The rule redefining “firearm,” frame, and “receiver,” about which TZP has been warning for some time, is now in effect. The lawsuits should be spectacular.

TZP noted, and submitted an NPRM comment to the effect, that this is once again the ATF usurping the role of Congress; declaring themselves a fourth branch of government.

Congress has shown the ability to note and regulate new technologies at less than a glacial pace. But despite THESE devices existing for well over a century, Congress has chosen not to include them in the definition of firearm. We must, then, conclude that Congress saw no need to regulate them, and that ATF doing so violates the intent of Congress.

That arrogation of undelegated power was bad enough. The violation of the Administrative Procedures Act should be a nail in the rule’s coffin (assuming honest courts). But in the interval between NPRM commenting and issuance of the formal rule, we had BRUEN.

Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broad y consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.
[…]
In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest.
[…]
We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Bless your hearts, ATF. Please tell me exactly what general, historical tradition there was at the time of the Second Amendment’s ratification (or since) for designating unfinished parts, which have the potential to be worked into complete parts, to be actual complete firearms.

The rule-making failed the Administrative Procedures Act.

This rule fails the separation of powers. “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” not an executive branch agency.

This rule fails the basic Constitutional test of BRUEN.

And the ATF knew this when they unconstitutionally implemented the rule. Honest courts should toss this rule in summary judgement. But maybe the ATF knows the fix is in on this, too.

 

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