July 27, 2023
When the judge in VanDerStok v. Garland issued a summary judgment earlier this month in favor of the plaintiffs, effectively striking down the Biden Administration’s so-called “ghost gun” rule that redefined some gun parts as firearms, the Mountain States Legal Foundation (MSLF) was particularly gratified.
MSLF, a Denver-based, non-profit public interest law firm dedicated to restoring the rights in the Constitution, focusing on Second Amendment, natural resources and energy, and equal protection litigation, represented the plaintiffs in the lawsuit against the federal government, and the victory was a major one for both the group’s clients and the rule of law. Brian Abbas, director of MSLF’s Center to Keep and Bear Arms, said his firm’s clients were directly affected by the sweeping Biden Administration rule, so a court challenge was necessary to protect their rights.
“That rule was just so over broad that there's no way it could stand,” Abbas said in an exclusive interview with Firearms News. “I mean, the rule was so broad that the ATF had to explicitly exclude precursor materials such filament and even a block of metal.
“The self-manufacture of firearms is deeply ingrained in American culture, and has been long before the Declaration of Independence. People like our client Jennifer VanDerStok engage in this practice, relying on businesses like our other client, Tactical Machining, to acquire the appropriate pieces of metal, tools and parts.”
As many readers will recall, the Biden Administration tried to get such a law passed in Congress, but failed to get the necessary support in either the House or Senate. The Justice Department proposed such a rule back in 2021, but received little support. Finally, President Biden pushed and pushed until the new ATF rule was set, redefining many gun parts as firearms.
“What is important to understand is that if the ATF had its way, non-firearms could be considered firearms, and so could mere collections of parts,” Abbas said. “The ATF effectively granted itself authority to regulate other material (such as tools, instructions, guides and marketing materials) to make this rule happen.
“This rule threatened to put law-abiding companies out of business and subject millions of Americans to felony prosecution for shipping, receiving and possibly even owning things that have never before been considered firearms.”
Abbas said that MSLF’s arguments on their clients’ behalf were straightforward—that the ATF exceeded its authority from Congress under the Gun Control Act when it tried to redefine historically non-firearms into firearms.
“Besides the fact that the law explicitly does not delegate such a power to the ATF, we argued our point based on the ATF’s own statements,” Abbas said. “For decades, the agency has said in multiple publications that the kinds of objects in question are not firearms, and thus outside of the scope of regulation. To suddenly make an about-face and upend that precedent severely threatens both the livelihood and legal status of businesses and citizens everywhere.”
In his early July ruling, Judge Reed Connor of the United States District Court for the Northern District of Texas, agreed, writing: “[The ATF contends] that drawing such a distinction [between non-firearm objects and firearms] will produce the absurd result whereby a person lawfully prohibited from possessing a firearm can obtain the necessary components and given advances in technology, self-manufacture a firearm with relative ease and efficiency. Even if it is true that such an interpretation creates loopholes that as a policy matter should be avoided, it not the role of the judiciary to correct them. That is up to Congress. And until Congress enacts a different statute, the Court is bound to enforce the law as written.”
To Abbas, the ruling was a welcome one.
“Basically, the court said that the rule was just so over broad that it regulated things that the ATF was never meant to regulate, which was firearm parts and items that are not firearms, that could potentially one day become firearms but they are not firearms.
“So essentially the court said, your block of metal can't magically become a receiver just because you include some instructions with it.”
Abbas said the ruling was an important one for a number of reasons.
“It helps reaffirm that individual Americans have the right to build their own firearms because, whether the ATF likes it or not, there is a strong history and tradition of Americans building their own firearms for self-defense purposes,” he said. “A lot of times there are states that just have utterly ridiculous regulations when it comes to actually purchasing your own firearm, that people want to build their own and they're perfectly well entitled to do that.”
Of course, the government has appealed the ruling to the Fifth Circuit Court of Appeals. Oral arguments are set to begin Sept. 7, and MSLF plans to stay the course and continue advocating for their clients.
“We’ll stick with our rather simple but potent argument: A chunk of metal is not a gun, and the ATF doesn’t have the authority to say otherwise,” Abbas said.
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.
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