A federal appeals court on Thursday shot holes in a rule imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives intended to crack down on so-called “ghost guns.”
A three-judge panel of the 5th U.S. Circuit Court of Appeals said a 2022 rule aimed at weapons that could be built from parts bought online without a background check exceeded the agency’s authority.
All three judges on the panel were appointed by former President Donald Trump, according to Reuters.
Cody Wisniewski, a lawyer for the Firearms Policy Coalition Action Foundation, said the ruling was a “massive victory against ATF and a huge blow to the Biden administration’s gun control agenda.”
The rule redefined the legal meaning of “firearm,” “frame” and “receiver” as written in the Gun Control Act of 1968.
Judge Kurt Engelhardt wrote in the decision that “law-making power—the ability to transform policy into real-world obligations—lies solely with the legislative branch.”
“Where an executive agency engages in what is, for all intents and purposes, ‘law-making,’ the legislature is deprived of its primary function under our Constitution, and our citizens are robbed of their right to fair representation in government. This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties,” he wrote.
Engelhardt said the rule does what the ATF might want Congress to do, but has not done.
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” he wrote.
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He wrote that ATF “attempted to take on the mantle of Congress to ‘do something’ with respect to gun control. But it is not the province of an executive agency to write laws for our nation.
“An agency cannot label conduct lawful one day and felonious the next—yet that is exactly what ATF accomplishes through its Final Rule,” he wrote.
In a concurring opinion, Judge Andrew Oldham fired a magazine of zingers at the ATF.
“ATF’s overarching goal in the Final Rule is to replace a clear, bright-line rule with a vague, indeterminate, multi-factor balancing test. ATF’s rationale: The new uncertainty will act like a Sword of Damocles hanging over the heads of American gun owners,” Oldham wrote, referring to an ancient tale of a deadly blade suspended by a single strand of horsehair.
“Private gunmaking is steeped in history and tradition, dating back to long before the Founding. Millions of law-abiding Americans work on gun frames and receivers every year. In those pursuits, law-abiding Americans (and the law-abiding gun companies that serve them) rely on longstanding regulatory certainty to avoid falling afoul of federal gun laws,” he wrote.
“But if ATF can destroy that certainty, it hopes law-abiding Americans will abandon tradition rather than risk the ruinous felony prosecutions that come with violating the new, nebulous, impossible-to-predict Final Rule,” he wrote.
The ATF rule, he wrote, “is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this. I concur in the majority’s opinion holding the Final Rule is unlawful,” he wrote.
Despite the ruling, the rule is likely to remain in place, at least for a while.
As noted by The Hill, the Supreme Court has left the rule in place throughout the court battles around it, and is likely to do the same now as the Justice Department moves to appeal the latest ruling to the Supreme Court.
