On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms “firearm” and “firearm frame or receiver.” This is the first of several posts in which I’d like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.
The Gun Control Act defines “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon….” 18 U.S.C. § 921(a)(3). An ATF regulation on the books from 1968 to 2022 defined a “frame or receiver” as “that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism” – in other words, to main part of the firearm to which the barrel and stock attach.
The Final Rule expanded “firearm” to include “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” And it redefined “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”
The impetus for these new definitions is the political controversy over “ghost guns,” a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as “80% receivers.” Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.
Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers. Private individuals have always been free to make their own firearms without such federal restrictions. The new definitions have the effect of subjecting hobbyists to federal controls.
The Fifth Circuit held that ATF may not change the definition of “firearm” enacted by Congress and that its redefinition of “frame or receiver” failed to reflect the original, common understanding of that term. It thus ruled the definitions to be beyond ATF’s authority and arbitrary and capricious.
In the Supreme Court, the government begins its defense of the Rule by asserting that so-called “[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes.” Not one of those italicized terms is even close to reality.
For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.
Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he served as a Firearms Enforcement Officer in ATF’s Firearms Technology Branch (FTB), the division that determines whether partially-machined material that can later be manufactured into a firearm constitutes a “firearm” under the Gun Control Act.
In 2004, Vasquez was selected as the FTB’s Assistant Branch Chief, and from 2008 to 2010, he held the Acting Chief and the Assistant Chief positions. He reviewed and approved hundreds of determinations of whether items were “firearms,” the majority of which related to the manufacturing of receivers for AR-15 style firearms.
Quoting the government’s brief in VanDerStok, Vasquez writes:
In reality, not just “anyone” with “basic tools” and “rudimentary skills” can take a parts kit and assemble a “fully functional firearm” at all, let alone in a “matter of minutes.” Even assuming the hypothetical “anyone” had the tools needed to construct a firearm, they also need a level of skill, patience, and determination that eludes most non-experts.
The government focuses on the Polymer80 parts kit for a Glock-style semiautomatic pistol, but fails to explain the supposedly simple process. Vasquez provides a step-by-step summary of fabricating a functioning firearm from this parts kit. He notes: “On their first attempt, non-experts are frequently unable to even get their firearms to work after many hours of frustration. Many beginners don’t know where to start.”
The government also fails to discuss the complexity of building AR-15-style firearms from parts kits, which is a far more difficult task than building Glock-style handguns. As Vasquez explains, “Machining the fire control cavity of a lower receiver in particular,” a task necessary to complete an unfinished receiver, “is a painstaking process that demands precision and requires technical expertise with uncommon tools.”
Not surprisingly, Vasquez’s explanations are highly technical and may be difficult to understand by persons who are not firearm experts. The illustrations in the brief are helpful. I won’t even try to define all of the terms he uses. But that’s why his brief is so significant. The Supreme Court should not be misled by the government’s unrealistic claim that anyone can make a functioning firearm from a kit in minutes. The average person won’t be able to make one at all.
Let’s start with building a Glock-style handgun. As to the tools needed, Vasquez relates, “most everyday citizens (to say nothing of a prototypical street criminal), do not have all of them on hand.” When California sued ATF in 2020 for not designating various “80-percent” parts kits as “firearms,” the government stressed that tools such as end mills “are beyond the common household tools’ that [California] repeatedly characterize as sufficient to complete this detailed work.” California v. ATF, ECF No. 64, No. 20-cv-6761 (N.D. Cal. Jan.
On November 11, 2021, Austin Murphy, a journalist from California, penned an article titled “How easy is it to build a ghost gun?” for The Press Democrat (Nov. 12, 2021). The article explores the complexities involved in building a firearm from scratch, showcasing that it requires expert knowledge and specialized tools. Murphy sought the assistance of a gun machinist to complete most of the work, highlighting the challenges faced even with professional help.
The process of constructing a firearm at home is detailed by Vasquez, emphasizing the precision and skill required. Murphy’s experience of building a functioning firearm from a Polymer80 kit with the help of experts took over seven hours, demonstrating the time and effort involved in the task. The article debunks the notion that building a gun at home is a simple task, showcasing that it is primarily undertaken by hobbyists rather than individuals without the necessary skills and tools.
The complexity of building a Glock-style pistol is further highlighted, with detailed steps involving drilling, milling, and assembly. Murphy’s struggles with certain components underscore the challenges faced even with expert guidance. Vasquez emphasizes that the government’s claim of anyone being able to build a firearm in minutes is unfounded, given the intricate process involved.
The second part of the article delves into the even more challenging process of building an AR-type firearm, which requires specialized tools and expertise. The government’s neglect of this aspect highlights the complexity involved in completing an AR lower receiver from a blank. The detailed requirements for drilling, milling, and assembly further emphasize the skill and knowledge needed to create a functional AR firearm.
In conclusion, the article refutes the misconception that building a firearm at home is a quick and easy task. The complexities involved in the process, as outlined by Vasquez and expert testimonies, showcase the expertise and resources required to assemble a fully functional firearm. The government’s assertion of easy accessibility to build firearms is debunked, highlighting the technical challenges and expertise needed for such a task. Please rewrite this text.
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