Category: Second Amendment News

The United States Supreme Court has accepted the Justice Department’s appeal in VanDerStok v. Garland. The case addresses the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) Final Rule on Frames and Receivers, more commonly known as the “Ghost Gun” Rule. The ATF has lost at every level so far, leading to this final appeal. Let’s review what has happened to this point and discuss what this could mean.

The Final Rule on Frames and Receivers

The ATF published the Final Rule in late 2022, unilaterally changing the definition of a “firearm” that was established by the 1968 Gun Control Act (GCA). Basically, the GCA defined a “firearm” as follows:

• 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;
• The frame or receiver of any such weapon;

Furthermore, the GCA defined “frame or receiver” as “that part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded as its forward portion to receive the barrel.”

Those are definitions hammered out and voted on by the US Congress and signed into law by President Lyndon Johnson. Nowhere does it say that ATF, which the GCA created, has the authority to change those definitions. But that’s what the agency did. The Final Rule effectively merges parts (A) and (B) above, applying the phrase “may be readily converted” to the term “frame or receiver.” (A) and (B) are clearly separate, meaning that Congress purposely kept them apart. The GCA is federal law, duly enacted through the legislative process. Executive agencies like the ATF do not possess the authority to change that, especially since the changes carry the weight of federal law, including imposing criminal penalties like fines and prison time.

Legal Challenge

The ATF’s Final Rule was quickly challenged. The VanDerStok case gained traction in federal court in the Northern District of Texas. The Second Amendment Foundation (SAF) and Firearms Policy Coalition (FPC) litigated on the plaintiffs’ behalf and continue to do so.

Federal District Judge Reed O’Connor ruled for the plaintiffs and vacated the Final Rule in its entirety, saying the ATF overstepped its authority. Judge O’Connor wrote that “The Court begins with the Plaintiffs’ shared claim that, in attempting to regulate products that are not yet a ‘frame or receiver,’ and therefore not a ‘firearm’ for purposes of the Gun Control Act, the ATF has acted in excess of its statutory jurisdiction. As they argued at the preliminary injunction stage, Plaintiff’s maintain that the Final Rule exceeds ATF’s statutory authority in two primary ways. First, they argue that the Final Rule expands ATF’s authority over parts that may be ‘readily converted’ into frames or receivers when Congress limited ATF’s authority to ‘frames or receivers’ as such. Second, they argue that the Final Rule unlawfully treats component parts of a weapon in the aggregate (i.e., a weapon parts kit) as the equivalent of a firearm. The Court agrees with the Plaintiffs.”

The judge’s opinion concluded by saying that “Because the Final Rule purports to regulate both firearm components that are not yet a ‘frame or receiver’ and aggregations of weapon parts not otherwise subject to its statutory authority, the Court holds that the ATF has acted in excess of its statutory jurisdiction by promulgating it.”

The Appeal

The Justice Department appealed the decision to the 5th US Circuit Court of Appeals. The 5th Circuit’s three-judge panel upheld Judge O’Connor’s decision but granted 10 days for the defendants to seek a stay from the Supreme Court. That stay was granted, which was unsurprising. The Supreme Court likes to stay out of lower court proceedings until the appeals process brings a case directly to them. This process allows the arguments to play out while refraining from influencing lower courts’ deliberations by issuing premature judgments.

The full 5th Circuit again upheld the decision once more, prompting the Justice Department’s appeal to the high court. And here we are. The Supreme Court has accepted the case and will hear arguments soon.

What Now?

The SAF and FPC attorneys will argue the case before the high court, while the US Solicitor General’s office will defend the Final Rule on the Justice Department’s behalf. Those arguments will be streamed live, and at least one, probably more, YouTube gun channels will carry it. I can’t say how long the arguments will last, but this case has been allowed to mature properly, so it could very well be over in one day.

The Supreme Court will not issue a same-day decision. The high court will deliberate and discuss before releasing an opinion sometime this summer. The Justice Department has lost at every stop so far, so here’s hoping they go 4 for 4. If so, the Final Rule is dead. If not, the ATF will no doubt go after the plaintiffs with a vengeance, along with anyone else they deem in violation of the rule. Let’s hope that doesn’t happen. Either way, we’ll keep you updated on how this case proceeds.

The Mexican government’s $10 billion lawsuit against American gun manufacturers is hopefully headed to the Supreme Court. The defendants’ lawyers in Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., et al. have petitioned the high court for a Writ of Certiorari focused on two questions:

1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

This petition was generated by the First Circuit Court of Appeals, which overturned the Massachusetts Federal District Court’s dismissal of the original suit. The First Circuit held that those two questions could be answered in the affirmative, making American gun makers somehow responsible for the horrific violence perpetrated by Mexican drug cartels. The First Circuit, incredibly, ruled that Mexico’s alleged injuries were a “foreseeable” result of the defendants’’ actions. This means producing and selling legal products according to US law.

The Mag Life Blog has previously covered this case in some detail. You can read those articles here and here. But we’ll do a quick summary and talk about why this is important. We’ll also touch on how the anti-gun movement in the United States is ultimately behind this whole thing and what those bad actors hope to gain.

Mexico’s Claims

Mexico’s extraordinary allegations seek to blame US gun companies for their own government’s failed policies. The suit claims that US gun makers produce semi-automatic weapons, especially guns like the AR-15, and magazines holding more than 10 rounds, some of which are smuggled into Mexico to the drug gangs. The complaint further alleges that these companies willfully take no steps, aside from those required by US law, to mitigate the damage caused by their products’ misuse in Mexico.

That’s literally it. Mexico is suing gun makers for following the law and legally selling their products. Their complaint does not cite even one illegal activity in which these companies are engaged. But Mexico says they should go further than US law dictates by voluntarily not making guns the Mexican government doesn’t like and only selling them to people who can demonstrate a particular need for them.

That wish list basically mirrors Mexican gun laws, which is certainly no coincidence. The country literally has ONE gun store. It’s on a military base in Mexico City. Only rich, powerful, connected people can own a firearm, and even then, you take what they decide to give you. Mexico boasts that it grants fewer than 50 firearm licenses per year.

Some of Mexico’s allegations are unbelievably wild, like claiming that Smith & Wesson’s M&P (Military & Police) marketing incites people “to battle against the military and police.” (Emphasis added). It’s truly ridiculous.

The Petition

The defendants say the Supreme Court should grant the petition for the following reasons:

1. “The First Circuit’s proximate cause holding creates a split and conflicts with this Court’s precedent.”

Basically, the First Circuit goes against established case law and creates a split among the Circuit Courts and several State Supreme Courts. This is important to whether the Supreme Court will accept the petition. Splits, especially among the federal appellate courts, potentially create judicial havoc, meaning the high court is likely to address it.

2. “The First Circuit’s aiding-and-abetting holding defies this Court’s precedent.”

A lower court deliberately ruling against Supreme Court precedent is a no-no. This may also prompt the petition’s acceptance.

3. “The questions presented are exceptionally important.”

The petition says that the First Circuit’s logic “exposes a wide swath of industry to liability for doing nothing more than making available legal and non-defective products that can be criminally misused downstream.” Additionally, “Mexico’s brazen attempt to regulate the American firearms industry based on its foreign interests poses a grave threat to the sovereignty of the United States, its citizens, and their Second Amendment rights.”

The second point addresses American sovereignty and the dangers of allowing foreign governments to dictate our laws and citizens’ rights through our own court system. Allowing the First Circuit’s decision to stand opens American companies to limitless frivolous suits by governments seeking to deflect blame from their failed policies. It really does boggle the mind, and one wonders what the First Circuit was thinking.

The petition lists two additional legal reasons for acceptance that go beyond the scope of this article. You can read the entire petition on the National Shooting Sports Foundation’s website, nssf.org.

Bad Actors

If you’re thinking Mexico’s lawsuit is about bankrupting American gun companies, you’d be right. The case has no legal merit despite the First Circuit’s ruling. Mexico’s US attorneys no doubt chose Massachusetts for the case because of a sympathetic appellate court. The City of Chicago’s recent lawsuit against Glock has the same ultimate goal. But Chicago didn’t have to shop for sympathetic judges since it’s, well, Chicago, and they are already governed by the anti-gun 4^th Circuit.

But those two cases have something else in common. Each is being pushed by a prominent American gun control organization. Everytown Law, the legal division of Everytown for Gun Safety, is litigating on Chicago’s behalf. The Mexican government allied with the Brady group (I don’t know what their correct name is this month) and a firm of left-leaning Austin, Texas lawyers to bring their suit.

So, US gun control groups are now aligned with foreign governments to bring down legitimate American companies they don’t like. They can’t get their way politically, so they’re trying to destroy an entire industry through ridiculous lawsuits. Even if they don’t win, companies can only defend themselves in court for so long. Especially when their opponents can pay their lawyers with tax money. And they’ve already tasted some success with Remington’s $73 million settlement with the Sandy Hook parents.

That’s why the Biden Administration and anti-gun lawmakers are so hell-bent on repealing the Protection of Lawful Commerce in Arms Act. They want to sue gun companies into oblivion when criminals misuse their products, just as Mexico is trying to do. Even ridiculous cases must be defended in court, and lawyers aren’t cheap. Those companies would be overwhelmed in short order. Of course, no one ever accused gun controllers of being ethical.

Turncoats

But gun control groups aren’t the only ones siding with outside interests. Twelve State Attorneys General filed signed a 26-page legal brief supporting Mexico in 2022. Those Attorneys General are from Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, and Oregon. The District of Columbia’s AG signed on for good measure. Again, those AGs supposedly represent American citizens, yet they have sided with a foreign government aiming to limit those citizens’ Constitutional rights. But such are the priorities of the anti-gun movement.

What’s at Stake?

The defendant’s petition answers that question quite clearly, and it deserves to be reprinted here:

The First Circuit’s decision, it reads, “has dire implications for American sovereignty, as it allows a foreign government under the guise of litigation to regulate (if not eliminate) the manufacture and sale of common firearms in the United States. Simply put, Mexico detests the American system that makes firearms readily available to law-abiding citizens in accordance with the Second Amendment. It makes no secret of its view that ordinary citizens should not be allowed to buy an AR-15 or a firearm capable of holding over ten rounds. And it finds abhorrent how law-abiding Americans have the liberty to obtain such firearms without having to beg for the government’s grace.”

“Absent this Court’s intervention, Mexico will be handed a de facto domestic regulatory tool as it saddles the American firearms industry with burdensome litigation, far-reaching compulsory discovery, and the specter of a multi-billion-dollar judgment that it can wield to bully the industry into altering its practices. And that says nothing of Mexico’s proposed injunctive relief, which seeks to impose gun control regulations that Congress has repeatedly rejected. That is not all. Even if the defendants prevail down the road in this suit, so long as the decision below remains good law, it invites other countries to run the exact same play with the exact same basic complaint.” A footnote points out that some countries have already promised to do so.

The petition continues, saying that “Giving foreign sovereigns the power to impose the burdens of such litigation gives them a Damoclean Sword to dangle over the head of the American firearms industry. Indeed, in passing PLCAA, Congress recognized that the severe costs of defending suits like this one could pressure firearms companies to curtail their business practices, jeopardizing democratic control. (PLCAA prohibits efforts to “use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce”); (“[The industry is] in danger of being overwhelmed by the cost of defending itself against these suits.”). That danger is especially acute when it comes from foreign governments, as they seek to use lawfare to suppress American firearms with no accountability to the American people.”

What Now?

Well, we wait to see whether the Supreme Court accepts the petition. I’m no lawyer, but I think the split opinions among the lower courts, combined with a foreign government trying to limit American citizens’ Constitutional rights, would make this an easy call. But you never know. Nor can we predict with any certainty how the high court would rule in the end. I’d say I’m cautiously optimistic, but the stakes are too high to blow sunshine up your backside. We’ll keep you updated.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has announced another “Final Rule” criminalizing a practice that has been legal since the nation’s founding. The new rule, entitled Definition of “Engaged in the Business” as a Dealer in Firearms,” will take effect on May 10, 2024. The Final Rule represents the current administration’s attempt to end private firearms sales in the United States.

In short, selling a gun to anyone other than a family member means you are “engaged in the business” of firearms sales and will be required to have a Federal Firearms License (FFL). Selling without a license can carry a penalty of five years in federal prison and a $250,000 fine. For selling a gun to your neighbor.

The “Gun Show Loophole” Propaganda

News reports frame the new rule as closing the so-called “gun show loophole.” The ‘gun show loophole” is a propaganda term created by gun controllers to scare the public despite the demonstrable fact that very few crime guns originate from gun shows. The term has always been a cover for efforts to outlaw private sales between individuals. You can read more about the “gun show loophole” myth here.

This propaganda was on full display on April 12, the day the ATF released the new rule, when I received a rather inflammatory email from my United States Senator. “After decades of trying,” the email says, “we’re closing the gun show loophole.” It then goes on to spout the gun control line and how he’s pushing for even more unconstitutional nonsense. As you might imagine, the email prompted a salty reply from your humble correspondent.

White House Propaganda

The White House also released a “fact sheet” regarding the new rule. It claims that “Unlicensed dealers who do not conduct background checks are also the largest source of firearms that are illegally trafficked into our communities.”

A link is provided to a 2019 Justice Department report supposedly validating that claim. Instead, the report addresses “black market guns,” which account for 43% of crime guns. Another 6% of criminals say they stole their guns, 10% say they bought them legally, and 11% were from straw purchases, which are already illegal. A high percentage of black market guns are undoubtedly stolen as well. So, at least 60% of crime guns are sourced illegally. Only 15% of criminals say they got their guns from a friend or relative. Oh, and only 0.8% of crime guns were purchased at gun shows. So much for the “loophole.”

Executive “Universal” Background Checks

You can read those results in one of two ways. First, “black market” implies criminal sales, which we all know will not be impacted by the new rule. I’m sure the criminals who sell to drug gangs will say, “Golly, there’s a new ATF rule saying that I need a license for this. You guys will have to wait until all that’s approved. Sorry, fellas.” We all know that won’t happen. ATF and the White House Office of Gun Violence Prevention, where this rule was likely conceived, know it too.

So, the only way this rule makes sense is to conclude that the most anti-gun administration in American history has decided that they don’t want private citizens selling guns without a federal background check. We’ve been hearing about so-called “universal” background checks for years. But Congress hasn’t enacted such a law because it’s only enforceable through a national firearms registry, which is illegal. There is evidence, however, that ATF maintains a de facto searchable registry, but that’s a story for another day.

Gun controllers have long misrepresented internet gun sales. Online retailers and websites like Gunbroker will only ship to an FFL, meaning the buyer still has to pass a background check to complete the transaction. The anti-gunners, however, want the public to believe that UPS will just deliver a gun to their door, no questions asked. But private sales are also arranged over the internet. I’ve done that myself, though it’s been a while. The rule wants to stop that practice, though it’s no different from any other private sale in the end.

This rule looks like an attempt to create “universal” background checks while blaming “rogue dealers” for criminal actions. Criminal actions that governments on every level refuse to address. Essentially, the administration has decided that selling a handgun to your friend or neighbor makes you a “rogue dealer,” and they’re going to shut you down, you hardened criminal you. Meanwhile, the black market rolls on, unscathed by rules. But as we said, the White House knows that.

“Engaged in the Business”

The rule redefines the definition of who is “engaged in the business” of selling firearms. It focuses on selling guns for profit, but the White House says that “the Final Rule clarifies that even a single firearm transaction may be sufficient to require a license.” That’s right. Just one transaction. But it gets better. The rule also says that actually selling the firearm may not be necessary to invoke its enforcement.

The rule states that “Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.” That’s right. Offer to sell your friend a hunting rifle, and you could go to federal prison. The rule is unclear on what constitutes “other evidence.” Yet the rule also states that persons “are not ‘engaged in the business’ [if] they make only occasional sales to enhance a personal collection or for a hobby, or if the firearms they sell are all or part of a personal collection.” That seems to contradict the previous statements. Not only is it vague, it’s also subjective. In fact, the entire 466-page rule, which I slogged through this weekend, is incredibly vague, with numerous qualifiers and theoretical situations. Lots of people will unknowingly get caught up in this thing.

How vague is the rule? Well, the whole thing revolves around Joe Biden’s March 2023 executive order directing Attorney General Merrick Garland to “clarify the definition of who is required to obtain a federal firearms license.” That evolved into defining who is “engaged in the business.” ATF takes 466 pages to define that simple term. Lawyers wrote the rule for other lawyers. It’s a mess of legalese, which I believe is deliberate, given the administration’s history. It’s designed to discourage and eventually eliminate private gun sales.

The ATF has, however, generously allowed auctioneers to continue their activities at estate sales and such. I have not, however, seen any reference to the actual property owners who engaged the auctioneer. Maybe they’ll need an FFL before trying to sell Grandpa’s gun collection.

Thank Your Senators

Biden claims the authority for his executive order came from the 2022 Bipartisan Safer Communities Act (BSCA), which was passed after the tragic Uvalde, Texas school murders. Fifteen supposedly pro-gun senators supported the law, guaranteeing its passage. Biden immediately took credit for the law, claiming it to be the “most significant gun safety legislation in thirty years.” That legislation has given us federal bribery for states to pass Red Flag laws and attempted federal defunding of school hunting and archery programs. Those came directly from the White House gun control office. Now, we have an Executive Branch effort to criminalize private firearms sales.

Now What?

Let the lawsuits begin. Like the other overreaching ATF rules under this administration, this rule clearly goes too far. Recent court cases have indicated a growing trend of reeling in executive agencies that overstep their legal authority. The simple fact is that these agencies do not have the power to enact federal law. Yet, this rule does exactly that. Violations can land someone in prison for up to five years and carry a $250,000 fine. Those are criminal penalties that only the Legislative Branch can impose.

ATF rules have been challenged recently by saying they violate the Administrative Procedures Act, which they have. But APA violations mean the agency can just go back and do it over, this time following the proper procedures. I’d like to see the Executive Branch’s authority to make such rules challenged directly. The administration, through the ATF, is clearly violating the Constitution’s Separation of Powers directives. The Executive has been accumulating power to itself for decades. It needs to stop. A feckless Congress that shies away from difficult issues is also to blame, but that’s another story. Just understand that Congress is happy to stand back and wring their hands without extending their collective necks on electorally divisive subjects.

So, once again, it’s up to us. Please consider supporting the organizations that fight for our Second Amendment rights. You know who they are by now. It will likely take a couple years to accomplish, but this is a bad rule. We need to make it go away.