VanDerStok v Garland - ATF definition of unfinished firearms

[Upholder]

Plaintiffs' Reply Brief in Support of Defense Distributed and the Second Amendment Foundation, Inc.'s Motion for Preliminary Injunction:

 

https://storage.courtlistener.com/recap/gov.uscourts.txnd.366145/gov.uscourts.txnd.366145.184.0.pdf

[Euler]

On 11/4/2022 at 9:54 PM, Euler said:

...

On November 3, the court granted a preliminary injunction protecting BlackHawk Manufacturing. ...

...

 

On March 2, the judge expanded the preliminary injunction on the ATF regulations of "partially manufactured firearms" on behalf of Defense Distributed and its customers. The judge denied expanding it on behalf of SAF (i.e., SAF members).

[BobPistol]

That the firearm part is “designed” to be or may one day become a frame or receiver does not change the fact that, in that moment, it is not “the frame or receiver of any such weapon.” 

 

Meanwhile, these same people say that it is OK to kill an unborn baby even though they think it is "designed to one day become a human baby" and they think at the moment, it is not one (according to their dehumanizing philosophy)

 

So, a POTENTIAL gun is a gun but a POTENTIAL baby (in their view) is not a baby.

Double standard = corruption.

 

(of course, I disagree with their dehumanizing philosophy)

[Euler]

On February 13, defendants filed a motion for summary judgment.

 

On March 6, plaintiffs filed their response.

 

On March 20, defendants requested an extension to file their reply. the judge granted defendants an extension until April 6.

 

On April 6, the defendants filed a request to exceed page limits for their reply. (The over-sized reply was attached.)

 

On April 7, the judge ordered the plaintiffs to respond to defendants' April 6 request by April 10. Defendants are to reply by April 14.

 

... Meanwhile, the original reply is technically not filed ....

[RECarry]

On 3/3/2023 at 6:36 PM, BobPistol said:

That the firearm part is “designed” to be or may one day become a frame or receiver does not change the fact that, in that moment, it is not “the frame or receiver of any such weapon.” 

 

Meanwhile, these same people say that it is OK to kill an unborn baby even though they think it is "designed to one day become a human baby" and they think at the moment, it is not one (according to their dehumanizing philosophy)

 

So, a POTENTIAL gun is a gun but a POTENTIAL baby (in their view) is not a baby.

Double standard = corruption.

 

(of course, I disagree with their dehumanizing philosophy)

By extension, abortion is justified so that a woman can protect her health, quality of life, career aspirations, etc.  But firearms are bad because people might use them as designed to protect their health, quality of life, career aspirations, family, etc.  Additionally, abortions can be funded by tax dollars while self-defense rights must be self-funded and defended with private funds.

[BobPistol]

On 4/7/2023 at 6:13 PM, RECarry said:

By extension, abortion is justified so that a woman can protect her health, quality of life, career aspirations, etc.  But firearms are bad because people might use them as designed to protect their health, quality of life, career aspirations, family, etc.  Additionally, abortions can be funded by tax dollars while self-defense rights must be self-funded and defended with private funds.

 

Yup.

 

More double standard = corruption.

 

All based on dehumanizing philosophies that the usual suspects hold.

[Euler]

On May 1, defendants appealed the preliminary injunction regarding plaintiff Defense Distributed and its customers to the 5th Circuit Court of Appeals.

[Euler]

On 5/1/2023 at 7:23 PM, Euler said:

On May 1, defendants appealed the preliminary injunction regarding plaintiff Defense Distributed and its customers to the 5th Circuit Court of Appeals.

 

On May 9, CA5 notified the district court that it had assigned the appeal case number 23-10463. (docket)

 

Also on May 9, VanDerStok and Tactical Machining filed an objection to Polymer 80's attempt to intervene in the case (which it filed to do on January 9).

 

Just to recap, since this case is messy:

The original case was VanDerStok/Tactical Machining vs. Garland/ATF/etc.

Defense Distributed and BlackHawk Manufacturing filed to intervene and were granted.

Polymer 80 has also filed to intervene, but is not getting welcomed by the existing plaintiffs.

 

Edited May 11, 2023 at 02:13 AM by Euler

[TRQ]

I think this goes here.

 

https://www.firearmspolicy.org/fpc_and_fpcaf_win_federal_judge_vacates_atf_s_unlawful_frame_or_receiver_rule

 

[davel501]

On 6/30/2023 at 10:10 PM, TRQ said:

I think this goes here.

 

https://www.firearmspolicy.org/fpc_and_fpcaf_win_federal_judge_vacates_atf_s_unlawful_frame_or_receiver_rule

 

Great news and kudos for not starting a new thread! 

[Yeti]

Great news!  Hope it is leverage for fighting Illinois’ insanity on this topic soon.

[Flynn]

We need more rulings worded like this against the ATF

 

Quote

An illegitimate agency action is void ab initio and therefore cannot be remanded as there is nothing for the agency to justify. 

 

https://assets.nationbuilder.com/firearmspolicycoalition/pages/6573/attachments/original/1688171832/VanDerStok_v_Garland_227_Opinion.pdf?1688171832

[Molly B.]

Quote

 

“This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968,” wrote Federal District Court Judge Reed O’Connor in his Order. “Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule… is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.”

 

“We’re thrilled to see the Court agree that ATF’s Frame or Receiver Rule exceeds the agency’s congressionally limited authority,” said Cody J. Wisniewski, FPCAF’s Senior Attorney for Constitutional Litigation and FPC’s counsel in this case. “With this decision, the Court has properly struck down ATF’s Rule and ensured that it cannot enforce that which it never had the authority to publish in the first place.”

 

“This is a monumental victory against the tyrannical ATF. Firearms Policy Coalition and FPC Law have argued that this rogue agency has unlawfully attacked gun owners in this latest round of ‘rulemaking’ and we are grateful to see the Court agree,” said Richard Thomson, FPC’s Vice President of Communications. “We will not stop, however, with this latest victory. FPC and FPC Law will continue to bring these cases to put a stop to the immoral and unconstitutional actions of the disarmament regime.”

 

 

 

Yeah, boy!

[John Q Public]

😉

[kingc]

😊

Edited July 2, 2023 at 06:29 AM by kingc

[Euler]

On 5/10/2023 at 9:06 PM, Euler said:

...

Just to recap, since this case is messy:

The original case was VanDerStok/Tactical Machining vs. Garland/ATF/etc.

Defense Distributed and BlackHawk Manufacturing filed to intervene and were granted.

Polymer 80 has also filed to intervene, but is not getting welcomed by the existing plaintiffs.

 

The district court opinion and order is also a bit messy for all the parts. There's been some rejoicing above about one part, but there are a few parts.

 

1. The court granted JSD Supply/Polymer80 intervenor status.
2. The court denied all other motions by Polymer80, since it had not been granted intervenor status at the times of filing.
3. The court granted the plaintiffs' (other than Polymer80 -- i.e., VanDerStok, Tactical Machining, Defense Distributed, and BlackHawk Manufacturing) motions for summary judgment.
4. The court denied defendants' motion for summary judgment.
5. The court vacated the final rule. (That's the part people are celebrating.)
6. To the extent that Polymer80 has any unique claims that are neither covered nor mooted by the above rulings, it may continue to move on them.

 

Lest anyone forget, this case also has moving parts (no pun intended) at the appellate level (CA5). There have been some events there, too.

 

22-11071 in CA5

On November 3, 2022, the government appealed the district court's preliminary injunction, ordered September 2, 2022, for plaintiffs VanDerStok and Tactical Machining.

On June 27, the court scheduled oral arguments for September 4.

 

That case is still live, although it seems a bit moot given the district court's ruling on Friday.

 

23-10463 in CA5

On May 5, 2023, the government appealed the district court's preliminary injunction, ordered March 2, 2023, for plaintiffs Defense Distributed and BlackHawk Manufacturing.

On May 31, the court ordered the cased stayed until the disposition of 22-11071.

 

That one also seems moot, now.

 

The government's next move will be to file an appeal to CA5 to lift the district's vacatur (vacate the vacatur?) on the final rule.

[2smartby1/2]

If the Federal Government can't do it, does that mean the state(s) can't do it?  How do you have an FFL engrave a non-firearm? 

  

[davel501]

On 7/3/2023 at 7:37 AM, 2smartby1/2 said:

If the Federal Government can't do it, does that mean the state(s) can't do it?  How do you have an FFL engrave a non-firearm? 

  

 

The ruling didn't look at whether the government could limit it. It looked at whether Congress gave the ATF permission to regulate it. The law clearly says the atf may regulate frames and receivers only. 

[2smartby1/2]

On 7/3/2023 at 9:06 AM, davel501 said:

 

The ruling didn't look at whether the government could limit it. It looked at whether Congress gave the ATF permission to regulate it. The law clearly says the atf may regulate frames and receivers only. 

True, but the question still remains on state impact. 

The ATF was not able to change the definition of a frame or receiver to include incomplete lowers/kits/etc.  Can the state require a serial number from an FFL on something that is not (yet) a firearm?  

[Tip]

On 7/3/2023 at 9:13 AM, 2smartby1/2 said:

True, but the question still remains on state impact. 

The ATF was not able to change the definition of a frame or receiver to include incomplete lowers/kits/etc.  Can the state require a serial number from an FFL on something that is not (yet) a firearm?  

My understanding would be that ATF cannot change the definitions without sufficient underlying law to back them up as it’s not within their purview to create law. They cannot make something that’s not a firearm into a firearm and cover it under firearm laws.
States, on the other hand, can pass laws requiring a great deal, if a State so chooses they can pass laws requiring serial numbers on most anything. What is the constitutional, or for that matter, any other challenge to said law? 

[davel501]

On 7/3/2023 at 9:13 AM, 2smartby1/2 said:

True, but the question still remains on state impact. 

The ATF was not able to change the definition of a frame or receiver to include incomplete lowers/kits/etc.  Can the state require a serial number from an FFL on something that is not (yet) a firearm?  

 

That's a fight for a different case. This case does shoot some big holes in constructive possession as I read it though. 

[Flynn]

On 7/3/2023 at 9:13 AM, 2smartby1/2 said:

True, but the question still remains on state impact. 

The ATF was not able to change the definition of a frame or receiver to include incomplete lowers/kits/etc.  Can the state require a serial number from an FFL on something that is not (yet) a firearm?  

 

State impact will have to be litigated as the reason for the ATF rule getting nuked was unique to their rule-making ability...

 

I personally don't believe serial numbers at all survive under the Bruen test, even on completed firearms, but we will have to see if the SCOTUS draws a hard line on their Bruen test or actually slightly overrules themselves and allows some wiggle room for means-ends like serial numbers...

[Tvandermyde]

This wasn't a 2A case this was on administrative procedures act issues of if the ATF has the authority to do so. Congress did NOT grant them the power to regulate parts and the crazy idea that even though it does not meet the definition of a frame or receiver, it is now equal to a frame or receiver the court called them out for it. 

 

 

This has no bearing on Illinois or other state bans on home built guns as that is a completely different argument.

[Euler]

On July 5, the court ruled on two of Polymer80's claims, reiterating the vacatur of the ATF final rule and giving Polymer80 until July 12 to file notice on any remaining claims that it thinks aren't moot.

[Euler]

On July 7, Polymer80 asserted that its remaining claims are not moot, because they involve threats of prosecution and other administrative actions that have not been vacated with the final rule, but are nevertheless logical extensions of the final rule.

[Euler]

On July 9, 2023 at 10:05 PM, Euler said:→

On July 7, Polymer80 asserted that its remaining claims are not moot, because they involve threats of prosecution and other administrative actions that have not been vacated with the final rule, but are nevertheless logical extensions of the final rule.

On July 12, the judge set the following schedule:

8/2: Defendants' response to Polymer 80 is due.
8/16: Plaintiffs' reply is due.

[Euler]

On July 13, the government notified the district court that it has filed for an appeal with the 5th Circuit.

[Euler]

On July 14, the defendants requested a stay on the vacatur pending appeal.

On July 18, the judge denied a stay pending appeal, but granted a 7-day stay to give the defendants time to request a stay pending appeal from the Circuit court.

In other words, the district court is effectively punting the motion for a stay into the Circuit court. if the Circuit court doesn't think that the defendants will win an appeal, then they also won't get a stay unless and until they actually win the appeal.

[Flynn]

5th Circuit Court tells the ATF too bad...

 

https://www.thetruthaboutguns.com/5th-circuit-denies-atfs-request-to-stay-decision-throwing-out-its-ban-on-ghost-gun/

 

Quote

Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. “[V]acatur . . . reestablish[es] the status quo ante,” Defense Distributed v. Platkin, 55 F.4th 486, 491 (5th Cir. 2022), which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.

 

Edited July 25, 2023 at 02:13 AM by Flynn

[Euler]

On July 25, the defendants appealed the case to the 5th Circuit.