Stephen Halbrook | 10.2.2024 10:27 PM

Getting closer to October 8, when the Supreme Court will hear oral argument in Garland v. VanDerStok, I'd like to address whether ATF's 2022 Final Rule drastically expanding the meaning of the statutory term "firearm" implicates the Second Amendment. By redefining "firearm" to include unfinished materials, information, jigs, and tools, the supply has dried up for persons freely to obtain what they need to construct self-made firearms. Indeed, that is the purpose of the rule.

No one disputes that the right to keep and bear arms entails the right to acquire them, which presupposes that firearms must be made. As explained in my previous post, the Federal Firearms Act of 1938 was the first federal law to require those engaged in the business of manufacturing firearms to obtain licenses. To date, the Gun Control Act (GCA), passed in 1968, provides no restrictions on a person acquiring materials and making his or her own firearm.

ATF's commentary to the Final Rule argues that it does not violate the Second Amendment, because "the GCA and this rule do not prohibit individuals from assembling or otherwise making their own firearms from parts for personal use," nor do they "prohibit[] law-abiding citizens from completing, assembling, or transferring firearms without a license" as long as they are not "engaged in the business." Yet the rule does prevent individuals from "making their own firearms from parts" by purporting to extend the statutory definition of "firearm" to raw material and previously-unrestricted parts that may no longer be bought and sold except through federal firearm licensees.

The Supreme Court in District of Columbia v. Heller did not "cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms." ATF's regulations are not "laws" and have no basis in the laws passed by Congress, which enacted the exclusive definition of "firearm." The Final Rule impedes the making and acquisition of firearms by imposing new, onerous restrictions, costs, and potential criminal jeopardy.

The commentary quotes the above words from Heller, but those words do not justify the policy argument in the next sentence: "PMFs [privately made firearms], like........

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