You’ve got to love the Fifth Circuit Court of Appeals; they’ve been on a roll lately. They shot down the bump-stock ban in Cargill v. Garland. They struck down the ATF’s pistol brace rule in Mock v. Garland (which was the basis for the Northern District of Texas likewise ruling against the ATF.

Now they’ve turned their attention to the odious ATF’s equally odious frame/receiver rule (declaring unfinished, inert lumps of metal to be firearms) in VanDerStok et al v, Garland. A three judge panel ruled against it.

The judges found that the ATF not only exceeded their authority, but directly contradicted statutory law. I generally agree with them; I’ve made many of the same arguments. But I do want to pick one nit.

ATF’s 1978 regulatory definition sufficiently captured most firearms of the era. Modern firearms, however, have developed such that many firearms no longer fall within the definition. In the Final Rule, ATF states that “the majority of firearms in the United States” no longer have a clear frame” or “receiver” that includes all three elements of the prior definition (that is, a hammer, bolt or breechblock, and firing mechanism). ATF uses the example of an AR-15,6 which does not have a single housing for the bolt (which is part of the “upper assembly”) and the hammer and trigger (which is part of the “lower assembly”).

That’s not something that happened recently, which legislation just hasn’t caught up with as yet. Striker-fired firearms are hardly new. The first striker-fired firearm was invented in 1878; 60 years before the Federal Firearms Act of 1938, and 90 years before the Gun Control Act of 1968. Semiautomatic pistols, where no one part of the firearm contained all of the defining parts, date back to at least 1897.

It’s now 2023, and those types of firearms have been around for well over a century. And yet Congress never saw fit to include them.

Their Honors also had issues with the ATF’s thinking processes, such as they might be.

There is also a clear logical flaw in ATF’s proposal. As written, the Final Rule states that the phrase “frame or receiver” includes things that are admittedly not yet frames or receivers but that can easily become frames or receivers—in other words: parts. As the district court put it, under the Final Rule, “ATF may properly regulate a component as a ‘frame or receiver’ even after ATF determines that the component in question is not a frame or receiver.” Such a proposition defies logic: “a part cannot be both not yet a receiver and a receiver at the same time.”

Oh! Schrodinger’s gun. As opposed to Chekov’s gun, I suppose.

They caught the ATF attempting conflate laws. The ATF’s rule claimed the power to regulate gun “parts” by noting that the National Firearms Act assigns them the authority to regulate separate parts, like full-auto trigger groups and silencer components, so naturally they can do that with non-NFA parts, right?

No. TL;DR: The authority to regulate non-NFA parts was specifically taken away.

The district court correctly held that ATF has no authority whatsoever to regulate parts that might be incorporated into a “firearm” simply because Congress explicitly removed such authority when it enacted the GCA. The GCA’s predecessor statute, the Federal Firearms Act (“FFA”), had specific language that authorized regulation of “any part or parts of” a firearm. However, Congress removed this language when it enacted the GCA, replacing “any part or parts” with just “the frame or receiver of any such weapon.” Thus, the GCA does not allow for regulation of all weapon parts; rather, it limits regulation to two specific types of weapon parts.

While the main decision was largely boring, for those who don’t read these things for fun, Judge Andrew S. Oldham got a little more entertaining in his concurrence. Clearly, he was less than thrilled with the ATF’s refusal to state a definite, objective standard by which to judge when a lump of metal turns into a receiver.

The Final Rule emphasizes this list is “nonexclusive.” And ATF explicitly disclaimed the need to explain how any of these factors would balance in practice: “It is not the purpose of the rule to provide guidance so that persons may structure transactions to avoid the requirements of the law.” This approach violates the Fifth Amendment and its guarantee of fair notice. See FCC v. Fox Television Stations, 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”). The “Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” (emphasis added)

The ATF is whining. “Arbitrary enforcement” is exactly what they wanted. And Oldham caught them. He proceeded to explain in small words for small ATF brains — using pictures — why going from an objective numerical standard of “more than 80% complete” to “we might think it looks like a gun” wasn’t going to cut it. And he wrapped that up with this tidbit.

ATF’s problem is that § 921(a)(3)(B) covers objects that are frames and receivers, not objects that look like frames or receivers. A recent Internet fad illustrates the point. Consider the “cakes that look like food” Internet trend. One could make a cake that looks like a hamburger, just as one could make a cake that looks like a gun frame or receiver. One is “clearly identifiable” as a hamburger, just as the other is “clearly identifiable” as a gun part. But that does not make the former taste like a Big Mac, just as it does not make the latter covered by the GCA. (emphasis added)

An excellent example, and one even a seven year-old can figure out. ATF agents, not so much.

Oldham’s final summation says it all.

The Final Rule is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this. I concur in the majority’s opinion holding the Final Rule is unlawful. And I further concur that the matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.

I suppose the ATF could appeal this to the en banc Fifth Circuit, but looking at the judges who upheld the Second Amendment in this, Cargill v. Garland, and Mock v. Garland, I don’t think it’ll change.