In layman’s terms: Yesterday’s oral arguments in Garland v. VanDerStok attempted to answer the question: Are weapons parts kits or incomplete frames or receivers regulated by the Gun Control Act of 1968? No decision has been rendered in this case, these were merely oral arguments in front of the US Supreme Court.
On Tuesday, October 8, during its new session, the United States Supreme Court heard oral arguments in an important Second Amendment case known as Garland v. VanDerStok. The case mainly addressed the statutory authority of the ATF and so-called “ghost guns.”
Although the Justices have mountains of briefings and documentation related to the case at hand, it was evident that some of them struggled to understand the issues at hand. They routinely brought up analogies intended to make sense of the comparisons of parts kits versus fully assembled frames and receivers. The analogies included comparisons to having all the ingredients for an omelet (does having the ingredients constitute an omelet?), and also a comparison to a car lacking an engine (is it still a car?).
Arguing for the State out of the Department of Justice, Solicitor General, Elizabeth Prelogar, made the case in opening arguments that firearms kits wherein the purchaser must perform some finishing work in order to create a fully functional frame or receiver, have caused an explosion in crime and are uniquely attractive to only criminals.
“Those untraceable guns are attractive to people who can’t lawfully purchase them or who plan to use them in crimes. As a result, our nation has seen an explosion in crimes committed with ghost guns,” according to Prelogar.
Throughout the argument, the questions from Justices gave some insight into their thinking, or at least their view of the case at hand. For example, Justice Alito asked, “What is the meaning of the term ‘weapon’ in 921(a)(3)(A)? Can you give me a definition?”
Prelogar gave a rather bizarre response:
So that’s an undefined term, and we think it therefore carries its plain dictionary definition as an instrument of offensive or defensive combat. But nothing in Congress’s use of the term “weapon” suggests that it has to presently be functional as an instrument of combat in order to qualify.
Justice Alito underscored his point with the following visual analogy:
Well, no, I — I want to stick with the definition of “weapon” for just a second. 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?
He continued, extending the analogy to something we all understand:
…if I show you — I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?
Prelogar responded:
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.
Justice Gorsuch got to the heart of the case with the following question:
General, I understand your argument under (A) with respect to things that could be readily converted, but there’s also the argument under (B), frame or receiver, which doesn’t include that kind of language that might bring in artifact nouns more obviously. What — what’s your thought about that?
A little background: the definition of “firearm” in the Gun Control Act of 1968 (GCA) is:
any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon.
In 1978, the ATF defined a “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 at its forward portion to receive the barrel.”
In August 2022, the ATF issued a rule (“the 2022 Rule”) interpreting the GCA’s definition of “firearm” to include weapons parts kits “that [are] designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by action of an explosive.”
Prelogar responded trying to justify the government’s position, and then Justice Gorsuch dropped this bomb:
Well, if you have something textual, I’d love for you to point me to that and also address — your friends on the other side I’m sure are going to make something of this, that as recently as 2021, in a brief filed in the Southern District of New York, government represented that an unfinished frame or receiver does not meet the statutory definition of “firearm.”
Other interesting questions from the Justices to the Solicitor General included:
Justice Alito: “Under the rule, what percentage of the parts of a firearm kit must – must be included in order for it to be a firearm kit?”
Prelogar’s long-winded response referenced “readily converted with minimal work,” but gave no specific answer.
Justice Alito: “Were weapons parts kits common in 1968?”
Prelogar demured on the answer but suggested that the widespread adoption of polymer materials changed the landscape. When pressed again on what constituted “readily converted by a novice,” Prelogar finally gave a specific definition:
And the agency has not considered any product greater than eight hours to be readily convertible. So, if that issue were squarely presented, a court might hold that something like a day’s work or eight hours sets an outer bound.
Justice Kavanaugh noted the slippery slope of the ATF’s new interpretation and how it could penalize legitimate businesses:
I have some concern now about mens rea. And this is an agency regulation that broadens a criminal statute. So what about the seller, for example, who is truly not aware, truly not aware that they are violating the law and gets criminally charged? What assurances can you give about mens rea, about the instructions to the jury that the government would seek, and the like?
Prelogar’s long answer suggested that manufacturers should perform background checks for all buyers. Justice Kavanaugh pressed, asking if the government would bring charges against manufacturers who didn’t, and Prelogar answered unconvincingly, “I don’t think the government would be likely to charge someone in that kind of situation.”
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It’s widely known that the ATF has leveraged shifting definitions to its advantage to prosecute manufacturers, revoke licenses and more. That made Prelogar’s final statement difficult to believe when she summarized:
So I guess the only other thing I would say is that we think that there is a lot of protection for manufacturers who are seeking to comply with the law in good faith. ATF is not trying to hide the ball here. The point of the agency is not a game of gotcha to try to criminally prosecute people.
Justice Barrett asked a critical question regarding AR-15s:
I have a question about AR-15s. So Judge Oldham expressed concern that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal.
Her question was significant because under the “readily convertible” definition of the ATF, an AR-15 could be converted to a fully automatic “machine gun” under the GCA definition with the drilling of one hole. That begs the question about both the definition and classification of these popular types of firearms under the Gun Control Act – the implications are significant.
The State’s response was again, unconvincing from our perspective:
But you couldn’t say that about an AR-15. That is obviously something that’s designed and intended to be used for semi-automatic fire. And the fact that you might be able to undertake certain drilling and machining operations to convert it into a machine gun doesn’t mean that while it has this separate identity and is standing alone, it would be regulated as a machine gun. The agency has never held otherwise.
Pete Patterson made a strong opening statement on behalf of respondents challenging the ATFs rule in this case:
…Congress decided to regulate only a single part of a firearm, the frame or receiver, and Congress did not alter the common understanding of a “frame or receiver.” ATF has now exceeded its authority by operating outside of the bounds set by Congress. One, ATF has expanded the definition of “frame or receiver” to include items that may readily be converted to a frame or receiver. And, two, ATF has expanded the definition of “firearm” to include collections of parts that are not weapons and that do not include a frame or receiver.
The Court then dove into a long and arduous exploration of what constitutes a finished frame or receiver and what the tests are for determining that, including whether drilling a single hole would constitute the “critical machining operations test” proposed as an alternative to the current government definition that hinges upon the “readily convertible” standard.
The Court took another bizarre turn with a subjective line of questioning that had nothing to do with the challenged legality of the ATFs rule.
Justice Roberts: “Just what would — what is the purpose of selling a receiver without the holes drilled in it?”
Mr. Patterson: “Well, the — some individuals — just like some individuals enjoy, like, working on their car every weekend, some individuals want to construct their own firearm. So the purpose of selling it is to allow…is to assist and provide individuals with material with which they can do that.”
Justice Roberts: “Well, I mean, 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.”
Justice Alito attempted to make another analogy to clarify the comparisons of unfinished receivers:
Suppose I see that my neighbor is restoring a classic car, and — but he’s taken out the — some critical parts, and then someone says, well, what is that? And I – I might well say, well, that’s a 1957 Thunderbird, even though it — you couldn’t drive it and it would take some work to make it do the thing that it was originally created to do. So isn’t that what — isn’t that the essence of your backup argument? The thing must still be such that one would call it a frame or receiver even if it is not fully ready to be functional as a — as a frame or receiver at this time?
Towards the end of the testimony, a surprise exchange with Justice Jackson, who is typically not friendly to Second Amendment issues, illustrated the core element of the case:
Justice Jackson: So you see the question as what is the best alternative, and the Court is just supposed to say we have three options here, which one do we think the best; the agency didn’t pick the best, its rule is stricken?
Mr. Patterson: Well — well, I think we actually don’t have that — I think our burden is to show that the agency’s is wrong. Maybe we don’t have the right interpretation, but if their interpretation is incorrect, then they’re asking the wrong question. As —
Justice Jackson: But by “incorrect,” you mean that they don’t have the authority under the statute to reach that, the — it’s – it’s inconsistent with the statute?
Mr. Patterson: Correct. If “frame or receiver” does not include items that may readily be converted to frames or receivers, then this rule is beyond their authority, regardless of what “frame or receiver” does mean. So they’ve gone beyond their authority.
The Court is likely to issue its opinion some time in the first quarter of 2025.
