Issue Summary
In the United States, Congress is supposed to make the law, and the Executive Branch is supposed to enforce the law—but our system of government has been turned on its head. Now, unelected bureaucrats apparently have the power to interpret and implement the law as they see fit—and worse, sometimes those bureaucratic agencies try to change the letter of the law to suit their preferences.
For years, gun control activists tried to force the federal government to regulate all kinds of objects that do not meet the legal definition of a “firearm” or a “firearm frame or receiver,” but they haven’t been very successful. But now, the Department of Justice (“DOJ”) and Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) are doing the work for them. Except, instead of trying to stretch the law, they’re now trying to rewrite it.
In May 2021, the DOJ, under the explicit direction of the Biden Administration, proposed a new rule to redefine what the federal government considers a “firearm” to regulate millions of firearm parts and non-firearm pieces and materials that the ATF does not have the congressionally mandated authority to regulate. This newly proposed rule completely alters the legal landscape surrounding firearms regulation and seeks to give complete discretionary power to the ATF and its Director to decide what the ATF can regulate and how.
This is the ultimate attempt to usurp existing law and give the ATF a complete “I’ll know it when I see it power.” All without any recognition of the rights of the American people, any respect for the rule of law, any acknowledgment of limits of the ATF nor DOJ’s statutory authority, or any attempt to uphold the duty of agencies entrusted with the enforcement of criminal law to ensure that the enforcement of that law is not ill-defined and arbitrary
The Center to Keep and Bear Arms has submitted a formal response in opposition to the proposed rule.
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Our Comments
On May 21, 2021, the Department of Justice proposed changes to ATF regulations to redefine or newly define several terms relating to the legal ownership, possession, and self-manufacture of firearms (terms such as “firearm,” “frame or receiver,” “complete weapon,” “privately made firearm,” and “readily”).
Under the proposed rules, a variety of inert objects used to assemble, manufacture, and craft guns would become regulated as if they were firearms in their own right. In the past, ATF has recognized that such regulatory expansion is not within its authority.
The proposed rule also suggests new definitions for “firearm” and “frame or receiver” that are so broad and vague that no reasonable person could accurately interpret them. The new definition the ATF is proposing would result in firearms with multiple frames and receivers that are all regulated as if they were firearms themselves—including federal serializing, background check, and transfer requirements.
Worse, the ATF and DOJ make these definitions unintelligible and suggest individuals seek the ATFs guidance to ensure compliance, all while retaining the right to refuse that guidance whenever it sees fit. Accompanied by new enforcement and prosecution powers, these proposed regulations would have a dramatic chilling effect on Americans’ exercise of their fundamental, natural self-defense rights.
Notably, the rule would create an entirely new set of federal regulations for “privately made firearms,” pushing the entire nation in the direction of the most restrictive states.
This particular change in ATF’s definitions is a goal of gun-control activists, who had earlier sued the federal government to force such changes and choke off the practice of self-manufacturing. MSLF’s Center to Keep and Bear Arms has sought intervention against their efforts in the cases of California v. ATF and Syracuse v. ATF.
The new rulemaking sees the federal government essentially switching sides in the firearms definition dispute by proposing to give anti-gun activists precisely what they have sought for years in their lobbying efforts and lawsuits against the federal government.
As part of the rulemaking process, the DOJ and ATF are required to accept public comments on the proposed rule, review and address these comments, and make use of them in formulating a final rule.
Public pressure can dramatically affect agency rulemaking. MSLF’s Center to Keep and Bear Arms has encouraged gun rights advocates to offer relevant feedback on the proposed rules during the comment period. In all, ATF received over 290,000 public comments on the proposed rule.
Click here to download our comments opposing the proposed rule change.
