By Kevin D. Williamson
Thursday, July 07, 2022
A lawsuit filed by the Gun Owners of America against the ATF seeking to stop a new rule from taking effect asks many pertinent questions — some technical, some legal — but the question at the heart of it is one that is relatively easy to answer: Is the ATF actually Congress?
No, it isn’t.
The United States has a serious problem with violent crime. As I have argued at some length, this is not a problem that is likely to be much improved by means of firearms regulation — but, to the non-negligible extent that there is room for constitutionally sound reform of U.S. firearms law, it is a job for Congress, not for the ATF. The ATF has strayed from the implementation of regulations to the creation and implementation of new policies, which is properly the job of the people’s elected representatives in the national legislature.
The ATF’s current administrative pickle is this: It is more difficult than you might think to say just what a “firearm” is. The 1938 Federal Firearms Act defined a “firearm” in the familiar way, as “any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive” — but also added “or any part or parts of such weapon.
To muddy the waters even more, a “firearm muffler or firearm silencer” was defined as a “firearm,” too, under the 1938 law.
There was a good reason for defining gun parts as
guns, one that remains relevant today: If you want to control the sale of
firearms, then you can’t allow Bob to sell Sam 99 percent of a gun as “gun
parts” on Monday and the other 1 percent on Tuesday and pretend like a firearm
hasn’t been sold.
But the problem there should have been obvious and soon became obvious: Firearms have dozens and dozens of parts, and the “any part or parts” language made every screw, nut, bolt, etc. a “firearm” under the law. That created obvious absurdities (selling someone a pair of fancy mother-of-pearl grips to replace the standard walnut ones on his six-shooter would be selling him a “firearm”) and unworkable ambiguities (Is a scope a part of a firearm? If so, at what point does it become a part of a firearm? Is a scope that is used for a non-firearm such as an air gun but could be used for a firearm legally a part of a firearm and hence a firearm?). Firearms are commonly modified and customized (for instance, by installing new sights or a different trigger), and some parts wear out and need replacing; that 1938 law notionally made any part acquired for such a customization or repair a firearm for legal purposes.
The unworkability of this status quo was addressed in 1968 — or, at least, Congress tried to address it, replacing the words “part or parts” with “frame or receiver.” What is a frame or receiver? According to the law, it is “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.” The problem with that definition is that even in 1968, there were many firearms designs that had no single part that met the legal criterion of housing all three specified parts — hammer, bolt or breechblock, and firing mechanism — and most firearms made today have no single part that satisfies the criterion. The ATF has been careering around administratively for decades trying to do something with that poorly written law.
But the ATF’s regulatory walk is not random.
Joe Biden wants restrictive new gun-control measures, and he is unlikely to get them through Congress, which recently sent him a modest package that is likely to be its last word on the issue for some time. So the administration is attempting to use the ATF to achieve by means of regulation what it cannot achieve by means of legislation — something that amounts to a practical ban on homemade firearms and the basis for a program of universal serialization, something Second Amendment proponents have resisted as a first step toward a national firearms registry. Congress not only has declined to establish such a national registry but has in fact prohibited the creation of such a registry in no fewer than four statutes.
The ATF is out over its skis. It is also not very good at drawing up regulations.
The new ATF rule would take a step back toward the unworkable 1938 arrangement by instituting a protocol under which many different parts might be considered a “frame or receiver,” and hence a firearm under law. This is mostly meant to make it more difficult for private parties to build firearms at home in a noncommercial context — an activity that the ATF has no statutory authority to regulate. Even if it were constitutionally sound for Congress to pass a law prohibiting Americans from building their own guns at home out of commercially available parts — and it probably isn’t — Congress has in fact passed no such law. The ATF is trying to enforce a prohibition for which there is no legal basis.
One of the issues the ATF is trying to get around is the question of “unfinished” receivers — the “80 percent” receivers you may have read about. As noted, there is some difficulty in defining which part or parts constitute(s) a firearm, and specifying the receiver doesn’t completely solve the problem, because there is some difficulty in defining what actually constitutes a receiver. Some companies sell partially constructed receivers that require some substantial finishing work, and these do not qualify as full-on receivers for the ATF’s purposes. Some companies also sell jigs and other items used to finish those receivers — which is entirely legal. But the new ATF rule would complicate that. As gun writer John Crump points out, the rule would expose buyers and sellers to criminal prosecution for activities that are perfectly legal today — creating a new crime without any new statute:
According to the new regulation, Americans can still build their own firearms, but it does make it almost impossible to get all the parts to build a gun. Frames and jigs cannot be sold together. If a gun owner buys the items separately, the ATF will consider that structuring the purchases to get around the new regulation.
The other big issue is that if a company sells a frame, and a second company sells a jig, and a customer buys the items from both companies, those companies can be charged with conspiracy. The ATF will charge both companies with conspiracy even if the companies are not connected in any way besides a customer using both sites to purchase items.
This is foolish, impractical, and questionable at best as a constitutional matter. It would impose onerous requirements not only on buyers and sellers of firearms parts but also on third parties such as gunsmiths, who would face new serialization requirements on weapons that are temporarily transferred to them for repairs or service. That is because gunsmiths temporarily “acquire” firearms that are held overnight for service as the result of another silly and dysfunctional ATF rule.
Gun-control advocates love to talk about exotic issues: so-called assault weapons, “ghost guns,” etc. These account for a vanishingly small share of violent crime in the United States, and, for that matter, there is very little link between commercial firearms sales of any kind and violent crime: Of the criminals currently in custody who were in possession of a firearm at the time of their crime, only 2 percent acquired their firearms through a licensed dealer, while an almost nonexistent 0.8 percent got their guns from that other great progressive bugaboo, a gun show. Our main problems (beyond being a nation of violent maniacs who insist on murdering one another with or without firearms) are that we do very little to enforce the firearms regulations we already have on the books, and that our police and prosecutors are shockingly lazy and negligent when it comes to dealing with violent crime short of homicide, including violent crime involving guns. To take one illustrative example, in Philadelphia some 60 percent of gun-crimes cases were dismissed in 2021, up from only 30 percent in 2016 — and the Philadelphia district attorney is bragging about this as proof of enlightened administration.
The ATF likes the proliferation of petty regulatory prohibitions, because these create infractions that are relatively easy to police: Gun dealers have licenses, business addresses, regular hours, and detailed records, and the people who do business with them are by definition a generally law-abiding bunch. Running down straw buyers and chasing gangsters selling stolen guns out of the trunks of their cars in Chicago is hard work — because those guys do not have licenses, business addresses, regular hours, or detailed records, and are by definition not law-abiding bunch. If you are wondering why almost all of progressives’ big ideas on gun control are targeted at federally licensed dealers and their customers rather than at murderers and armed robbers and repeat offenders — a third of Baltimore’s murders are committed by killers already on parole or probation — the answer is that the ATF is a lot like any other bureaucracy: It is more inclined to look after its own institutional interests than to do the job for which its agents are paid.
But this isn’t really a debate about gun-control policy — it is a debate about who is going to write the laws. If we are to have major changes to federal firearms law, then those changes need to be changes in the law, not arbitrary policy initiatives created by people elected by no one and democratically accountable to no one. As the EPA has recently learned, the Supreme Court is casting an increasingly skeptical eye on executive-branch agencies’ cutting in on Congress’s lawmaking powers — even at Congress’s indolent invitation.
There is much that needs changing in federal law, from firearms regulation to environmental protections. But these reforms require legislation written and passed by legislators, not regulatory misadventures undertaken by unelected political appointees in the executive branch. On those grounds alone, the Gun Owners of America deserves to win its lawsuit against the ATF.
That would be a good start.
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