Following the argument in the Supreme Court in Garland v. VanDerStok on October 8, pundits have been trying to interpret the implications. In its Final Rule, ATF expanded the definition of “firearm” beyond what Congress provided in the Gun Control Act (GCA) and expanded the definition of “frame or receiver” beyond its own previous definition from 1968. Serious questions were raised during the argument regarding the extent to which an agency can revise a criminal statute.
Justice Thomas raised concerns at the beginning of the argument, questioning Solicitor General Prelogar about whether the regulation covers all of Chapter 44 of the GCA and whether it applies under section 924, which provides criminal penalties. Prelogar confirmed that it does apply to both, creating a situation where a person could be committing a felony based on which definition of “firearm” is used.
Justice Kavanaugh delved into the implications of the agency’s expansion of the criminal law, particularly focusing on mens rea. He expressed concern about sellers who may not be aware that they are violating the law and could face criminal charges.
Prelogar explained that certain requirements have a “willfulness” standard while others only require “knowledge.” She reassured the Court that sellers could seek guidance from ATF on whether they are complying with the law.
However, Justice Kavanaugh questioned whether a person could be charged under the provision if they truly believed they were not violating the law. Prelogar acknowledged the theoretical possibility but believed it was unlikely for the government to prosecute in such cases.
Despite Prelogar’s assurances, concerns remain about the potential for prosecution under the expanded regulations. Justice Kavanaugh highlighted the issue of classification letters and the impact of ATF’s repudiation of prior classifications.
The exchange with Justice Gorsuch also raised concerns about lenity and notice, pointing to inconsistencies in the government’s interpretation of the law. The debate surrounding the Final Rule and its implications continues to be a topic of contention.
In 2021, it was stated that an unfinished frame or receiver does not meet the statutory definition of ‘firearm.’ Prelogar responded by mentioning that ATF has always considered whether a partially complete frame or receiver can be easily converted to a functional condition. However, the Final Rule expands on this concept.
One of the issues at hand is the discrepancy in the definition of “firearm” in § 921(a)(3)(A) and (B). While (A) includes a weapon that “may readily be converted” to expel a projectile, (B) does not contain similar language when referring to “the frame or receiver of any such weapon.” Justice Barrett noted that other definitions, such as “destructive device” and “machinegun,” make reference to parts in a way that the definition of “firearm” does not. This case revolves around the interpretation of statutory text, and the contrast in definitions is quite evident.
Justice Barrett also mentioned Fifth Circuit Judge Oldham’s concern about the regulation potentially turning lawful AR-15 owners into criminals due to the ease of converting AR-15 receivers into machine gun receivers. Prelogar argued that just because something can be readily converted into another item does not mean it falls under the same regulatory category. However, the issue lies in the fact that a machinegun is defined to include the frame or receiver of such a weapon, and it only takes a few modifications to convert a semiautomatic receiver into a machinegun receiver. While ATF has not regulated AR-15s as machine guns, the Final Rule has the potential to change that stance.
Prelogar used an analogy of shorts and pants to illustrate the concept of regulation, stating that just because something can be converted into another item does not mean it falls under the same regulatory framework. Justice Jackson raised the question of whether the agency has exceeded its statutory authority by criminalizing conduct that was not initially criminalized by Congress.
Peter Patterson, representing the respondents, presented a clear statutory argument and also mentioned ATF’s previous test of critical machining operations. Justice Barrett inquired about the validity of this test, to which Patterson agreed.
The Court will likely focus on statutory text in this case, as Congress has defined “firearm.” In a recent case, the Court emphasized the importance of respecting Congress’s definitions. However, the Court may also consider the respondents’ argument regarding the critical machining test that was followed before the adoption of the Final Rule.
