Scholarship Highlight: Individualized Rights Restoration and Ghost Guns

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

This post highlights two new pieces of legal scholarship recently posted to SSRN.  First, an essay by Ian Ayres and Fred Vars argues that judges might include individualized dangerousness or credible-threat findings in criminal sentencing and involuntary commitment orders as a way of heading off future Second Amendment challenges.  This could be required by state statute, Ayres and Vars suggest, and “[s]uch statutes might also require judges to address the period of time that they find [the] individual to be a credible threat.”  Ayres and Vars further argue that “Congress [should] authorize individuals who are subject to federal prohibitors to petition to reacquire their Second Amendment rights” by reactivating 18 U.S.C. § 925(c).

Second, in a new article, Stephen Halbrook argues that ATF’s regulation of gun-assembly kits and partially finished frames and receivers as firearms (the regulation challenged in the VanDerStok case) “violates both the statutory text and applicable precedents” and is a “radical departure” from the GCA’s historical scope.  Halbrook asserts that this history “makes clear that ATF has realized for over fifty years that a ‘frame or receiver’ as that term is used in the GCA is an actual frame or receiver, not just one part of a frame or receiver that requires another part to constitute a frame or receiver.”

Ian Ayres & Fredrick E. Vars, The Coming Assault on Class-Based Gun Prohibitions (posted to SSRN)

Abstract

Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms. While Justice Scalia in Heller described such laws as “presumptively lawful,” Justice Thomas’ more recent Bruen decision holds that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous precedents of gun regulations from the Founding-Era. Some courts applying the Bruen test have had difficulty finding “how” analogs—particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determination of dangerousness.

This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections. In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders. We also propose that Congress refund the existing § 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.

Stephen P. Halbrook, The Meaning of "Firearm" and "Frame or Receiver" in the Federal Gun Control Act: ATF's 2022 Final Rule in Light of Text, Precedent, and History (posted to SSRN)

Abstract

In 2022, the U.S. Department of Justice promulgated new regulations that greatly expand the definition of a “firearm” under the Gun Control Act (GCA), which is enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).   The Final Rule changes the statutory definition of “firearm” and overrides ATF’s definition of “frame or receiver” adopted with enactment of the GCA in 1968.

Part One demonstrates how the Final Rule violates both the statutory text and applicable precedents.  The text defines “firearm” as an operable weapon or one that is designed to or may be readily converted to fire.  It also includes the “frame or receiver” of any such weapon without the designed or convertible modifiers.  In its 1968 definition, ATF’s predecessor agency defined a frame or receiver as the housing that contains a firearm’s internal mechanisms. The GCA authorizes the Attorney General to prescribe “only such rules and regulations as are necessary to carry out the provisions” of the GCA. The Rule adds a “weapon parts kit” to the definition of “firearm.”  But without a frame or receiver, mere “parts” do not constitute a firearm.  The Rule departs from the ordinary meaning of a frame or receiver by including a “partially complete, disassembled, or nonfunctional frame or receiver” and a “multi-piece frame or receiver.” The Rule requires dealers to inscribe serial numbers on privately made firearms, a requirement the GCA imposes only on manufacturers and importers. The Rule imposes undue restrictions on the acquisition of firearms by law-abiding citizens and violates the Second Amendment.

Part Two demonstrates that the Rule is a radical departure from the GCA as informed by its statutory and administrative history.  The Federal Firearms Act (FFA) of 1938 defined “firearm” both as a weapon and as “any part or parts” thereof.  It also made it an offense to violate the statute or any regulation thereunder. FFA regulations and rulings were rendered on barreled actions, firearms in knockdown condition, and frames or receivers.  Serial numbers were required on some types of firearms beginning in 1958. Legislative drafting on what developed into the Gun Control Act began in the early 1960s.  “Firearm” came to be defined what it is today, with “part or parts” deleted and “frame or receiver” inserted.  Congress rejected making violation of a regulation to be a crime. The meaning of “frame or receiver” adopted by the agency in 1968 reflected common usage of the term.  It was recognized that both parts of a two-part frame or receiver are necessary to constitute a frame or receiver. The Firearm Owner’s Protection Act of 1986 reduced ATF’s regulatory power.  It left untouched the agency’s definition of frame or receiver.

VanDerStok v. Garland, 86 F.4th 179 (5th Cir. 2023), held the Final Rule’s redefinitions of “firearm” and of “frame or receiver” to be arbitrary and capricious.  The Supreme Court granted the government’s petition for a writ of certiorari and is hearing the case in its 2024 Term.