Biden Administrations’ New “Ghost Gun” Regulation May Be Illegal

Letters to the AmmoLand Editor Large
Letters to the AmmoLand Editor Large

WASHINGTON, D.C. USA – -(AmmoLand.com)-  The Justice Department’s [DoJ] new proposed regulations for “ghost guns” – i.e., guns made from kits the allow buyers to assemble firearms, and guns made using 3D printers – to require retailers to run background checks, and to force manufacturers to include a serial number to help trace such devices, may run afoul of a recent federal appeals court decision which sought to rely upon the same tactic of more broadly defining a statutory term, suggests public interest law professor John Banzhaf.

In order to accomplish its goal, DoJ would very substantially expand its regulations defining the statutory term “firearm” – and the related terms firearm “frame or receiver” – to include many smaller parts which could go into the assembly of a gun.

For example, the rule would expand the current definition of “firearm” to include “a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.”

But, suggests Banzhaf, this redefinition of the statutory terms would be incredibly broad, and could well amount to a major re-writing of the statute, without any congressional action, by the Bureau of Alcohol, Tobacco, and Firearms [ATF].

Indeed, as the agency itself admits, “these courts’ interpretation of ATF’s [current] regulations, if broadly followed, could mean that as many as 90 percent of all firearms now in the United States would not have any frame or receiver subject to regulation.”

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It also concedes that the “ATF’s regulatory definitions of ‘frame or receiver’ do not expressly capture these types of firearms (i.e., split/multi-piece receivers) that now constitute the majority of firearms in the United States, and that “neither the upper nor the lower portion of a split/multi-piece receiver firearm alone falls within the precise wording of the regulatory definition.”

And as Attorney General Merrick B.Garland just candidly admitted to a House appropriations subcommittee, it was even unclear whether ghost guns “are defined as firearms themselves.”

But when this agency tried to use the same tactic – dramatically expanding a statutory definition to give it more power to regulate firearms – the 8th Circuit Court of Appeals shot it down.

In Gun Owners of America v. Garland, the federal appeals court invalidated the Trump administration’s modest efforts at gun control; holding that a rule by the ATF banning “bump stocks” – attachments which permit rifles to be fired rapidly somewhat like an automatic weapon – went too far, and ruled that agencies will be given much less judicial leeway than in the past in re-interpreting statutes to achieve various goals.

In that case, the administration’s attempt to classify bump stocks as “machine guns”, so the agency could regulate these devices, went too far, and the agency’s interpretation was held to be no longer entitled to the traditional deference [Chevron deference] accorded decisions by the executive branch, says Banzhaf, who teaches the laws governing federal agencies.

So this new proposal to reclassify gun parts, or possibly even instructions for 3D printers to create these parts, is likely to run afoul of this new court precedent, since such a broad expansion of well understood terms (“firearm” and firearm “frame or receiver”), and its drastic consequences and expansion of federal regulatory power, would seem to be far more objectionable, both legally and by the gun industry, than the more modest effort to simply classify bump stocks as machine guns.

The same problem, and legal objection, would seem to apply even more strongly to this new attempt to redefine “firearm,” says Banzhaf. As the Gun Owners court explained:

“Congress could amend the statute tomorrow to criminalize bump-stock ownership, if it so wished. . . .But as judges, we cannot amend [the statute]. And neither can ATF. This is because the separation of powers requires that any legislation pass through the legislature, no matter how well-intentioned or widely supported the policy might be.”


JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School
“The Man Behind the Ban on Cigarette Commercials”
FAMRI Dr. William Cahan Distinguished Professor
Fellow, World Technology Network
Founder, Action on Smoking and Health (ASH)
Inventor of the “Banzhaf Index”
2000 H Street, NW, Suite Stockton 402
Washington, DC 20052, USA

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xtphreak
xtphreak(@xtphreak)
6 months ago

“…the 8th Circuit Court of Appeals shot it down.
In Gun Owners of America v. Garland, …”

GOA v Garland was heard in the 6th Circuit, not the 8th Circuit.

Bill
Bill(@navy-cwo)
6 months ago

Will try this again:
For example, the rule would expand the current definition of “firearm” to include “a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.”

Modern smokeless powder does NOT explode; it burns rapidly!
Let’s see if this one is allowed to pass!

Last edited 6 months ago by Bill
Bill
Bill(@bill1776)
6 months ago

Before long, steel plumbing pipe would need to be registered and serialized with the ATF. Fun times.

Tionico
Tionico(@tionico)
6 months ago

Well well well, what a tasty surprise. A COURT that actually looks at what the US Constitution SAYS then uses THAT to determine the outcome of a case before it.

Henry Bowman
Henry Bowman(@henry_bowman)
6 months ago

All infringements are totally illegal and rightly unenforceable unless federal agents violate one’s Rights under color of law (BTW that’s a FELONY).
It is illegal and uncontitutional to allow agencies to administratively redefine what is written in LAW. And when the law itself is VOID as per Marbury v Madison, they are conspiring to deprive us of Rights under color of law, also a felony.
What we need to do is go en masse into DC and ARREST THEM ALL.

Ryben Flynn
Ryben Flynn
6 months ago

It’s illegal just like the bump stock ban. I’m sure everybody knows by now a Federal Appeals Court told the ATF you can’t use the Chevron Deference and a you can’t change the definition of a machine gun just because.

nrringlee
nrringlee(@nrringlee)
6 months ago

The Chevron Standard must go. Law is law. Law is created by legislatures. When legislatures say ‘up is up’ bureaucrats must not be allowed to say ‘up really means down.’ I have encountered this insanity while working with federal land management agencies on wildlife conservation issues. These clowns treat law like it is a bowl of Orwellian Jello. Words mean anything they want them to mean at a particular time to fit a particular situation. It is like a Kafka novel. Insane.

Tionico
Tionico(@tionico)
6 months ago
Reply to  nrringlee

or to use a much older but equally valid simile: just like the queen, down Alice’s rabbbit hole, “words mean what I say they mean”.

Sorry pals at BATF, the Constitutoin clearly places the task of MAKING law into the hands of the two houses of our legislature. No exceptioins.

That document forther guaratnees a REPUBLICAN form of government to the residents of EACH of the states. Yet we have dick taters mandating everyone within their fiefdom slap a mug nappie accross their faces. some of them, even in the privacy and “security” of their own home, alone.

Catatonic
Catatonic(@catatonic)
6 months ago
Reply to  Tionico

“words mean what I say they mean”

Wow! That sounds like something that would come from the mouth of Nancy Pelosi!

Laddyboy
Laddyboy(@laddyboy)
6 months ago

My comment which I just posted was REMOVED! I did not cuss! I used no names! I only stated FACTS! COME ON MAN!!!!

Laddyboy
Laddyboy(@laddyboy)
6 months ago

Constitutionally speaking, ALL “gun control laws” ARE ILLEGAL! One must consider HOW the ATF was formed. The ATF/BATF/BATFE was formed ILLEGALLY by the “director of the IRS department”! Thus, ALL “rules and regulations” the Bureaucracy of the ATF makes IS ILLEGAL!!!! This ILLEGALLY INSTITUTED DEPARTMENT MUST BE ABOLISHED/DISMANTELED/CANNED/REMOVED from OUR government in its ENTIREATY!

Montana454Casull
Montana454Casull(@rld454c)
6 months ago

Clown show Joe Biden is a delusional idiot and does not care about laws . He is ilegitiment and anything that infringes is not going to be recognized by most 2 A supporters .stuff your pen where the sun don’t shine Joe .

Henry Bowman
Henry Bowman(@henry_bowman)
6 months ago

The whole regime is 100% illegitimate. Every branch and level of govt is at war against the Supreme Law of the Land and all have violated their Oaths to the Constitution. THEY NEED TO BE ARRESTED.

Last edited 6 months ago by Henry Bowman
Stag
Stag(@eriggle83)
6 months ago

May be? It is. All arms laws are unconstitutional and therefore illegal.

CourageousLion
CourageousLion(@wizardkiller)
6 months ago

And even “CONgress” is supposed to follow the Constitution which would make it impossible to make something that was legal illegal following the expost facto requirements of the Constitution which expressly forbids making something illegal that was legal and punishing someone for something that was legal for years. Laws should be SIMPLE. If there is a victim, there is a crime. If not, there is no crime. The Founding Fathers considered a FELONY to be a heinous act. Not filling out a piece of paper correctly is hardly a heinous act. A simple way to tell if you are living… Read more »

Henry Bowman
Henry Bowman(@henry_bowman)
6 months ago
Reply to  CourageousLion

I agree, but there is no justice. There are no free elections, and for the most part, no free speech.

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Bill
Bill(@navy-cwo)
6 months ago
Reply to  CourageousLion

I remember a tax hike done under the Clinton administration being back dated to 1 January of the year it was passed. Is this not Ex Post Facto?

Tionico
Tionico(@tionico)
6 months ago
Reply to  Bill

Yes indeedypie.

Once a tax is imposed, folks can change some things they do to reuce their tax liability. If the tax law changes retroactiveym one cannot. Not cricket a tall.

Darkman
Darkman(@darkman)
6 months ago

Since when did a Law get in the way of Democrats Ideology or Agenda

nrringlee
nrringlee(@nrringlee)
6 months ago
Reply to  Darkman

Since never. They are the People we have been waiting for. Didn’t you get the memo? They are the law and can change the law when their quest for total power requires it. Come on, man. Get with the program. All of that Constitutional Republic stuff you are clinging to is starting to look like the guns and Bibles you are clinging to. Give it up. Utopia is right around the corner. Just ask Kamala Harris.

Henry Bowman
Henry Bowman(@henry_bowman)
6 months ago
Reply to  nrringlee

Ooh, I’ve been sarc’ed.

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Donttreadonme
Donttreadonme(@donttreadonme)
6 months ago

Shall not be infringed. Any government law/policy that makes it harder for good people to acquire arms is unconstitutional. Period, the wnd.

Mack
Mack(@mackhh)
6 months ago

They are illegal.

If you want to know why, email me.

Jonesy
Jonesy(@61deacon64)
6 months ago
Reply to  Mack

Spammer ?