Stephen Halbrook | 10.10.2024 10:33 PM

Pundits have tried to read the tea leaves following the argument in the Supreme Court in Garland v. VanDerStok on October 8. In its Final Rule, ATF expanded the definition of "firearm" beyond what Congress provided in the Gun Control Act (GCA), and it expanded the definition of "frame or receiver" beyond the agency's own definition that was on the books since 1968. In the argument, serious questions were raised about the extent to which an agency may revise a criminal statute.

That concern was expressed right at the beginning when Justice Thomas asked Solicitor General Prelogar whether the regulation "cover[s] all of Chapter 44," which is the GCA portion of 18 U.S.C. (the federal criminal code), and whether it "appl[ies] under 924," which is the GCA section that provides criminal penalties. Prelogar's response was "yes" to both. So whether a person is committing a felony depends on whether the more narrow definition of "firearm" enacted by Congress, or the broader definition adopted by ATF, applies.

Justice Kavanaugh probed in detail into the implications of the agency's expansion of the reach of the criminal law. Expressing concern about mens rea, he noted that "this is an agency regulation that broadens a criminal statute beyond what it had been before." "So what about the seller," he asked "who is truly not aware … that they are violating the law and gets criminally charged?"

Prelogar responded that the requirements of having a license and of serializing firearms are subject to a "willfulness" requirement (see § 924(a)(1)(D)), but not conducting a background check only requires "knowledge" (§ 924(a)(5)). Under the "knowing" standard, a person need not know of a legal duty but simply knows that he didn't conduct the background check.

But not to worry, Prelogar assured the Court, "on the background check, if you have a seller out there who wants guidance about whether, with respect to particular types of products, … the person can seek a classification from ATF." But that presupposes that you even know to ask for a "mother may I" classification letter from ATF. And as persons in the industry are painfully aware, ATF may take up to a year to issue a letter, if it responds at all. More fundamentally, that presupposes that the agency itself, rather than the........

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