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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.
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.
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.
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?
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