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PaperclipPerfector  9d ago (text post)   32795 thread views

Culture War Roundup for the week of March 31, 2025

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VanDerStok has dropped.

[previous discussions]

In 2022, the Biden administration released the "frames or receivers", often known as "ghost gun" rule, reinterpreting the Gun Control Act of 1968. This law controls much of what distinguishes a "firearm" under federal law for purposes such as sale, manufacture, transfer, gunsmithing, and licensing of the above. Notably, it had long had an exception for self-produced firearms, either for Commerce Clause reasons or to avoid crushing hobbyists. There was even a small industry, dating back decades, in producing 'kits', of incomplete firearms or tools for creating firearms that could be manufactured at home or in common workspaces: many got explicit ATF permission.

Though these things could make firearms, they were not themselves firearms... until 2022, where they retroactively were. The previous standard had a concept of "80% lowers", which, though not official, were so well-understood in the business that the ATF has a webpage (still active today, don't take legal advice from the government!) specifying exactly what level of remaining manufacturing would be required to turn a non-firearm into a firearm. While obstinately focused on specific manufacturers with especially easy-to-produce firearms kits, this rule was expansive, poorly defined, and often incompatible with the basic text of the statute: the ATF argued that it could apply to nearly any material, under nearly any conditions, based not solely on the actual product but even on its marketing material or separate tools.

Nor was this rule some minor paperwork technicality. The simple unlicensed manufacture for sale of a firearm can earn five years prison for each count, and the guidelines range with no previous criminal history goes from two to three years. And there's a whole set of downstream regulations and statutes that can add onto that.

What did the court decide?

There, remember, the GCA authorizes ATF to regulate “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.” Inhering in this language are two requirements. First, a “weapon” must be present. Second, that “weapon” must meet one of three criteria: It must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. As the Fifth Circuit saw it, §478.11’s provisions addressing weapon parts kits are facially invalid because no weapon parts kit can ever satisfy the statute’s two requirements. We disagree because, to our eyes, at least some kits will satisfy both.

There are some annoying procedural frustrations, here. Neither the questions presented, the cert petition, the response to cert petition, nor the district court opinion mention the challenge as "facial" at all. Only the last brief from respondents uses the word "facial", as the last allowed full filing, and does not do so under the defense that literally any reasonable application of the statute would prevent pre-enforcement challenges to any unreasonable ones. The SCOTUS opinion cites a BlackHawk complaint, but it and an appeals court opinion use the word only in the sense of the regulation being directly in conflict with the statute. SCOTUS does not provide a citation for the principle that APA challenges must show every possible enforcement of a law would be unreasonable; a dissent points out that the nearest similar matters are Salerno, Reno v. Flores, and INS v. NCIR, none of which were APA questions.

The federal government -- under Biden! -- specifically disavowed that "no set of circumstances" standard :

JUSTICE SOTOMAYOR: General, I want to know what our standard of review here is, because I can imagine a frame or receiver that is just a block of metal that -- not readily convertible. I can also imagine some part kits that require such tremendous amount of work that it doesn't qualify as readily convertible. So, if I can point to one item that wouldn't qualify, would -- could be swept up potentially by your -- by the new regulation, is that enough to defeat a facial challenge? Is it enough, or is that always an as-applied challenge?[...]

JUSTICE SOTOMAYOR: You -- you use the Reno -- you use the I -- our statement in INS versus NCIR, which basically tracks what you're just saying. But, in Reno versus Flores, we used a different standard and said that a respondent, to prevail, must establish that no set of circumstances exists under which the regulation would be valid. You didn't go that route.

GENERAL PRELOGAR: That would be an even more stringent standard [crosstalk] and I think a burden that Respondents can't surmount. But we think, even under the INS standard that we cite in our brief, it's very clear that there's nothing on the face of the Gun Control Act that [crosstalk] prohibits this approach to regulation.

What were the gun makers asked during oral arguments?

JUSTICE JACKSON: [...] Do you concede that under a facial challenge like the one that you've brought, your task is actually to demonstrate that your alternatives are the only permissible ones under the statute?

In theory, this isn't the last word on the matter. This was not a Second Amendment challenge to the regulation; you have to look elsewhere to see how absolutely doomed any such attempt would be. The majority opinion turning the plaintiff's question into a facial challenge does leave open as-applied challenges, should defendants be willing to risk their freedom at the court's pleasure, with the knowledge that even an imminent victory could be mooted and they be left with the bill.

It'd be funny to imagine the Trump admin taking some pro-gun funhouse mirror of the Obama-era suit-and-settle, or to willfully lose suits by arguing them as poorly as possible (Guilliani needs a job something to keep him busy, right?). We had a natural experiment on that, though, last time around. The punch line is that it didn't matter what the settlement said, because the contract was just a piece of paper.

Thankfully(?), there will be volunteers, whether they know it or not: the ATF's rules are so broad that they cover anything but a literal "unformed blocks of metal", and I'm not convinced that even the duration of the Trump admin will keep to the bounds of that rule. But I don't think they'll get anywhere with legal challenges; lower courts willing to defy Bruen are not going to read this opinion within its own four corners, and SCOTUS is punting on everything else anyway. Anyone that thinks the revival of the commerce clause would apply to them is gonna have a bad time no matter how square they are in Wickard v Fillburn territory. Instead, we're going to be stuck in a world where people don't even know the borders of the law that they're defying.

Takeaways:

  • The court did not just decide the case for any enforcement of the regulation, but in dicta endorsed a bar that is low: a half-hour to hour of unskilled work with power tools available in normal stores. There's a fun takeaway in the majority opinion about a kit that someone was able to put together in 21 minutes, and perhaps that could be a reasonable bar, but it kinda falls apart when you find out that the guy was a trained mechanic who looked through several video guides beforehand and ended up doing it wrong enough the thing needed to be repaired later. The government didn't actually commit to nonenforcement for marginal cases (for whatever 'commitment' matters), but even had it, there are Actual Industrial Manufacturing Processes that do not require anything unavailable from Home Depot that could easily crank out a couple receivers from raw aluminum billet in that time. And, unsurprisingly, the usual crowd has taken this interpretation to every possible end; it might take a few months for lower courts to run rampant with it, but they'll make a Bungie AI look like a Jetsons character.
  • This could be a new era in regulatory overreach, where Trump could write hilariously unlawful regulations and successfully defend them under the 1% of coverage that was actually within a statute, but odds are better this is just another One Case Only special, given the extent the opinion shies away declaring any test proper and leaves open space for the conventional words-mean-things review where Gorsuch hasn't decided that the statute's dead author had wanted to use artifact nouns. Again, months, not years.
  • Did I mention Gorsuch wrote this opinion? I think that puts to rest the various claims that his extremism-in-defense-of-virtue rulings like McGirt or Bostock were just the inevitable conclusions of strict textualism: the textual analysis in this opinion is little more than mind-reading about what the writers must have wanted to cover and intended to do.
  • There could be a statutory fix. Stranger things have happened, albeit not often. I'd not give it good odds, though, not just that the politics aren't in favor of it passing, but also that were it passed, there's no reason for the ATF to not just find the rule it wants again from the breadcrumbs. Once you endorse the dictionary-writers changing the meaning of words to fit whatever goal the Blue Tribe wants today, this sort of fair-weather textualism can be stretched to whatever one side wants.
  • This guts the rule of leniency (at least for the purpose of gun stuff). If any interpretation of a rule can defend every interpretation, with a defense limited to post-jeopardy pleadings, people are stuck stumbling in the dark. There's some serious due process concerns, and they are unreviewable now.
  • Maybe we'll get some massive revision in other cases on Second Amendment matters, but the tea leaves aren't looking great. Lower courts have been actively and aggressively defy the explicit text of well-settled law and good policy under nitpicking pretext, and there's been no serious attempts to slap them down. Duncan v. Bonta has dropped for a third time, it got the exact same answer as before the last GVR, it didn't even attempt any of the demanded Bruen analysis, and it's so unnewsworthy that if I had to write it up I'd be stuck focusing more on the VanDyke YouTuber stuff. Maybe one of Duncan, Ocean State Tactical, or Snope will get actual per curium rather than a GVR that lower courts resist, but even the actual cases the court hears get multilated by the lower courts, and SCOTUS clearly isn't willing to provide any protection from any of the multitude of abuses of Heller and Bruen we've seen, years in.
  • That's two dissenting judges. This court got two. Yes, Kavanaugh separately wrote a concurrence that quibbles about the due process ramifications of only protected because the law requires "willful" violations, but given the ATF's record here and elsewhere, the court's unwillingness to take challenges to other expansive understandings of 'willful', and his inability to get literally anyone to sign onto that concurrence, that's weak medicine. Dedicated activists can take this, along with endless punting on 'easy' cases that would favor Second Amendment rights as a call to bring undeniable cases or to go VanDyke Or Bust for any future SCOTUS noms, but for everybody else, this makes The_Nybbler's position seem the reasonable one. You aren't going to reform the entire judicial system, state and federal, in any living person's lifetime, and nothing less will actually get your freedom back, while talking heads will pretend it's an unabashed success of the conservative movement that they didn't get everything they wanted the second they wanted it. Where planting fig trees makes for a great metaphor, it runs into problems when an entire political movement has been wildly successful bringing the copper nails around every four to eight years. The soap box, ballot box, and jury box might protect someone doing something, but they don't protect your rights.

the ATF's rules are so broad that they cover anything but a literal "unformed blocks of metal",

Was there ever any further debate on what they meant by "primordial state" in that legislation? To my mind, a formed (simple block) piece of precisely-alloyed metal is not "primordial" in the sense of "from the beginning of the world" or "constituting an origin; fundamental". To reach that status you'd have to go back to bauxite or magnetite ore that you could dig from the ground.

Not much. The court filings mostly has the plaintiffs argue it as vagueness, and the state punting on that question as only relevant for as-applied challenges. If you know much about how milling works it's kinda incoherent -- not just in alloyed makeup, but also heat treatment and method of manufacture -- but I don't think anyone involved really did, or would care if they had.

In the oral arguments there was one aside, but it was heavily focused on metaphors and contradictory:

JUSTICE ALITO: I'm going to show you. Here's a -- here's a blank pad, and here's a pen, all right? Is this a grocery list?

GENERAL PRELOGAR: I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

JUSTICE ALITO: All right. [crosstalk] If I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?

GENERAL PRELOGAR: No, because, again, those items have well-known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use. And I think the further evidence comes from the fact that Respondents themselves agree that a disassembled gun qualifies as a weapon. So this is on page 37 of the VanDerStok brief.

JUSTICE ALITO: Okay. So that's helpful. So your definition is a group of components that can readily be converted into something and have no other use. They must have no other use in order to constitute that thing?

GENERAL PRELOGAR: In the circumstance

JUSTICE ALITO: In that situation, they already constitute that thing?

GENERAL PRELOGAR: I think that you can recognize that something is a weapon even if it's non-functional if it is clear from objective evidence of --

JUSTICE ALITO: No, I think that certainly is true from the face of the statute because it has to be -- it's sufficient if it's capable of being converted into -- into something that can expel a projectile. All right. Thank you.

JUSTICE BARRETT: General Prelogar, I just want to follow up on Justice Alito's question about the omelet. Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?

GENERAL PRELOGAR: Yes. And I think that that presses on the -- the more apt analogy here, which is that we are not suggesting that scattered components that might have some entirely separate and distinct function could be aggregated and called a weapon in the absence of this kind of evidence that that is their intended purpose and function. But, if you bought, you know, from Trader Joe's some omelet-making kit that had all of the ingredients to make the omelet and maybe included whatever you would need to start the fire in order to cook the omelet and had all of that objective indication that that's what's being marketed and sold, we would recognize that for what it is. And it -- it doesn't stretch plain English to say, I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them, especially under statutory language that refers to something like breakfast foods or things that can be readily converted to make breakfast.

I think the logic would not include raw bauxite ore, in the same way that the hypothetical did not turn to raw wood pulp or a laying hen, but I'd not want to bet on it. Given the incoherence -- something counts if it has "no other use", except if it's marketed the right way it could have other uses -- I don't think anyone's seriously drawn lines for the question of how far they're willing to take the rule.

Thanks for link. Based on that last quote, I definitely wouldn't want to buy a "0% receiver". I'd even be a bit worried about buying a small piece of 6061 aluminum bar stock from a (normal) metal supplier. Raw ore is probably outside the letter of the law, but I know how much I trust the courts with that.

I think it's safe to say that an empty field is not a gun. Until you start digging.

It always sucks to lose at court, but this case was always a big stretch. The line between receiver and not is very fuzzy in the statute itself, so the agency has a lot of leeway in regulating to make the determination. But not enough leeway to invoke major questions.

Under the previous regime, receivers could still require significant irreversible work to become a working gun that could shoot bullets. For example, an AK-47 receiver must have the trunnion permanently welded on to work. This leads to a few contradictions in the regulation, where dremeling out the plastic tabs in a polymer 80% glock is much easier than building an ak-47 from a serialized receiver. The statute itself doesn't mandate this, but it's still a wart from the previous regulation.

In the end it's clear that something that doesn't shoot but you can click a few parts on to turn it into a working gun is a gun, and a raw brick of aluminum isn't. Unfortunately everything in the middle is going to be decided by agencies and not by the courts.

I'm skeptical that even the raw brick of aluminum would be decided by courts, given the Saga of Defense Distributed and its progeny. The breadth of the rule here includes several not-very-subtle indicators around the Coast Runner-style deployments, and the DoJ did not disavow them, and SCOTUS didn't even care here enough to mention it in the opinion proper.

That’s kinda the crux of it. Were it reasonable to pretend that the court case was only over Polymer80, I might have some quibbles about notice and ex post facto laws, but I wouldn’t be anywhere near as frustrated with this case; the line between 80% and 81% lowers had always been a little prone to ATF fudging.

But Polymer80’s dead. Among living competitors among the plaintiffs, BlackHawk’s ‘kit’ didn’t include everything required to make the receiver, pointed not selling the kit and jig under one package (never mind the rest of the gun), and at the other extreme Defense Distributed sells ‘0% receivers’ (aka CNC machines with a block of aluminum) that would be a hilarious joke were the Biden DoJ willing to commit to not counting them too.

Without that, you’re leaving literally tens of thousands of people to retroactively become felons, with the defense that they can bet their freedom on it at any time and maybe win in a half-decade, over behaviors that were well-accepted for literally decades. If the major questions doctrine can’t cover that, it’s not clear what it does cover.

Sorry I'm just getting to this now, but the upshot of this case isn't that tens of thousands of people will become felons. The regulation being allowed to stand simply means that companies that sell such kits will be subject to the same requirements involving licensing, background checks, serial numbers, etc. The reason the court didn't get too into the weeds over the raw block of aluminum argument was because, as it was a facial challenge, specific examples weren't at issue. If and when the ATF starts demanding compliance from distributors selling aluminum ingots, complete with CNC machine or no, then they can raise an as-applied challenge and maybe get a favorable result.

...the upshot of this case isn't that tens of thousands of people will become felons...

18 USC 992(a)(3): "It shall be unlawful (3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides [...] any firearm purchased or otherwise obtained by such person outside that State, [exceptions not relevant here excised]".

It's probably the sort of thing that gets six months for the first offense, if I've read the Sentencing Guidelines and presuming no previous criminal history, but it's still a felony by its plain text.

The federal definition of firearm is separately extremely widely-reaching, and the Biden administration also fucked with the definition of 'engaged in the business' to such a point that people who aren't even selling guns can get hit with it, but you don't even have to do any gymnastics, here. We don't have exact numbers on how many people bought a covered kit, not least of all because the BATFE is absolutely playing 'we'll never tell' as to what is a covered kit, but just the strict examples of Polymer80 and BlackHawk kits that the opinion focuses on get somewhere in the literally hundreds of thousands of kits sold; tens of thousands is a low-end estimate (the BATFE estimated 2.1m PMFs, and 500k owners).

The only thing that's protecting anyone with one of these firearms is the difficulty tracking them down, the government's pinky promise that it won't bring enforcement from manufacture before the date of the rule's enactment, and Kavanaugh's committment to enforcing that 'willfully' mens rea. And there's reasons (that I've discussed with you!) that people have reason to be skeptical of every one of these things.

((And even that's overstating it, since the BATFE just disavowed retroactively enforcing a serialization requirement and has left definitions of the law so poorly described and so prone to change that people are probably today buying things that they think are legal, and that the ATF does not. And, you know, this case given tacit permission for the most expansive possible reads. The very argument that the Biden admin brought to court was that the terms 'always' included this prohibition, and that they're just clarifying what was always illegal 500k people ago.))

So what's really going is that it would take political capital and legal scrutiny that a Trump administration probably wouldn't want to bring, and a future Harris or AOC maybe wouldn't want to bring. Great, if you're not paranoid! Still a felony if you're praying they don't change their mind without having to change the law.

The reason the court didn't get too into the weeds over the raw block of aluminum argument was because, as it was a facial challenge, specific examples weren't at issue.

It was a pre-enforcement challenge under the APA; the court decided to make that a facial challenge, as far as I can tell without even questioning the plaintiffs or providing clear examples of past opinions making APA pre-enforcement challenges. The court did go into several specific examples to highlight what they believed was clearly covered -- they refused to set bounds not because they wanted to leave the factual questions alone completely, but because they didn't want to deal with setting limits. People called this right after oral arguments.

If and when the ATF starts demanding compliance from distributors selling aluminum ingots, complete with CNC machine or no, then they can raise an as-applied challenge and maybe get a favorable result.

Yes, because of Gorsuch's opinion here, it will be impossible to seriously challenge this or almost any other new regulation, unless a manufacturer is willing to put both their freedom and their business on the line, and the BATFE decides to bring enforcement, and the manufacturer is able to put up the literally hundreds of thousands of dollars that a legal defense will involve while also having their business be considered proceeds of a crime, and the DoJ doubles down on enforcement for a case rather than punching out if and when it thinks there's a moderate chance of an unfavorable result, and and and.

Because the DoJ will be able to forum shop 'select the best jurisdiction for a relevant charge', these will be happening in the sort of circuits where judges will explicitly defy any interest in second amendment rights. In most cases, a distributor will have to commit hundreds or thousands of the same 'felony' just to keep their business or pay for material and capital until the DoJ notices them and decides to bring enforcement. Perhaps they'll be able to get money orders through, given the extent that the feds are willing to pressure financial institutions on this matter (that's a recent one, not the old Choke Point!).

If they are very lucky, the BATFE will not shoot their dogs.

That's my point. It's been my point since that Grisham rant; it's been my point since I first posted on this rule. The willingness of the courts to play along with procedural games around mootness, serious threat of prosecution, et cetera, have long stopped fulfilling any interest in judicial efficiency. The regulatory administration no longer cares about allowing people fair notice regarding what is and isn't illegal. Instead, we've made it impossible for people to know their rights, or to know what they need to do to comply with the law.

So, yes. Then, after all of the above, you might get a favorable result, even in light of the clearest violation of the statute's text possible.

One hell of an act you've got there. What do you call it?

Officer: "Do you have any firearms in the vehicle?"

Me: "Well, some of that is going to be up to interpretation. I have an AR lower receiver in the glovebox, but no other relevant parts. I have an 80% Glock receiver and a Dremel. Six feet of 3/4" steel pipe and a couple of tools that some courts have rendered 'a firearm' in conjunction. And I have a shovel in the back of the truck. And I'm wearing unregistered shoelaces. Sorry, I'm not sure exactly which of those count."

ETA: "I also have the supplies Kirk used to defeat the Gorn in the Star Trek episode 'Arena'. Not sure if that counts either."

To be fair, we (finally) did get a decision in Gustafson from the PA Supreme Court. After well over four years, and just shy of a year from oral arguments at the state supreme court, it turns out that the commerce clause lets the federal government control interstate lawsuits. Don't worry, though: many, many, different, states different states have taken the intermediate time to drive a truck through whatever interpretations they could find post-Remington.

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