The United States Supreme Court heard oral arguments on Tuesday, October 8th in Garland v. VanDerStok, a case that centers around whether or not the ATF and the Biden administration have the legal authority to circumvent the legislative process whenever they feel they can appeal to what they present as a greater purpose. Executive vigilantism if you will. Garland v. VanDerStok resulted from the ATF publishing a “Final Rule” in April of 2022, changing the regulatory definition of “firearm” to include parts that could become functional frames and receivers via additional manufacturing, unilaterally shifting the legislative goalposts yet again. This rule is aimed at manufacturers of 80% receiver kits who have supported the right of private citizens to make firearms for personal use at home, a tradition that does not carry with it the obligation to serialize those guns. By forcing serialization of the kits prior to purchase, law-abiding citizens who choose to maintain their privacy would seek another option, effectively shutting down these manufacturers. Although attorneys representing the government, in this case, have deployed copious amounts of subterfuge in a sleight-of-hand attempt to deflect attention from the matter at hand to a more emotional ground for their actions, the heart of the suit surrounds 18 U.S.C. 921(a)(3) of the Gun Control Act of 1968 (GCA). 

(3) The term “firearm” means (A) 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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm click here

The ATF and Biden administration have repeatedly attempted to justify the circumvention of Congress’ legislative jurisdiction by making “rules” backed by penalties and imprisonment as administered by the government. We have a term for that. It’s called creating law, and neither the ATF nor Biden’s Department of Justice have the legal authority to do that. If this argument feels familiar to you, it should. The ATF, seemingly impervious to learning its lesson, has recently seen “rules” struck down in matters of pistol braces, bump stocks, and forced reset triggers. So why continue beating the drum only to crash against the judicial rocks time and time again? The answer is simple. Although VanDerStok is a test of the Administrative Procedures Act (APA) and not the Second Amendment, the case is Second Amendment adjacent, adversely affecting gun owners and access to firearms, a goal the administration and the left, in general, will take any opportunity to chip away at. The government’s case essentially rests on the idea that they must get around the law to protect public safety, an argument I don’t think they would tolerate from a private citizen. Rule of law for thee, but not for me. I spoke with Bill Sack, Director of Legal Operations with the Second Amendment Foundation, who points out the GCA was passed in 1968, and Congress has had plenty of time to change it, but they haven’t.

“The government attorney, who spoke at length trying to justify their circumvention of the plain language of the statute, was both eloquent and ineffective at the same time. The fact of the matter is that the ATF is seeking to put language in the statute that is not there, a fact that can be seen by anyone who reads the statute itself. Anybody can look it up, you know, 18 U.S.C. 921(a)(3) A and (a)(3) B. You can see it’s not there. It’s a common-sense argument, and the government is trying to come up with every reason why if you squint really hard and you bend over backward, you can take the language from (a)(3) A and put it into (a)(3) B, but the fact of the matter is that it isn’t there. Congress didn’t put it there.”

It’s important not to get stuck on ancillary distractions presented in the government’s case. Even the term “ghost guns” is a well-thought-out piece of propaganda coined only in recent years to paint a picture of an untraceable murder weapon rather than the long-standing tradition of homemade firearms that has been around since the founding of the Republic.  At one point in the briefing, the government presented the analogy, likening the kits to a build-at-home Ikea couch, arguing that it is still considered a couch before assembly. While the receiver kits in question do not even include half the parts necessary to assemble a completed firearm, the analogy also ignores the requirement for actual manufacturing, including milling, drilling, and fine finishing, not just assembly, demonstrating either a lack of knowledge on the subject matter in front of the highest court in the land or a willful intent to deceive the Justices.  Media opinions have certainly hung on comments from misinformed Justices.

“Drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends… My understanding is that it’s not terribly difficult for someone to do this,” said Chief Justice John Roberts.

While it’s easy to ridicule the Chief Justice for this misguided statement, it’s important to consider his sources for the hyperbole, the ATF and the Biden administration. “Drilling a hole or two” is a demonstrably dishonest take on the process, and I would have particularly enjoyed seeing a kit laid out in front of the Justices for a hands-on show of how “not terribly difficult” it is. This would have been good for a few laughs.  Representing manufacturers and groups opposing the rule, Peter Patterson pointed out that building the kits is far more complicated than the administration has suggested, however, Patterson wisely remained grounded in his argument, staying with the facts and nature of the litigation, which had nothing to do with how easy or difficult a kit is to build, and everything to do with the ATF overstepping its authority. Since the conclusion of the day’s oral arguments, the mainstream media has touted the Supreme Court’s disposition during the hearing as signaling a tendency towards the ATF and Biden administration’s arguments regarding lack of manufacturing difficulty and the potential for prohibited individuals to purchase kits and build them at home for criminal intent. I will point out, however unnecessarily, that violent crime has been around long before 80% receiver kits, and violent criminals have never had an issue arming themselves, sometimes aided by our own government. Just ask Barack Obama and Eric Holder about Operation Fast and Furious. 

Justice Amy Coney Barrett added to mainstream media perceptions as she has appeared yet again to break with conservatives on the court, expressing her support for regulations that force buyers to obtain a firearms license to purchase build kits. This is not the first time Justice Barrett has departed from conservative views on the Second Amendment, values she represented herself as a staunch supporter of when she was nominated to the Supreme Court by then President Donald Trump. She previously joined Chief Justice John Roberts and liberal Justices in blocking a lower court's injunction from taking effect against the ATF “ghost gun rule” last year. VanDerStok, however, is not the only case in which Barrett has supported gun control measures, as she showed strong disapproval of an analysis by conservative Justice Clarence Thomas during oral arguments in United States v. Rahimi, a case bringing into question whether people under a domestic violence civil restraining order have the right to own a gun. Barrett signaled disagreement with Thomas's strict constructionist view of the Second Amendment, a school of thought that suggests readers should focus only on the wording of the Constitution, a curious stance for Barrett as someone whose oath is sworn to that very document.

I won’t debate interpretations over a crystal ball trying to predict the Court’s future ruling. That is utterly useless. I will say, however, that I find the cause of such fortune-telling short-sighted, as the Justices are faced with decisions solely based on administrative procedure, which should be the prevailing legal factor in this case. A decision in Garland v. VanDerStok is expected by next summer.

“The rule of law is not to be ignored when it’s inconvenient. It’s most important when it’s inconvenient,” Bill Sack said to me in our conversation. 

The abuse of power and the weaponization of rogue agencies and the judicial system have eroded our freedom and liberty for too long. While I don’t subscribe to the idea that leftist politicians are something we should strive for on any intellectual level, I also don’t think they are as dumb as they would need to be to ignore and oftentimes facilitate criminal elements while focusing legal efforts on criminalizing law-abiding citizens exercising their rights, not without some sort of agenda. My respect for the foresight of the Founding Fathers, however, is without limit, as they saw all of these matters ahead of time. Looking back on history and human nature, they provided us with a framework to succeed, and it is one the Supreme Court of the United States of America must now, more than ever, steadfastly preserve and defend.