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.”
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