that in Subsection 2 of the definition. It did not, and for decades the ATF interpreted the statute to not cover unfinished frames or receivers. 

As Wisniewski points out, that's the entire reason why an industry that creates unfinished frames and receivers exists; the ATF said that was perfectly acceptable. Only after Joe Biden took office and decided to use the ATF as his administration's primary cudgel against gun owners and our Second Amendment rights did the ATF reverse decades of previous guidance to declare that actually, unfinished frames and receivers should be treated as fully functional firearms after all. 

The rule change was made at the behest of the gun control lobby, who had actually filed a lawsuit against the ATF in the waning days of the Trump administration that argued the ATF was wrongly interpreting the GCA statute defining "firearms". The ATF defended their original interpretation in court, right up until it reversed itself and adopted the interpretation sought by anti-gun activists. 

"When the Department of Justice and ATF were defending their position initially, they used a lot of language that we've cited in our case that shows they've completely reversed their position. They used to interpret this correctly, they used to interpret it the way that it has to be interpreted, and the way we argue it must be interpreted. So, they actually kind of sunk their own ship in those cases somewhat, where they basically said 'yeah, these are two separate subsections, we can't apply words from one subsection to another'. Now they've tried to change their tune, but it was really telling in those early days before the new rule was out that it was interpreted in this way and that it has to be because there can only be this single application of the law."

If DOJ doesn't have the law on its side, expect the government's attorneys to craft their arguments around an emotional appeal to the nine justices; "untraceable guns" are becoming the weapons of choice for criminals, and even if Congress won't change the Gun Control Act to cover unfinished frames and receivers, you have to let us enforce the rule as we see fit so we can stop murderers from making their own firearms. 

Wisniewski says he expects the government will try to scare a majority of the Court into adopting that position, but he argues that unserialized firearms account for just a small fraction of guns that are used in crime. Even if they were the majority of firearms that were turning up at crime scenes, the Supreme Court ruled way back in Heller that the fact that handguns were (and are) the weapon of choice for violent criminals doesn't mean that it's constitutional to prohibit we the people from owning them. Moreover, there is a tradition of homebuilt firearms that predates the Constitution and the Second Amendment, and Congress has never seen fit to try to prohibit the practice. 

Those are Second Amendment arguments, and they shouldn't really come up in a case that's ultimately about the Administrative Procedures Act, but I have a sneaking suspicion that Biden's DOJ is going to do its best to conflate the two issues during oral arguments. I'm glad that Wisniewski and the FPC team agree, and have a solid rebuttal at hand if they need to counter that particular defense of the ATF rule during oral arguments. 

Be sure to check out the entire conversation with FPC Action Foundation's Cody Wisniewski in the video link below, and visit FirearmsPolicy.org if you want to join the Firearms Policy Coalition or help them challenge the ATF's rule on frames and receivers.