November 12, 2023
Taking exception to the Biden Justice Department’s propensity to make new gun laws instead of enforcing existing ones, a three-judge panel of the 5th U.S. Circuit Court of Appeals on Thursday declared “unlawful” the so-called “ghost gun” final rule that went into effect last year. As most Firearms News readers know, in late October the U.S. Supreme Court issued a ruling to allow continued enforcement of the rule as the matter is hashed out in the lower courts. Of course, while the rule is commonly called the “Ghost Gun” rule, the wide-ranging law addresses much more than just firearms without a serial number. While not actually putting a ban on making or possessing non-serialized, personally made firearms, it did redefine important legal terms dealing with guns, including “firearm,” “receiver” and “frame,” making the longstanding American tradition of building personal firearms pretty much a thing of the past.
In the unanimous decision in VanDerStok v. Garland, the court upheld an earlier district court decision on the matter, possibly setting the state for the Supreme Court to hear the case sometime in the future. Judge Kurt Engelhardt, a Donald Trump appointee, wrote for the court: “ATF, in promulgating its Final Rule, 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. That vital duty, for better or for worse, lies solely with the legislature.”
Judge Engelhardt further chided ATF leaders, writing: “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. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.
“Unless and until Congress acts to expand or alter the language of the Gun Control Act, ATF must operate within the statutory text’s existing limits.”
In a concurring opinion, Circuit Court Judge Andrew Oldham criticized the “limitless” nature of the final rule.
“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,” Judge Oldham wrote. “And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this.”
In a news alert to members, the Firearms Policy Coalition (FPC) called the decision a “huge blow to the Biden Administration’s gun control agenda.”
“ATF has no authority to make law, and the Biden Administration cannot circumvent Congress and the rights of the people through federal agency rulemakings—a point the Fifth Circuit just reiterated,” said Cody J. Wisniewski, counsel for the plaintiffs and general counsel and vice president of legal for FPC’s Action Foundation (FPCAF). “We look forward to defending this win and to continuing to deliver additional victories to the people in the future.”
With the recent decision, the case has been remanded back down to the district court to find a remedy.
About the Author
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.
If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com.