As I mentioned last week, Mountain States Legal Foundation is continuing to play offense in 2023 to defend our constitutionally protected rights. We’re doing that by embracing the fact that the most at-risk group in this country is not a sagebrush grouse, a two-inch fish, or a prairie dog. At Mountain States, we care most about protecting the Free American: The Other Endangered Species.

We were inspired by the Endangered Species Act (ESA), of all things. It’s a law passed by Congress in 1973 designed to identify species in peril of extinction and implement government protections against further decline. However, the whole point of listing a species on the official government list was to eventually get the animal off of the list. Recovery—not indefinite protection—is at the heart of the ESA.

In a perfect world, objective bureaucrats would be able to decide when a species was actually endangered. In theory, the appropriate factors under the ESA are:

  1. The decline of a species’ habitat
  2. Over-utilization of the species
  3. Disease impacting the species
  4. Impact of inadequate existing regulatory mechanisms
  5. Other factors, manmade or natural, that could impact its existence

What was supposed to be a tool to protect animals on the verge of destruction was quickly weaponized to destroy property rights. Especially in the American West—where the ESA is applied most commonly—bureaucrats and their friends in environmental groups have become a permanent barrier to economic development. Far from being a scientific approach to conservation, the regulatory scheme that various litigious organizations use (such as the Center for Biological Diversity)  effectively ensures that no species is ever delisted.

Turning the ESA On Its Head

Though the ESA has been twisted and abused to become a scourge to human progress rather than a boon to natural cohabitation, we thought it would be a good idea to turn ESA’s framework on its head.

Under the standards of the ESA, are Free Americans an endangered species?

Using a structure similar to the ESA, here’s how we determine who is most at risk. We use five factors for listing:

  1. The decline of the Free American
  2. Over-regulation of a Free American’s way of life
  3. “Diseases” or conditions that can erode rights
  4. The impact of inadequate existing protections
  5. Other factors, politician-made or bureaucratic, that can impact Free Americans

Using this framework, it is easy to see who is most at-risk from Big Government and its ideological backers.

Jennifer VanDerStok, who received MSLF’s Medal of Courage

Take our clients in VanDerStok v. Garland. Jennifer VanDerStok, Mike Andren, and gun parts manufacturer Tactical Machining all engage in the historic American practice of manufacturing their own guns. This is a right not only protected under the Second Amendment, but one that has been practiced before the American Revolution.

And yet, the ATF has enacted regulations that would severely curtail their rights. That’s why we sought and obtained an injunction against those regulations. One has to wonder: are folks like Jennifer, Mike, and Tactical Machining part of the Other Endangered Species? Using our framework, it would sure look like it.

  1. The ATF’s Final Rule would lead to a precipitous decline of Free Americans who can build their own tools of self-defense.
  2. The ATF’s Final Rule is the very definition of over-regulation. It isn’t enough for the ATF to clamp down on guns—they want to control every step of the building process, including what you build in your home garage.
  3. The ATF’s actions in the case are part of the disease of attempted disarmament: a  wider movement to destroy the right to keep and bear arms.
  4. The Supreme Court ruled in the 2022 case of NYSRPA v. Bruen that the Second Amendment is a robust and meaningful constitutional protection. Though this should be enough to stop the ATF, there is more to be done on specific questions like self-manufacturing to secure our rights.
  5. There are other politician-made obstacles to self-manufacture, like gun control groups that have litigated to expand the government’s control over our lives.

Jennifer, Mike, and Tactical Machining are most definitely part of the endangered species of Free Americans, and they need our protection the most.

Upholding Our Commitments

Almost all of our clients fit under this framework. Ranchers, independent energy producers, artists, teachers, and so many others are in danger of losing their liberties at the hands of government. They are Free Americans, and Mountain States is here to keep them free. It’s part of our commitments to the Constitution and the promises our Founding Fathers made over 200 years ago in our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

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