Fifth Circuit Delivers More Wins for Gun Owners, But Will They Stick at SCOTUS?

For anyone struggling to keep track of the multiple lawsuits underway that are challenging three separate ATF rules, I have a suggestion: start thinking of them all as the Fifth Circuit v. ATF. The appellate court has already shot down the Trump administration’s ban on bump stocks on the merits, a U.S. District Judge in the Fifth Circuit’s jurisdiction granted a nationwide injunction this week against the ATF’s more recent rule that defines almost all brace-equipped pistols as short-barreled rifles, and on Thursday a three-judge panel on the Fifth Circuit determined that the agency’s rule declaring that unfinished frames and receivers should be treated as if they’re already firearms is also an abusive example of agency overreach and should be struck down.

The three judges were unanimous in their agreement that the ATF’s rule “flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy”, and “constitutes unlawful agency action in direct contravention of the legislature’s will.”

How do we know when an agency has exceeded its statutory authority? Simple: the plain language of the statute tells us so. Therefore, “[w]e start, as we always do, with the text.” … Here, we read the words of the GCA “in their context and with a view to their place in the overall statutory scheme.” Only where the statutory text shows that ATF has “clear congressional authorization” to enact a regulation can such a regulation withstand judicial scrutiny. As explained below, we hold that ATF lacked congressional authorization to promulgate the two challenged portions of the Final Rule.
The GCA includes as a “firearm” the “frame or receiver” of a weapon. 18 U.S.C. § 921(a)(3)(C). The GCA itself does not define the term “frame or receiver.” The Final Rule, however, newly defines the term “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”
Because Congress did not define “frame or receiver” in the GCA, the ordinary meaning of the words control. Both a “frame” and a “receiver” had set, well-known definitions at the time of the enactment of the GCA in 1968. In 1971, Webster’s Dictionary defined a “frame” as “the basic unit of a handgun which serves as a mounting for the barrel and operating parts of the arm” and a “receiver” as “the metal frame in which the action of a firearm is fitted and which the breech end of the barrel is attached.” ration of the definition before the Final Rule’s proposed change—defined “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward position to receive the barrel.” As is apparent from a comparison of the dictionary definitions and the regulatory definition, ATF’s previous understanding of “frame or receiver” closely tracked the public’s common understanding of such terms at the time of enactment.

Not anymore. As the judges noted, after 50 years of that understanding, the ATF took it upon itself to expand those terms in a bid to include changes to firearms since the passage of the GCA.

“But the meanings of statutes do not change with the times,” the judges opined, and “[a]s such, the proposed definition is an impermissible extension of the statutory text approved by Congress.”

While the Fifth Circuit panel has determined the rule is an impermissible act of agency power, the rule will remain in effect for now since the Supreme Court previously stayed an injunction until SCOTUS makes a final determination (or denies the government’s request to hear the case). The next step in Vanderstok v. Garland is up to DOJ, and Merrick Garland will almost certainly appeal Thursday’s decision to the Supreme Court.

I expect SCOTUS will accept the case, though its ruling will most likely be issued after the Court determines whether the ATF’s administratively imposed ban on bump stocks was allowable or another example of agency overreach. Oral arguments in Garland v. Cargill will be held at some point next year, and we may get a decision by next summer depending on when those arguments are scheduled. My guess is Vanderstok will be close behind, but the legal challenges to the ATF’s rules on stabilizing braces will take a little longer to reach the High Court… at least on the merits.

With U.S. District Judge Matthew Kacsmaryk granting a preliminary injunction to the plaintiffs in Britto v. ATF  this week that applies nationwide, Garland and the DOJ will have to ask a skeptical Fifth Circuit to overrule his decision. If the Fifth Circuit declines to do so (which seems likely to me), then Garland can take his emergency appeal to the Supreme Court and hope that the justices will allow the stabilizing brace rule to be enforced while the case moves forward to trial, as they’ve done with the ATF’s rule on unfinished frames and receivers.

There’s a good chance that Garland will get what he’s asking for, at least in the short term, given Chief Justice John Roberts’ consternation with the so-called shadow docket and the Court’s previous granting of a stay in Vanderstok. When these cases are heard on the merits, however, Garland’s likely to find a much chillier reception. The Court has already issued several rulings limiting the scope of the Environmental Protection Agency’s authority, and (in my opinion, anyway) the ATF’s challenged rules are just as or even more egregious than the EPA’s abuse of power. Whether there are five justices who feel the same remains to be seen, but I feel pretty good about SCOTUS siding with the Fifth Circuit when all is said and done.

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