Gun Owners of America Sues ATF to Block New Definition of Frame or Receiver Rule

thetruthaboutguns.com ^ | July 6, 2022 | Dan Zimmerman

[absalom01]

They’ve been doing exactly that for years.

Maybe now there’s going to be some pushback.

In any event, the GOA deserves support in this endevor.

[pierrem15]

Actually, Bruen tossed strict scrutiny because that is a means test: it still allows the argument that thee "danger" of firearms can "balance" the exercise of the right.

Bruen argues that the starting premise of "shall not be abridged" is "shall not be abridged." But since some gun control regulations were considered permissible in the past closer to the Founding, we should look at those to see if current restrictions are compatible with the 2nd Amendment.

Thomas' opinion basically restricts that historical survey to pre-Civil War restrictions which mainly restricted concealed carry (no Dillingers at card games) and carrying of weapons in public in a manner designed to intimidate. Post Civil War restrictions are disallowed (like the Sullivan Act) because of corrupt motives (racism, Tammany Hall).

That's about all the restrictions the opinion allows, unless the firearm is unusual and unusually dangerous. So modern "assault weapons" must be permitted because they are in widespread use but fully automatic weapons may be restricted. I know the latter is begging the question since both the NFA and 1986 law have acted to severely restrict ownership of full-auto firearms.

So in my reading all the AWB's, magazine limits and other such restrictions are now toast, and the ATF's attempts to restrict homemade firearms are also probably toast under the 2nd Amendment and the fact that they are twisting the 1968 GCA's definition of a firearm beyond any recognition.

[Yo-Yo]

The real problem is that in a strict reading of the 1968 GCA, an AR lower and upper are not a firearm until assembled, as neither one contains both the fire control mechanism and the bolt. The lower receiver rule was created as a compromise with the manufacturers, gun owners and ATF.

The statute is 18 U.S.C. 921(a) which only says:

(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.

So the ATF created a rule based on 921(a)(3)(B). A careful reading of CFR 479.11 shows that the definition of a "frame or receiver" is:

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.

The definition above was an ATF definition, not a congressional statute.

Again from U.S. v. Jimenez:

The gist of Jimenez's challenge is that the AR-15 lower receiver does not fit the CFR definition of a "receiver" that is illegal under the gun laws. Significantly, the parties agree on all the factors material to this challenge. They agree that Section 479.11 of the CFR defines a receiver as the "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." This means a receiver must have the housing for three elements: hammer, bolt or breechblock, and firing mechanism. As the plain language of Section 479.11 shows, barrel threading is not a mandatory element. See also 1,100 Machine Gun Receivers , 73 F.Supp.2d at 1292 (same). They also agree that the lower receiver for which Jimenez was arrested and indicted houses only two of the required features—the hammer and the firing mechanism. Dkt. No. 12 at 8; Dkt. No. 13 at 13. The Government forthrightly concedes that this format "does not perfectly fit the CFR section definition."

So this new rulemaking was supposed to rectify the vagueness of the definition of "frame or receiver" for various styles of firearms, to remedy the fault exploited by Jimenez.

However, it may take Congress modifying 18 U.S.C. 921(a)(3)(B) to grant authority to ATF to define "frame or receiver" for each individual style of firearm by adding the phrase "(B) the frame or receiver of any such weapon as determined by the Attorney General;" which would then grant ATF rulemaking authority to define a "frame or receiver" in the manner that they have.

[Ancesthntr]

While it is likely true that the ATF has gone beyond its authority, pursuant to the recent ruling in West Virginia v. EPA, that is probably beside the point. The simple fact is that even if Congress had passed a law with the exact same verbiage, it would likely be unconstitutional. The Bruen case stated that any act protected under the second amendment was to be presumed legal, and it was up to any law making authority who wished to challenge that position to affirmatively prove that such a law or regulations existed at or near the time of the founding of the country and the ratification of the 2nd Amendment. There were absolutely no laws or regulations in any of the 13 colonies or original states which prohibited the manufacture or assembly of firearms by private citizens for their own use. In fact, there were no such laws or regulations concerning the *sale* of such firearms to other people (thus the FFL rules should be voided…and I expect a challenge to the ‘68 GCA before long). All such laws and regulations are thus unconstitutional. The fact that the ATF decided to weigh in with regulations that exceed its authority is just icing on the cake.

[pierrem15]

I pointed out that the fact that just about everyone was happy with the lower-receiver rule and the 80% rule because I think under Bruen they will provide some legal basis for whatever comes out of the current litigation that will withstand scrutiny by the courts. The ATF's redefinition of their authority to include tools under the "ghost gun" regulations I think will simply fail even without Bruen or EPA.

Under EPA, I suspect any "as determined by the Attorney general" regulation will be struck down if it exceeds any specific grants of authority under the delegation doctrine: just because the AG makes the reg doesn't suddenly create new legal authority, no matter how much the crapweasels in Congress want to shirk their responsibility.

[ammomajor]

I would expect the writer of an article about firearms to know the meaning of “ordnance” versus “ordinance “. My expectations are not always met.

[rod5591]

So if the USSC ruled that Federal Agencies can not make rules that Congress should make, then why is ATF redefining rules concerning firearms, which are protected by the US Constitution?

[Fellow Traveler]

So you are saying a test more stringent than strict scrutiny? You may be right. I do think they have to toss the 86 Hughes amendment. It is arbitrary that I can purchase an m16 made in 1985 but not if it was made in 1987.

[Glad2bnuts]

Wasn’t the ATF invented over the need to control alcohol after the Volstad act? I don’t know why Tobacco is in there at all, and Firearms? aren’t they mentioned in the BORights? Free Enterprise means that if you can build it, you can keep it, or it used to. So if you invent a better weapon, you can keep it for yourself, or sell it to others for a profit.

BREAK UP THE FEDERAL LEVIATHAN. Tear it down to its very basics, those duties directly given to it by the Constitution, and NO MORE.

[pierrem15]

Strict scrutiny, intermediate scrutiny and rational basis are all means tests, meaning the exercise of the right can be "balanced" by the legislature's consideration of the public interest. It's these tests that explain why almost all gun control laws in effect or passed after Heller have stood up: the courts always find some excuse to apply a rational means test that justifies the restrictions.

Thomas basically slapped down this whole line of jurisprudence in Bruen in a way that suggests that exercise of the right is presumptively valid for anything except "dangerous and unusual" weapons, which I think means basically automatic weapons and artillery. Everything else that is in common use in the country is exempted. With the grant of cert, vacate of the lower court and remand in light of Bruen regarding the Maryland AWB, I think all AWBs will be gone within a couple of years as well as the magazine bans that were also remanded. There will be a lot of litigation over details like laser sights (banned in Chicago), etc., but my guess is in the end everything in common use must be allowed.