Americans have been privately manufacturing and assembling firearms since before this country’s founding. Now, thanks to the prevalence of commercially available firearm parts, “buy, build, shoot” kits, and 3D printers, it is easier than ever to build a gun in the comfort of one’s own home, which bypasses many of the statutory and regulatory regimes that govern buying a fully built firearm from a gun store.
To some, this represents a loophole in America’s gun laws. Others see this as a modern innovation in the tradition of home gun building that has always existed in America.
The Biden Administration shares the former view. On April 11, 2022, Attorney General Merrick Garland signed ATF Final Rule 2021R-05F. Among other measures, this rule changes the ATF’s definition of “firearm frame or receiver” found in the Gun Control Act of 1968, greatly expanding the list of what is considered a firearm by the agency, and therefore what can be strictly regulated under existing federal law. Furthermore, both houses of Congress currently have bills before them designed to increase the regulation of homemade firearms, and to ban certain types of these so-called “ghost guns”.
In this timely webinar, our experts will cover the ATF’s Final Rule, set to go into effect on August 24, 2022, and will discuss the legal and political implications surrounding homemade firearms and the regulation thereof.
Matthew Larosiere, Director of Legal Policy at Firearms Policy Coalition
Dru Stevenson, Wayne Fisher Research Professor, Professor of Law, South Texas College of Law Houston
Moderator: Ryan Lacey, Assistant Director, Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Ryan Lacey: Hello, and welcome to this Federalist Society webinar. This afternoon, July 26, 2022, we discuss the future of homemade firearms and go over the legal and political implications of the ATF Final Rule 2021R-05F. My name is Ryan Lacey, and I'm an Assistant Director Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today's program.
Today we are fortunate to have two excellent speakers whom I will introduce very briefly. First, we have Professor Dru Stevenson, who is a Wayne Fisher Research Professor and Professor of Law at South Texas College of Law Houston. He joined the faculty there in 2003, and teaches Administrative Law/Regulation, Professional Responsibility, Nonprofit Incorporation, Legislation, and the Law & Economics seminar. His articles have been cited in leading academic journals and treatises, by the federal and state appellate courts, and in recent briefs to the United States Supreme Court. Professor Stevenson's current research focus is on firearms law and policy.
Next, we have Matthew Larosiere, who is the Director of Legal Policy at the Firearms Policy Coalition. He writes on the subject of the Second Amendment, gun laws, taxation, and gun violence. His work has been featured in the National Review, Cato Blog, Fox Nation, Forbes, Wall Street Journal, and many more. Matt also hosts a gun law YouTube channel called Fudd Busters, where he dispels myths about firearms law.
After our speakers give their remarks and have some back-and-forth discussion, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today's program. With that, I'd like to begin with Professor Stevenson. Can you please tell us what this ATF Final Rule is that was announced in April and will go into effect next month? So, what does it do? What does it not do? And how did it come to be?
Dru Stevenson: So this is really -- the rules calls itself, or titles itself that it's kind of redefining frames and receivers, for purposes of our existing firearm law framework. And just to give the quick and dirty background, federal law imposes manufacturing taxes on firearms when they're produced for sale, and background checks for purchasers. There's licensing requirements for dealers and sellers, and some record-keeping requirements for both manufacturers and sellers that police use to trace guns that they retrieve from crime scenes.
And so, like with most tax regimes and licensing regimes, a number is assigned, just like getting a social security number for purposes of paying your taxes. Or, if you have a corporation, it gets the equivalent, which is an EIN, or employer identification number. And so federal law, for decades, has required that guns are stamped or marked with a serial number. And this is how guns are not only traced at crime scenes, but it facilitates or enables the enforcement of the tax regime on manufacturers for producing guns, and the licensing regime for sellers and the background check system.
In other words, without serial numbers on guns, crime guns become untraceable. People who are making guns and in the business of selling guns are basically cheating on their taxes. They're tax cheats. And sellers can basically try to avoid getting a license. And people who are not lawful to buy guns are able to avoid background checks designed to screen those who are legally prohibited. And so we have a couple problems that modern technology makes it easy, first of all, to produce gun parts, and, therefore, to sell basically unassembled gun kits that require some assembly at home, and the technology makes it easier to assemble guns from a kit of component parts.
And so that's part of our situation is that the technology has changed. Also, the original regulations about parts of guns that bear the serial number, which are called frames or receivers, are basically outdated. They were fine at the time they were promulgated, but most firearms today have split or multi-part frames and receivers. And also the firing mechanisms that are very common in guns has evolved beyond the kind of old-fashioned hammer mechanism.
And so there's a couple of legal problems. First, courts in recent years have been construing some of these definitions of frames and receivers so narrowly that it would make the law inapplicable to 90 percent or more of the guns that are currently in circulation. And so it essentially thwarts these longstanding federal laws. And the second problem is the technology problem that it's really easy now to manufacture and sell parts kits and it's easy for people to get these kits and basically assemble guns at home, and not just for their own use, but maybe to sell to others.
And so the new rule is really, from my perspective, nothing more than an update to existing regulations. And they're primarily updating the definition of "frame" and "receiver." And they've made some tweaks to the definition of "firearm" and "readily," and a few other terms, but those are the most important ones. The media calls these "ghost guns." They've had technical, other more precise terms, like "workshop guns." A lot of people call one subset of them "80 percenters." The rule refers to them as "privately-made firearms," or PMFs. And so that's going to become the legal term of art for these.
And then, just a couple quick things about what the rule doesn't do. It does not apply to someone who is an individual hobbyist who makes a workshop gun at home, maybe with a 3D printer, or by recycling some parts and things like that, for personal use. It does apply if you are making lots of guns at home and then selling them to other people, or selling them on a repeated basis to your local gun store, your retailer who's licensed. And so if you're going to become a small-time manufacturer of firearms, all the rule says is they need to have a serial number on them, just like every other gun. And if you are going to buy kits that -- if you're going to sell kits that are basically just an un-assembled gun, or almost the whole thing, there needs to be a serial number.
Imagine the situation where you go to a gun store and you say, "I want a gun that doesn't have a serial number so it'll be untraceable when I commit crimes." And the dealer could just take it apart and hand you the pieces and say, "Well, if you put it together at home, it doesn't count as a gun." And, in a sense, the rule is trying to address that. Look, if the person can just put the parts together and have an operational firearm, it's a gun and it needs to have a number.
You asked before we began about the recent case Bruen, from the Supreme Court. And I just want to say that, under Bruen's analysis, my take is it's actually more favorable to this regulation, because it says that we start with the text of the Second Amendment. So we don't do a balancing test of, like, how big of a problem is this, versus how big of an infringement.
Under the text of the Second Amendment, the way Bruen reads the core right as being for self-defense, there is no infringement on Second Amendment rights here. Because a person is still able to go to the gun store and buy as many and any gun that they want there and arm themselves for self-defense, to have guns in their home, carry guns with them in public, and so forth. And so the requirement that guns have to have serial numbers is not going to interfere with anyone's ability to arm themselves, keep and bear arms for self-defense.
The second thing is that Bruen says that we should look at historical analogies. And there are founding-era analogies to requiring that guns be marked. So, for example, during the revolutionary war, George Washington required that all of the guns that were in use in the Continental Army basically be marked with Roman numerals for 13, or U.S. 13, and part of that was to trace guns, because people were walking off with their guns, their issued firearms, when their tour of duty was over. People would bring guns from home when they reported for duty and then they would get mixed in with the militia's guns, or the Continental Army's guns. And, during the war, almost all of the guns in existence in the colonies were in service by the military.
And so we did have some early, at least analogous marking systems to prevent theft. And so if there was a question later, "Was this really your gun?" we know where the gun came from. We can trace the origin of the gun, and so forth. Similarly, during the early republic, there were militia returns that were basically surveys or a census to count the eligible men to do militia duty. And those included reports about who had firearms that they could bring with them if they were called up for militia duty. And so we have -- and no one in the founding era thought that being asked how many guns you have infringed on your Second Amendment or that George Washington's scheme for marking guns infringed on their Second Amendment. So, with that, I'll stop and yield here to the floor.
Ryan Lacey: Thank you so much, Professor Stevenson. Matthew, can you give some of your analysis of this Final Rule and answer any of the points that Professor Stevenson took on?
Matthew Larosiere: Thank you kindly, Ryan. Regrettably, firearms law is intensely complicated, and it is very often misunderstood. And I think there's an incredible amount of misunderstanding with this rule. It does, in fact, apply to the individual in a very acute way. And it does, in fact, apply to you, as an individual, and threaten you, as an individual, with many years in a government cage for what is otherwise innocuous non-violent conduct.
So for me to properly paint the scene here, let me talk about how these regulations have worked, broadly, and what they do actually impose. And to be clear about my biases here, to begin with, I am also part of a federal-licensed firearms manufacturer, and, on my own time, as a private person, I helped to design some of the firearms that people can make at home, be it through 3D printing, or otherwise. This is an incredibly important community to me, and I hope that through my testimony today it might become more important to you as well.
Bruen tells us very clearly it doesn't engage in a contrived reading of what the Second Amendment says. It says that "Any regulation that falls under the unqualified command of the Second Amendment must be subject to this test, which is the text informed by the history and tradition." That is — and I would argue, in the case of a federal law — is it analogous to founding-era laws that were accepted? In the case of a state law, is it analogous to post-Civil War-era laws?
When you go back to the founding era -- people often make the claim that technology has changed in some incredibly material way, because now you have these kits that you can purchase, and you do some work at home, usually you make the receiver. No one was — before this rule — making, selling, receivers that were complete. This would be stuff that fairly substantial transformative labor was required. Well, in the founding era, the most common mechanism was flintlock. And then, later on, in the Civil War-era, we went to cartridge and percussion [inaudible 00:13:26].
The most complicated component of a flintlock firearm or a percussion-cap firearm is the lockwork. And that's in the old movies where you'd see -- they stuff all the powder and the shot down the bore, and then they cock back the hammer on the side. That's the lock. That was the most difficult thing to purchase. It was very common practice in the founding era to import buckets of locks from France, the Netherlands [inaudible 00:13:58] them in volume. They would import these locks in tremendous amounts, and then you'd be able to create a smoothbore musket fairly easily in a moderately-equipped shop at the time. So these 80 percenters, or whatever you want to call them — I don't mind the term "privately-made firearm," I think it's fairly accurate, having a history as deeply rooted as our entire nation — so there is absolutely a history of kit-built firearms, if you want to go that direction.
So let's now talk about what was the state of the regulatory community before this rulemaking. Well, what it was is if you are engaged in the business of selling firearms, you need to have a federal firearms license. And so they had defined "engaged in the business," as somebody who pursues, as a regular course of business and for livelihood, somebody who is engaged in this business truly selling and making firearms. If you were doing that, you needed to get this license. And so if you have a license, the government would command you to mark these firearms, since 1968.
Now, there's also a lot of confusion about the traceability of these firearms. For one, most guns in existence were not made today. So there's a tremendous number of -- hundreds of millions of firearms that were made before 1968 which have no serial numbers and are perfectly lawful to possess and transfer. And there is even a specific process for how to log this out of an FFL's bound book. For two, the trace system will only lead you to the first retail purchaser of a firearm. And what that winds up meaning is that any firearm over 15 years old is exactly as traceable as a firearm with no serial number. That's just the way that it is.
The presence of a serial number does not give the police some CSI-level ability to track the culpability of all of its owners. It is truly just a number, and a number that, more often than not, means nothing. The big question here about this rule is can the government, consistent with the Constitution, consistent with any concept of ordered liberty, take one small sentence from the law, which is "The frame or receiver such a firearm," and transform that into not only the frame or receiver, but something that may one day become the frame or receiver, or, in the case of parts kits, which are contemplated by the rule, a completely obliterated frame or receiver, from which you would need to make a new one.
And we've already seen criminal prosecutions where the ATF has locked people in cages for owning parts kits which were previously deemed — in opinion letters by the ATF — to not be firearms, just all of a sudden. These were cut-up kits, from which hobbyists could lawfully grind away the receiver chunks, get a new receiver, and rebuild it onto that. All of the clarity that had been built in the decades before this on what is and is not a firearm receiver was rescinded by this rulemaking. Openly, it said, "All previous rulings are rescinded." Far from clarifying, we now have no idea what a receiver is, when it starts. And in these examples they provided, frankly, they were less than worthless.
It seems clear to me that the impetus for this rule change was the popularity of the Polymer80 receivers. Polymer80s were styled after Glocks. Then it would be a plastic receiver, upon which you would need to install Glock-compatible slides, barrels, what have you. And the receiver would be incomplete. You would need to machine out some components. You would need to drill some holes. As it was, as you received it, it was a hunk of plastic. You would have to do transformative labor. Was it easy? Yes. But I posit you this question. Who cares? The law says, "The frame or receiver of a weapon." If it has never been completed into a weapon, how can you tell me that it falls within this definition of "frame or receiver of such weapon"?
The law simply does not contemplate that. I think that this may be one of the most aggressive overreaches by the administrative branch, not only on the question of frame or receiver, but on redefining when you need to get this license. The new definition of "engaged in the business" could contemplate the sale of a single firearm for profit. Under that definition, say you had bought -- say you're like me, a firearms collector and you have one. You really like it, you bought it just for yourself, no intention to do anything else with it. Your buddy comes over, "I really like that. I'm going to give you three times what you paid." The impetus for your sale — if you make it — is a profit motive, is it not? Under that rule, it could be that you have just suddenly become a felon because you were made an offer you couldn't refuse. That doesn't seem to track well.
And remember also, there's a Commerce Clause problem here. Previously, the firearms that needed to be marked were only those that would be engaged in interstate commerce. Now, I don't think that's a very healthy reading of the commerce clause, but at least it is a reading of it. A firearm that you make in your home, for your use — and don't bring up the Habel case, like, don't even — ought not be considered to be involved in interstate commerce.
ATF, with this rule, is commanding any FFL who accepts a lawfully-made, privately-made firearm to then market. How does it have the authority to do that? All that will do is keep these firearms outside of the FFL network, which seems -- it seems counterintuitive to ATF's purported purpose. So I would posit that, no, this is not a limited industry regulation. It is a massive expansion of potentially felonious conduct, and it should be taken very seriously.
Ryan Lacey: Professor Stevenson, do you have any response to any of Matthew's points?
Dru Stevenson: A number of things he said are simply not true, or are very misleading. So, first of all, the new regulation says, expressly, "To ease transition to the new definitions in marking requirements, the department will grandfather existing split-frame or receiver designs previously classified by ATF as firearm frame or receiver, prior to the issuance of this rule. For example, the lower receiver of the AR-15-type rifle, and variants thereof, are expressly included within the new definition of receiver and may be marked according to the rules that existed before this rule."
Secondly, he made it sound like -- when he talked about how ATF has already been arresting people and putting them in cages -- first of all, ATF has to turn prosecution over to the Department of Justice, and the person gets a fair trial in a federal court. They can raise all the arguments and put on all the evidence that they want, and explain that they had a reliance on -- use an estoppel argument if they want, if they had an authorization from ATF to do what they were doing. So they have an opportunity to do all of that. But the fact is, this rule that we're talking about hasn't even gone into effect yet. So the fact that Matthew is suggesting that people are already being arrested and put in cages because of this rule is ridiculous. I'm sorry, but the rule doesn't go into effect for another month. And then --
Matthew Larosiere: Respectfully, when the charging document that your client calls you with uses the exact language from the rule, I think you'd have a different perspective.
Dru Stevenson: It's a legal basis. You can't be charged under something that hasn't gone into effect yet.
Matthew Larosiere: A lot of good that does him in the cage.
Dru Stevenson: They can use the verbiage, but the fact is, I think the ATF would say that these people have been violating, have been trying to avoid having to pay the manufacturer's tax or get an FFL license, or things like that, all along. And they were able to convince courts of that, that these people were already in violation of the law. And the other thing is, he said it applies to you and it applies to everyone who wants to make a gun at home. The final rule says over and over, emphatically, that it does not prohibit someone from making a PMF at home for their personal use, or even transferring it to someone else.
But if you're going to be in the business of this, then you have to play by the same rules as every other gun dealer, for crying out loud. Pay your taxes, get your license, and do the background checks, follow the law. And we're not going to -- we can't have something where, because you've come up with some sort of sophistry where, "I took the gun apart, so none of these parts now count as a gun, therefore, none of the laws apply to me." That's ridiculous. Then we just wouldn't have a gun. So I really don't think that this is a big sweeping change. I don't understand how it keeps you from exercising what Justice Thomas said was the core right under the Second Amendment to defend yourself if you have to have a number on your gun instead of no number.
Matthew Larosiere: Respectfully, Ryan, could I get 30 seconds, because I think we're just talking past each other. I just want to clarify. So I hear what you're saying, but you're quoting from the split frame definition. That has nothing to do with what I was talking about. The split frame definition is unique to the AR-15 situation and situations like the AR-70s, and the FN SCARs, where one would be marked and not the other. No, the split frame thing has nothing to do with what I'm talking about.
Dru Stevenson: I'm not quoting from the split frame definition; I'm quoting from their response to the comments that they received.
Matthew Larosiere: That was the first thing you said. Right, so, why I'm saying this affects individuals -- you're right, it does not prohibit an individual from assembling a PMF. If ATF decides that the components that you used — which you perform transformative labor on, and which you had a good-faith belief were not already a firearm, and now there is no guidance — if ATF decides that, then, guess what? You did commit a violation, because you transferred a firearm without going through the process that they had already -- that they had declared, because you didn't think it was a firearm. And, yes, these prosecutions have been happening. The fact that the rule hasn't gone into effect doesn’t change the nature of what they're doing. ATF's position is that this has always been the law, so they do not need to wait for the rule to go into effect to use this novel argument.
But, aside from that, anyway, those are just two points I think we were talking past each other. The question of marking is that you do have to get it marked if it is left as an FFL, no matter what happened there. That was the point I was making. Split frame, I agree with you. I doesn't change where the AR has to be marked. It doesn't change where existing firearms have to be marked. But it does call into question, in the future, what would have to be marked. And also, there's no guidance on what would have to be marked in the more niche circumstances that you addressed earlier. And if you don't comply, you do also face criminal charges. So it’s the stacked interwoven nature of how these provisions work with each other that do make it perilous for the individual. But, aside from that, I think we're on the same page on the reading.
Ryan Lacey: Any response before we move on to a couple of questions I have for you, Professor?
Dru Stevenson: I teach administrative law. I study and teach and write about regulations, and, as far as regulations go, this one has extraordinarily detailed guidance about what counts as a frame or a receiver and where the mark is supposed to go. They included pictures of the most common types of firearms and so forth. And in the rare case where someone isn't sure, they can ask the ATF for an opinion letter. And so I don't really -- I'm very skeptical about whether we're going to have broad-based criminal prosecutions for people who honestly had a good-faith belief that they were complying with the law. That's all.
Ryan Lacey: One of the first questions I had when I saw the press conference that President Biden gave -- one of the comments he said is that he was putting in place these new regulations, signing on to them, because he was having trouble getting it passed through the Congress. It comes up with an obvious question. The Congress in this county makes the law, not the ATF. And I understand the ATF is drawing on the Gun Control Act of 1968 in order to make these rules, but isn't this legislating through regulation, and using the administrative agencies to legislate? Or is this a legitimate use of the ATF's regulatory power?
Dru Stevenson: I'll let Matthew go first.
Matthew Larosiere: Thank you kindly. So I think you know what I'm going to say. A good regulation, something that is compliant with the APA, clarifies. There have been decades of guidance and ongoing business, longstanding business, on selling incomplete firearm parts between businesses. You would do this because the law regulated the receiver. It did not regulate something that would one day become the receiver. How you can take a few little words and turn it into a -- dozens of pages, cross-referenced definition, to where they now include things that are not firearms? By their own definition, they're saying, "Well, it's in a course of the thing where it's going to be -- it's in the course of manufacturing, where it's going to be a firearm at one point, and it has to be readily completed." And so, what's "readily"? That's now a multi-page definition, which, by the way, you might think, as a rational person, "readily" would mean, like, filing off a little sprue or drilling a single hole. No, according to ATF, it could include an entire day in a fully-equipped machine shop. And, as somebody with a fully-equipped machine shop, that is not something that is readily acquired by any person.
Look, if they wanted to regulate -- and there's so many different parts here. This rule does so much. It changes where firearms will be marked in the future. I don't know if there's a problem with that. But it also regulates incomplete firearms, and it also changes the whole scope of who is considered to be required to have an FFL. And, by the way, if ATF thinks that you need an FFL for what you're doing, and you don't, it's felonious. So it's -- I think when you make that many changes, based on a few short words, there might be some guys in the bar you could convince that's a legitimate rulemaking, but it ain't me.
Matthew Larosiere: Look, the regulation is very clear that if you have a block of metal or something in its primordial state, it gives a lot of examples of things that don't count for application of the rule, for any concerned citizen who wants to play it safe instead of trying to get away with as much as they can. In terms of Biden's comments, look, a lot of -- if we're talking about presidential press conferences, this is political theater. And he is recognizing that we have partisan gridlock, historically, on the gun issue. And I attribute that, personally, to the fact that gun ownership is disproportionally concentrated in our rural areas, and gun violence is disproportionally concentrated in urban areas. And the way our electoral system works, it means that each side is going to get a vote, and the rural states have a little more voting power.
But he's correct that there is gridlock. On the other hand -- and so when he says, "Look, I can just do this without Congress," the fact is that this has always happened in our nation's history. So if you go back to your, like, eighth-grade civics class, the legislature makes the laws, and the executive branch has to enforce the laws. But enforcement of the law requires a certain amount of exercise of discretion. And so for all of our nation's history, we've had a system where the people specifically entrusted, statutorily, with enforcing a law can promulgate regulations and generate a number of other legal documents, like interpretive letters and other types of guidance documents, statements of policy and enforcement, about how they are interpreting the law.
There's inherent ambiguity in all language, so we're never going to have a statute that's able to contemplate every conceivable factual situation that might ever arise in the real world. So there's always going to be problems with statutory silence, statutory gaps, and the need for gap-filling. And for most of our nation's history, the courts have recognized that the executive branch, at times -- executive agencies have to engage in some gap-filling. And then we have a big system of protections. We have the APA procedures for promulgating rules. We have court discretion if they take it too far.
We have the major questions doctrine, which, in some ways, if I was going to kind of characterize Matt's argument in a classroom, I would ask the class if he was really making a major questions doctrine argument, that he's saying that there is -- that an agency is trying to fit an elephant into a mouse hole, as Justice Gorsuch would argue, that there's a little phrase in the statute and they're building something to -- reading too much into it. And I understand that. And that is a developing area of law. And we'll see what the courts do with this. In terms of "readily," the ATF is very clear in their rule and in the footnotes in their Final Rule, they're happy to work with the definition of "readily" that the courts have been using, as applied to all of our other federal firearm statutes. So it's really not that different or that unclear.
Ryan Lacey: And kind of piggy-backing on the administrative law stuff, we already mentioned Bruen, which, of course, was the big gun case. But another case that everyone's talking about is, of course, West Virginia v. the Environmental Protection Agency. And so people want to know — though it doesn't talk about Chevron in the case, directly, in any of the decisions— if Chevron is now dead, if we're no longer using it, how do you think that this ATF Final Rule and the ATF rules going forward are going to be affected by that case, by that decision, and kind of the court's disposition towards regulations from executive branch agencies?
Dru Stevenson: Personally — if I can go first this time — I think that they didn't really address Chevron very much, and it's really a major questions doctrine case. There is an extent to which major questions doctrine has evolved and is now swallowing some of the space that used to be covered by Chevron. It used to be kind of an exception to Chevron, and it's sort of becoming the exception that's beginning to swallow the rule. The agency doesn't really rely heavily — ATF, with this rule — on Chevron deference. They think that they're on good ground. But I think that Chevron is still alive and well. And there's a competing -- there's going to be some competition with major questions doctrine. There's some uncertainty.
I don't think West Virginia v. EPA case -- it's very specific. And, in fact, the EPA -- and a lot of legal scholars read the case and said, "So, this is bad, but, to be honest, the EPA can do this over again." They're not prohibited from regulating greenhouse gas emissions and stuff like that. They just have to do it a different way and do it under other statutory provisions and so forth. That case also had a really confusing procedural history of the rule going into effect, out of effect, into effect. And at the time the case was brought, the rule actually wasn't even in effect. They just wanted to kind of preempt it getting reimplemented. And so I think it will be easy for future courts to distinguish that.
Ryan Lacey: Matthew?
Matthew Larosiere: Yeah, people have been asking me a lot about how I feel West Virginia v EPA works on the ATF, and I think I'll tend to agree with a lot of Professor Stevenson there. It does indicate — and here's where I'll disagree — it does indicate to me that the Supreme Court is aware of the deep concerns that we have with administrative agencies and kind of the amount of wilding that they're doing. They're growing more and more aggressive and brazen, and I often have debates with my friends on whether ATF is the most aggressive or not. But I think there's an appetite to correct administrative overreach. I don't know which direction it will go. And a lot of this is interesting because many of these cases where we explored ATF's power were during the Trump administration, where ATF was specifically waiving Chevron and refusing to bring it up in those cases.
Dru Stevenson: That's correct.
Matthew Larosiere: And so we didn't get to see that meted out so many times. There was one case where, actually, the court just imposed it anyway, and that was a fascinating situation -- despite the government waiving it. So I think that Chevron's going somewhere. I don't know where it's going. I hope it's far away.
Ryan Lacey: Pivoting a little bit, I wanted to talk about, not necessarily the ATF Final Rule, but some of the -- there have been efforts in the legislative side to be even more aggressive and combating what the media and people would call "ghost guns." And both houses of Congress -- for instance, Democrats have introduced bills to ban 3D printing of firearms, ban these buy-build-shoot kits, etc. And we often see that where Congress fails, in a lot of cases because of the gridlock that Professor Stevenson mentioned. Is the ATF, if they "get away" with this rule, if this goes into effect and isn't struck down by the courts, is the next thing on the ATF's list to more aggressively combat 3D printing of firearms, the homemade firearms, the stuff that is in your house, that doesn't necessarily affect the individual?
Matthew Larosiere: So, if I may --
Ryan Lacey: Yeah.
Matthew Larosiere: My personal opinion is that, between Bruen and West Virginia, that many of the administrative agencies are going to kind of see the writing on the wall, and I think it's likely that we'll see a strategic pull back from these [inaudible 00:39:27] No matter what side you're on, it's clear that the ground is fertile to challenge these types of rulemaking. That said, 3D printing — and being somebody who's deeply connected to that community — is very hard to force feed into this mechanism, here. Everything that ATF is doing comes down to declaring something a firearm before it travels interstate, and thus you would need to get your special permission for them, or else you get to go in the special cage.
With a 3D printing of a receiver, the only way to do it would be to regulate the plastic. I mean, we've seen the government try to go after the sharing of the files. That was a nightmare for them. I don't think that they will be barking up that tree again any time soon. So I think that additive manufacturing is likely safe from further assaults. I think that where the real big questions are is the more old-fashioned, ironically, the more old-fashioned home gun-building that was prevalent in the 50s and 60s, which is making an AK from a steel flat, stuff like that. That's where we in the industry have our concerns.
Dru Stevenson: Ryan, can you repeat the original question?
Ryan Lacey: Yeah, absolutely. Essentially, I wanted to know, if this ATF rule goes into effect, is the ATF's next -- if what they're going to be looking at next is going to be 3D printing of firearms, home building of firearms, buy-build-shoot kits. We already see, in both houses of Congress, is there are bills to ban all of those. So is this the next on the list for the ATF?
Dru Stevenson: So, I don't think so. But, that being said, the ATF just got a new Senate-confirmed director for the first time in 15 years --
Ryan Lacey: Long time, yeah.
Dru Stevenson: -- and maybe only the second time in its history. And so we're going to see a new -- it's a different game. An acting director of any agency walks cautiously, in terms of setting the policy agenda. And Matt -- I agreed with a lot of the stuff Matt said a couple comments ago that we have -- including that the ATF cases during the Trump years were very confusing because of his use of -- his unorthodox way of appointing acting directors of agencies, which made the legality of their actions come into question, all across the administrative state. And so now we have an acting director and so we're going to have a type of policy-setting that we haven't had in a long time. And there's a sense in which the ATF has sort of been just, I think, taking mostly marching orders from the attorney general, in doing enforcement.
I don't think that 3D-printed guns are their number-one focus right now. I think that they are more likely to worry about -- to overhaul their enforcement of gun dealers. There's a few - most gun dealers, it seems like, are pretty much law-abiding and playing by the rules. And there's -- like many industries, there's a few bad apples that are responsible for a grossly disproportionate number of the crime guns, guns that are retrieved from crime scenes. And so I kind of expect that to happen. I expect the ATF to start coordinating a little bit more with the FBI about the NICS background check system and making some updates. We just had a package of federal legislation passed that is going to make ATF have to, probably, promulgate some new regulations to clarify things about background checks for young people and what records will be sent to the NICS database and things like that.
Matthew Larosiere: And the employment thing. That's going to be a whole --
Dru Stevenson: Yeah, the employment thing, the boyfriend loophole, and some things like that. And some of that is going to be done by the DOJ, and some of it's going to be done by the ATF. So I agree with Matt that -- and I think that if people are making a lot of 3D guns and selling them on the street without serial numbers, they're going to get caught up in an ATF dragnet operation.
Matthew Larosiere: And that's always been illegal, for sure.
Dru Stevenson: Right, and there's also a separate federal law about making, designing, plastic guns specifically to circumvent metal detectors in airports and things like that. But I don't think they -- if you want to go buy an $800 3D printer and print your -- have your little project at home, I would be surprised if that's ATF's priority.
Matthew Larosiere: They're $150 now, by the way.
Dru Stevenson: Oh, okay, okay.
Ryan Lacey: A hundred and fifty? I got mine for two.
Dru Stevenson: I know, but if you're going to do it, don't you want a good one?
Ryan Lacey: It is a good one
Dru Stevenson: Okay.
Ryan Lacey: We can have a separate webinar on the quality of 3D printers, I'm sure. But with 15 minutes left, I'd like to turn to some audience Q&A now, if you guys are okay with that. One of the first questions was, "The Final Rule creates an entirely new federal crimes of criminal conspiracy to sell and structuring to purchase unregulated firearm parts. Will people be prosecuted for purchasing parts separately from different retailers, or will retailers be prosecuted for selling them some parts, lower and frame, for instance, but not all of the parts?" So, essentially, how does the criminal conspiracy and structuring to purchase unregulated firearms work in this new Final Rule?
Matthew Larosiere: The interesting thing — and I think Professor Stevenson will probably agree with me — is that I don't think they even needed to do that, because the conspiracy can apply to any crime like that.
Dru Stevenson: Right.
Matthew Larosiere: The problem is that we do not know how it is going to work with getting your parts from different vendors, because one of the factors in whether or not it is readily converted into a firearm is what other components are available from a particular seller, which, respectfully, I'll say is clear as mud. But that is a question we have, and was not properly answered, because some people were saying, "Oh, so now we're just going to get part A from seller X, and part B from seller Y." Well, we just don't actually know what their plan is there. Kind of logically, it seems that they wouldn't be able to attack companies that were acting completely individually and just selling their part. But whether an email between the two of them being like, "Hey, should we have a sale?" -- would that be enough? I don't know.
Dru Stevenson: I think that this really only applies to frames and receivers, not the other parts of the firearm, and whether there's a serial number on what the ATF is considering a frame or receiver. And so if the person is actually trying to buy different parts of the same frame or receiver from different manufacturers, at some point, the manufacturers are going -- ATF is going to tell one of the manufacturers, "That's the part that we think needs a serial number." I think the regulation is very detailed and --
Matthew Larosiere: Well hold on, let me interrupt you, because what he was asking was something that was actually very specific in the regulation, if it's the combination of parts can be considered the frame or receiver. So one of the only things that ATF said was okay and good to go in the rule was the AR 80 percent. And it seems that the jig and the drill bits and whatever, when combined with that, are not okay. They consider that to be a firearm. So then the question becomes -- it's really more of the jig and the frame. That's the more realistic, I think, situation.
Dru Stevenson: Okay, but ultimately this was a question about having a serial number, and --
Matthew Larosiere: But you don't need an FFL to sell either of those parts, and so you don't need to serialize them.
Dru Stevenson: I understand. But I think that if you're a manufacturer that's selling a piece that can easily be -- is in the final stage, basically, to assemble into a frame or receiver, your lawyer should get an opinion letter from ATF about whether you should be putting a serial number. It's not that big a deal to put a serial number on the part. I don't see what the huge objection to this is. I really see this as, ultimately, are you making guns that are unserialized so that you can avoid paying taxes and paying the tax on them, avoid having an FFL, and avoid doing background checks.
Ryan Lacey: Our next question is kind of about the question of being readily convertible. And I'm combining a lot of these questions; we've had lots of people asking similar things. But can you define, specifically, under these new rules, what is readily convertible and what isn't? I know the ATF and the Final Rule said a block of steel or liquid polymer isn't readily convertible. But, beyond that, what isn't readily convertible, and where does that line get drawn?
Dru Stevenson: This is probably a point that Matt and I disagree on, although we both agree that they go on for pages and pages about this. They have a very --
Matthew Larosiere: I guess if you're going to say it's clear, I would love to challenge you to give me three examples on each side.
Dru Stevenson: Okay, I think it has detail.
Matthew Larosiere: Words from the document.
Dru Stevenson: I think it is detailed. But one of the problems with legal specificity is that -- it's that verse from Ecclesiastes, "The more words, the less the meaning." As we try to make things go for regulatory precision, it becomes harder and harder for a layperson to read. I do understand that.
Dru Stevenson: I think that they give a very, very detailed -- they tried to err on the side of specificity with what counts as readily convertible. But I understand that Matt thinks that there's still a lot of unanswered questions.
Matthew Larosiere: Well, and it's -- very respectfully, I work in the firearms industry, I know what these parts look like and I know what they all do. And I also know that they said, "One or more of the following." That doesn't give me a lot. And then I know that it then continues on to how it's marketed, what other products are available for sale on the website. That doesn't seem like it should be able to come into play.
And I'll tell you, as somebody who -- this is my career, specifically, helping companies with this. A lot of times, all I can say is, "I don't know. I know what it was before, and I'll give you my analysis on an individual component. I'll try to check as many boxes as possible, but there was a lot of factors that you can consider." But then ATF specifically says, "No one or any of these are dispositive, and we can add more if we want." So if I were to ever advise a client that that's not a firearm, I feel like I'd be committing malpractice, because I don't think I can do that.
Ryan Lacey: And with that, does a person engaged in the industry, as you said, or a person trying to buy a firearm in this way, or firearm parts, and trying to make sure they're on the right end of the law, do they have to consult a firearms lawyer every time you want to buy a firearms part? And if it is this complicated and there is some of this ambiguity, does that, in effect, have a chilling effect on some of these Second Amendment rights, if they are scared to sell a firearm part or a firearm, or to buy one, because of these rules. And could it be challenged on that basis in the courts?
Matthew Larosiere: Well, we did make a mistake in our Constitution by writing Article III. So it's very easy to get rid of cases on standing, which is what they would tend to do in those situations. But let me tell you something that a lot of people don't think about with this. This is the background. I understand Professor Stevenson's concern about serialization of firearms, despite the fact that the serial number has, literally, never done anything ever -- just a respectful joke, except they're actually useless --
Dru Stevenson: I'm sorry, I'm sorry. At the shooting that happened on July 4, they were able to --
Matthew Larosiere: Trace it to the first retail purchaser, which was him, right.
Dru Stevenson: -- track down the identity of the shooter within 24 hours, because of the serial number on the gun stock.
Matthew Larosiere: On the gun that they had in their hand, because they had the guy. Anyway, right, they had the gun.
Dru Stevenson: But they didn't have the guy. They had the gun, and they were able to find the guy because they got the gun. And it was all done on a federal holiday. I couldn't believe it. And so --
Matthew Larosiere: And what it -- anyway, I understand your point. My point is it's less useful than people think. But sure, it has uses. I'll give you that. The real thing that this really affects is how businesses interact with each other. Comparative advantage is a really real thing. A company that's really good at stamping should be making stampings, right? In the background, gun companies trade incomplete parts constantly, to keep costs down and to be able to perform better. When you subject incomplete parts to treatment as a firearm, it makes it virtually impossible for us to work together and use each other's components.
Putting on the serial number, well, one, mechanically, it's a little more difficult than you might think. We use a laser; that's the easiest way to do it. It's still a setup, it affects your -- it's a little bit of labor for each individual one. But I don't think the labor of the serial number is the real problem. It's the legal treatment of the firearm at that time. So the big concern here is really how it is going to drive costs up, because businesses will not want to sell component parts to each other. And don't try to tell me this isn't a real concern, because we used to buy pallets of incomplete components years ago, because guess what? The company that has the massive steel-stamping brakes and that just make AK stampings every day all day can do it a lot cheaper than we can. So it's going to drive up costs. But standing is going to be an infuriating question here.
Dru Stevenson: Look, I don't think it affects most of the component parts for a gun. There's going to be plenty of exchange. This is about serial numbers on frames and receivers. And I don't think it will take long for -- I understand, any time you have a regulation of an industry, the industry says, "This is the end of the world." I teach a case in administrative law about putting those little stickers on the gas pumps that tell you what grade the gasoline is. And the oil industry went completely nuts over having to put a sticker on their gas pump with a little number. And it's the end of the world.
Matthew Larosiere: Because they wanted to sell junk gas.
Dru Stevenson: Right, we're selling junk gas.
Matthew Larosiere: They wanted to sell junk gas really.
Dru Stevenson: And the fact is the agency that was doing it at the time. It was a lot less clear than with ATF, whether they were acting within their statutory authority, and so on. This was the Federal Trade Commission just kind of decided one day that they had authority to regulate stickers on gas pumps. And so I don't think -- this only affects the frame or receiver part, and I don't think it will take long at all for the manufacturers to sort out with the ATF which part is supposed to have the serial number. That's all this is about. I don't think it's going to -- I would be shocked if the people walking into an FFL and buying a gun notice even an incremental price increase, because of this regulation in particular, on a complete firearm. The kits, yes. The kits are going to be a little more expensive, but only because they have to add a serial number.
Matthew Larosiere: Well, no one will buy one that has that. But you are aware that it's not just the serial number, right? You have to put your entire manufacturer's information on it.
Dru Stevenson: Yeah, yeah, yeah, yeah, yeah.
Matthew Larosiere: And then, as a manufacturer, I can't just use yours. So it creates another problem, where I would have to --
Dru Stevenson: I understand, but I don't think this is all that different from what it was before the rule, in terms of buying [inaudible 00:57:04] –
Matthew Larosiere: It's unbelievably different.
Dru Stevenson: Yeah, I guess we can agree to disagree about that.
Matthew Larosiere: And now we're paying tax on it twice, by the way. So, it is a huge problem.
Dru Stevenson: I don't think you'll end up having to pay tax twice.
Matthew Larosiere: I don't know.
Ryan Lacey: Well, coming up to the top of the hour, and I have another question here from the audience that I've kind of meshed together. And this might be more up Matthew's alley, because he's in the industry. We see, unlike with other industries, when an agency comes out with a rule, we'll often see, in other industries, the private actors complying with them before they even get put into place or announced. Pre-compliance is a very real thing. It's not the case in the gun industry. In fact, we see tons of examples of, in the firearms industry, manufacturers actively trying to circumvent whatever the new rule is: you could say, stabilizing braces on AR pistols in order to make what are, essentially, short-barreled rifles, bump stocks and binary triggers to simulate automatic weapons. What with these new rules going into effect, how do you think the industry will react? And what's going to be the next new development in order to get around these regulations?
Matthew Larosiere: We need to know what these actually mean for us before we can even attempt to get around them. And I don't like the term, "circumvent." I like the term "malicious compliance," which is a distinctly American thing to do, and it is at the foundation of us as a people. I'll say the reason is likely because -- well, it's two things: principle, this is a fundamental right. Two, realistically, in the industry, especially when you work with components like incomplete receivers, these are imported or manufactured in large batches. I'm aware that distributers are currently 10 percent overstocked, which means you have overstock going down the line. So I think what we're going to see is sales leading up to this point. They're going to want to clear out their inventory, and I think it's probably explained as simply as that.
Ryan Lacey: Well said. Well, any last words from either of you before we close out today, and thank you both so much for being here.
Dru Stevenson: Thank you for having me. This has been fun.
Matthew Larosiere: Yes, it was fun. Thank you so much. And thank you, Professor Stevenson. It was a pleasurable knife fight.
Ryan Lacey: Marquis of Queensbury rules, I'm sure. On behalf of The Federalist Society I would like to thank both of you for the benefit of your time and expertise today. And I would like to thank our audience for joining us and for participating with those great questions. I'm sorry that we weren't able to get to all of them. There were a ton. But we welcome listener feedback by email at email@example.com. And, as always, keep an eye on our website and your emails for announcements about upcoming webinars and other events. And this webinar, of course, will be posted after the fact on our YouTube page, and a couple of days after it gets edited, etc. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.