@ulyssessword comments on "Culture War Roundup for the week of March 31, 2025

Culture War Roundup for the week of March 31, 2025

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gattsuru 4mo ago · Edited 4mo ago

VanDerStok has dropped.

[previous discussions]

In 2022, the Biden administration released the "frames or receivers", often known as "ghost gun" rule, reinterpreting the Gun Control Act of 1968. This law controls much of what distinguishes a "firearm" under federal law for purposes such as sale, manufacture, transfer, gunsmithing, and licensing of the above. Notably, it had long had an exception for self-produced firearms, either for Commerce Clause reasons or to avoid crushing hobbyists. There was even a small industry, dating back decades, in producing 'kits', of incomplete firearms or tools for creating firearms that could be manufactured at home or in common workspaces: many got explicit ATF permission.

Though these things could make firearms, they were not themselves firearms... until 2022, where they retroactively were. The previous standard had a concept of "80% lowers", which, though not official, were so well-understood in the business that the ATF has a webpage (still active today, don't take legal advice from the government!) specifying exactly what level of remaining manufacturing would be required to turn a non-firearm into a firearm. While obstinately focused on specific manufacturers with especially easy-to-produce firearms kits, this rule was expansive, poorly defined, and often incompatible with the basic text of the statute: the ATF argued that it could apply to nearly any material, under nearly any conditions, based not solely on the actual product but even on its marketing material or separate tools.

Nor was this rule some minor paperwork technicality. The simple unlicensed manufacture for sale of a firearm can earn five years prison for each count, and the guidelines range with no previous criminal history goes from two to three years. And there's a whole set of downstream regulations and statutes that can add onto that.

What did the court decide?

There, remember, the GCA authorizes ATF to regulate “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.” Inhering in this language are two requirements. First, a “weapon” must be present. Second, that “weapon” must meet one of three criteria: It must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. As the Fifth Circuit saw it, §478.11’s provisions addressing weapon parts kits are facially invalid because no weapon parts kit can ever satisfy the statute’s two requirements. We disagree because, to our eyes, at least some kits will satisfy both.

There are some annoying procedural frustrations, here. Neither the questions presented, the cert petition, the response to cert petition, nor the district court opinion mention the challenge as "facial" at all. Only the last brief from respondents uses the word "facial", as the last allowed full filing, and does not do so under the defense that literally any reasonable application of the statute would prevent pre-enforcement challenges to any unreasonable ones. The SCOTUS opinion cites a BlackHawk complaint, but it and an appeals court opinion use the word only in the sense of the regulation being directly in conflict with the statute. SCOTUS does not provide a citation for the principle that APA challenges must show every possible enforcement of a law would be unreasonable; a dissent points out that the nearest similar matters are Salerno, Reno v. Flores, and INS v. NCIR, none of which were APA questions.

The federal government -- under Biden! -- specifically disavowed that "no set of circumstances" standard :

JUSTICE SOTOMAYOR: General, I want to know what our standard of review here is, because I can imagine a frame or receiver that is just a block of metal that -- not readily convertible. I can also imagine some part kits that require such tremendous amount of work that it doesn't qualify as readily convertible. So, if I can point to one item that wouldn't qualify, would -- could be swept up potentially by your -- by the new regulation, is that enough to defeat a facial challenge? Is it enough, or is that always an as-applied challenge?[...]

JUSTICE SOTOMAYOR: You -- you use the Reno -- you use the I -- our statement in INS versus NCIR, which basically tracks what you're just saying. But, in Reno versus Flores, we used a different standard and said that a respondent, to prevail, must establish that no set of circumstances exists under which the regulation would be valid. You didn't go that route.

GENERAL PRELOGAR: That would be an even more stringent standard [crosstalk] and I think a burden that Respondents can't surmount. But we think, even under the INS standard that we cite in our brief, it's very clear that there's nothing on the face of the Gun Control Act that [crosstalk] prohibits this approach to regulation.

What were the gun makers asked during oral arguments?

JUSTICE JACKSON: [...] Do you concede that under a facial challenge like the one that you've brought, your task is actually to demonstrate that your alternatives are the only permissible ones under the statute?

In theory, this isn't the last word on the matter. This was not a Second Amendment challenge to the regulation; you have to look elsewhere to see how absolutely doomed any such attempt would be. The majority opinion turning the plaintiff's question into a facial challenge does leave open as-applied challenges, should defendants be willing to risk their freedom at the court's pleasure, with the knowledge that even an imminent victory could be mooted and they be left with the bill.

It'd be funny to imagine the Trump admin taking some pro-gun funhouse mirror of the Obama-era suit-and-settle, or to willfully lose suits by arguing them as poorly as possible (Guilliani needs ~~a job~~ something to keep him busy, right?). We had a natural experiment on that, though, last time around. The punch line is that it didn't matter what the settlement said, because the contract was just a piece of paper.

Thankfully(?), there will be volunteers, whether they know it or not: the ATF's rules are so broad that they cover anything but a literal "unformed blocks of metal", and I'm not convinced that even the duration of the Trump admin will keep to the bounds of that rule. But I don't think they'll get anywhere with legal challenges; lower courts willing to defy Bruen are not going to read this opinion within its own four corners, and SCOTUS is punting on everything else anyway. Anyone that thinks the revival of the commerce clause would apply to them is gonna have a bad time no matter how square they are in Wickard v Fillburn territory. Instead, we're going to be stuck in a world where people don't even know the borders of the law that they're defying.

Takeaways:

The court did not just decide the case for any enforcement of the regulation, but in dicta endorsed a bar that is low: a half-hour to hour of unskilled work with power tools available in normal stores. There's a fun takeaway in the majority opinion about a kit that someone was able to put together in 21 minutes, and perhaps that could be a reasonable bar, but it kinda falls apart when you find out that the guy was a trained mechanic who looked through several video guides beforehand and ended up doing it wrong enough the thing needed to be repaired later. The government didn't actually commit to nonenforcement for marginal cases (for whatever 'commitment' matters), but even had it, there are Actual Industrial Manufacturing Processes that do not require anything unavailable from Home Depot that could easily crank out a couple receivers from raw aluminum billet in that time. And, unsurprisingly, the usual crowd has taken this interpretation to every possible end; it might take a few months for lower courts to run rampant with it, but they'll make a Bungie AI look like a Jetsons character.
This could be a new era in regulatory overreach, where Trump could write hilariously unlawful regulations and successfully defend them under the 1% of coverage that was actually within a statute, but odds are better this is just another One Case Only special, given the extent the opinion shies away declaring any test proper and leaves open space for the conventional words-mean-things review where Gorsuch hasn't decided that the statute's dead author had wanted to use artifact nouns. Again, months, not years.
Did I mention Gorsuch wrote this opinion? I think that puts to rest the various claims that his extremism-in-defense-of-virtue rulings like McGirt or Bostock were just the inevitable conclusions of strict textualism: the textual analysis in this opinion is little more than mind-reading about what the writers must have wanted to cover and intended to do.
There could be a statutory fix. Stranger things have happened, albeit not often. I'd not give it good odds, though, not just that the politics aren't in favor of it passing, but also that were it passed, there's no reason for the ATF to not just find the rule it wants again from the breadcrumbs. Once you endorse the dictionary-writers changing the meaning of words to fit whatever goal the Blue Tribe wants today, this sort of fair-weather textualism can be stretched to whatever one side wants.
This guts the rule of leniency (at least for the purpose of gun stuff). If any interpretation of a rule can defend every interpretation, with a defense limited to post-jeopardy pleadings, people are stuck stumbling in the dark. There's some serious due process concerns, and they are unreviewable now.
Maybe we'll get some massive revision in other cases on Second Amendment matters, but the tea leaves aren't looking great. Lower courts have been actively and aggressively defy the explicit text of well-settled law and good policy under nitpicking pretext, and there's been no serious attempts to slap them down. Duncan v. Bonta has dropped for a third time, it got the exact same answer as before the last GVR, it didn't even attempt any of the demanded Bruen analysis, and it's so unnewsworthy that if I had to write it up I'd be stuck focusing more on the VanDyke YouTuber stuff. Maybe one of Duncan, Ocean State Tactical, or Snope will get actual per curium rather than a GVR that lower courts resist, but even the actual cases the court hears get multilated by the lower courts, and SCOTUS clearly isn't willing to provide any protection from any of the multitude of abuses of Heller and Bruen we've seen, years in.
That's two dissenting judges. This court got two. Yes, Kavanaugh separately wrote a concurrence that quibbles about the due process ramifications of only protected because the law requires "willful" violations, but given the ATF's record here and elsewhere, the court's unwillingness to take challenges to other expansive understandings of 'willful', and his inability to get literally anyone to sign onto that concurrence, that's weak medicine. Dedicated activists can take this, along with endless punting on 'easy' cases that would favor Second Amendment rights as a call to bring undeniable cases or to go VanDyke Or Bust for any future SCOTUS noms, but for everybody else, this makes The_Nybbler's position seem the reasonable one. You aren't going to reform the entire judicial system, state and federal, in any living person's lifetime, and nothing less will actually get your freedom back, while talking heads will pretend it's an unabashed success of the conservative movement that they didn't get everything they wanted the second they wanted it. Where planting fig trees makes for a great metaphor, it runs into problems when an entire political movement has been wildly successful bringing the copper nails around every four to eight years. The soap box, ballot box, and jury box might protect someone doing something, but they don't protect your rights.

Context

ulyssessword gattsuru 4mo ago

the ATF's rules are so broad that they cover anything but a literal "unformed blocks of metal",

Was there ever any further debate on what they meant by "primordial state" in that legislation? To my mind, a formed (simple block) piece of precisely-alloyed metal is not "primordial" in the sense of "from the beginning of the world" or "constituting an origin; fundamental". To reach that status you'd have to go back to bauxite or magnetite ore that you could dig from the ground.

gattsuru ulyssessword 4mo ago

Not much. The court filings mostly has the plaintiffs argue it as vagueness, and the state punting on that question as only relevant for as-applied challenges. If you know much about how milling works it's kinda incoherent -- not just in alloyed makeup, but also heat treatment and method of manufacture -- but I don't think anyone involved really did, or would care if they had.

In the oral arguments there was one aside, but it was heavily focused on metaphors and contradictory:

JUSTICE ALITO: I'm going to show you. Here's a -- here's a blank pad, and here's a pen, all right? Is this a grocery list?

GENERAL PRELOGAR: I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

JUSTICE ALITO: All right. [crosstalk] If I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?

GENERAL PRELOGAR: No, because, again, those items have well-known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use. And I think the further evidence comes from the fact that Respondents themselves agree that a disassembled gun qualifies as a weapon. So this is on page 37 of the VanDerStok brief.

JUSTICE ALITO: Okay. So that's helpful. So your definition is a group of components that can readily be converted into something and have no other use. They must have no other use in order to constitute that thing?

GENERAL PRELOGAR: In the circumstance

JUSTICE ALITO: In that situation, they already constitute that thing?

GENERAL PRELOGAR: I think that you can recognize that something is a weapon even if it's non-functional if it is clear from objective evidence of --

JUSTICE ALITO: No, I think that certainly is true from the face of the statute because it has to be -- it's sufficient if it's capable of being converted into -- into something that can expel a projectile. All right. Thank you.

JUSTICE BARRETT: General Prelogar, I just want to follow up on Justice Alito's question about the omelet. Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?

GENERAL PRELOGAR: Yes. And I think that that presses on the -- the more apt analogy here, which is that we are not suggesting that scattered components that might have some entirely separate and distinct function could be aggregated and called a weapon in the absence of this kind of evidence that that is their intended purpose and function. But, if you bought, you know, from Trader Joe's some omelet-making kit that had all of the ingredients to make the omelet and maybe included whatever you would need to start the fire in order to cook the omelet and had all of that objective indication that that's what's being marketed and sold, we would recognize that for what it is. And it -- it doesn't stretch plain English to say, I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them, especially under statutory language that refers to something like breakfast foods or things that can be readily converted to make breakfast.

I think the logic would not include raw bauxite ore, in the same way that the hypothetical did not turn to raw wood pulp or a laying hen, but I'd not want to bet on it. Given the incoherence -- something counts if it has "no other use", except if it's marketed the right way it could have other uses -- I don't think anyone's seriously drawn lines for the question of how far they're willing to take the rule.

Thanks for link. Based on that last quote, I definitely wouldn't want to buy a "0% receiver". I'd even be a bit worried about buying a small piece of 6061 aluminum bar stock from a (normal) metal supplier. Raw ore is probably outside the letter of the law, but I know how much I trust the courts with that.

I think it's safe to say that an empty field is not a gun. Until you start digging.

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