Bondi v. Vanderstok:  AFT regulations of “weapon part kits”  are not facially invalid

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           The federal regulations requiring that “weapon part kits” comply with the licensing, record-keeping and background check requirements of the Gun Control Act are not facially invalid, the U.S. Supreme Court held March 26 in Bondi v. Vanderstok.

           The Gun Control Act of 1968 requires gun manufacturers or dealers to obtain federal licenses, keep records of their sales, and conduct background checks before transferring firearms to private buyers.

           The purpose of the Act was to allow police to trace guns used in crimes, and to keep guns away from people likely to commit crimes.

           When the Act was passed in 1968, technologies did not exist to allow individuals to practically or reliability make their own firearms.  But new technologies like 3D printing and reinforced polymers mean that’s no longer true.

           Today, companies sell “weapon parts kits” that allow people to make and assemble firearms in their own homes.

           These firearms are knowns as “ghost guns,” and their use in crimes has risen quickly. 

           In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives promulgated new rules to regulate “weapon parts kits.”

           The regulations required manufacturers and sellers of kits to comply with the federal licensing, sales record-keeping, serial number marking, and background check requirements for traditional firearms.

           Various gun manufacturers and at-home gunsmiths challenged the regulations under the Administrative Procedure Act.  They claimed the regulations were facially invalid, because the Gun Control Act cannot be read to reach weapon parts or unfinished firearms, so the regulations exceeded ATF’s statutory authority.

           The District Court agreed with plaintiffs and vacated the regulations.  The Fifth Circuit affirmed.

Holding

           The Supreme Court reversed, in a 7-2 opinion by Justice Gorsuch.

           The Court began by noting that this case is not about whether the ATF’s regulations apply to particular weapon parts kits or unfinished firearms.

           The Court also noted that the parties were not contesting the standard of review the Court should use in deciding this case.

           Plaintiffs present a “facial” pre-enforcement challenge to the agency’s authority to regulate “any” weapon parts kits or unfinished firearms, the Court said.

           The parties do not dispute that, in such a challenge, the possibility that the regulation may be invalid “as applied in some cases” does not mean the regulation is “facially invalid”, the Court said.  Instead, the plaintiffs “burden is to show that the Rule itself is inconsistent with the statute on its face.”

           The Gun Control Act authorizes ATF to regulate “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”

           This requires two things, the Court said.  First, a “weapon” must be present.  Second, that “weapon” must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way.

           “[T]o our eyes, at least some kits will satisfy both” requirements, the Court said.

           “To appreciate why, it helps to work with an example,” the Court said.  “Take a weapon parts kit featured prominently in the record before us:  Polymer80’s ‘Buy Build Shoot’ kit.”

           “It comes with ‘all of the necessary components to build’ a Glock variant semiautomatic pistol.”

           “[A] number of considerations persuade us, that even as sold, the ‘Buy Build Shoot’ kit qualifies as a ‘weapon’”, the Court said.

           For example, in ordinary language, a “friend might speak of the table he just bought at IKEA, even though hours of assembly remain ahead of him”, the Court said. 

           “And, as a matter of every day speech, [a] rifle is a weapon, whether disassembled or combat ready.”

           “If Congress had wanted to regulate only operable firearms, it could have simply addressed ‘weapons’ that can ‘expel a projectile by the action of an explosive’”, the Court said.  “But Congress didn’t stop there.  Instead, Congress explained that a ‘weapon’ also qualifies for regulation if it is either ‘designed’ to accomplish that function or ‘capable of being readily … converted’ to do so.”

           The Court recognized that at some point, a gun kit may be “so incomplete or cumbersome to assemble that it can no longer fairly be described as a ‘weapon’”. 

           “While we recognized the problem”, the Court said, “this case does not require us to untangle exactly how far” the statute reaches.

           The plaintiffs argue only that the regulations are “facially inconsistent” with the statute, the Court said.  “To resolve this case, it is enough to say those assessments are mistaken.”

           “Future cases may present other and more difficult questions about ATF’s regulations”, the Court said.  “But we take cases as they come and today resolve only the question posed to us.”

Concurring opinions

           Justice Sotomayor concurred, but wrote separately to address points raised by the dissents.

           First, to the extent that any kit manufacturer has doubts about whether a particular product qualifies as a covered firearm, Sotomayor said that ATF encourages manufacturers to submit their products to ATF for classification decisions.

           Second, she rejected the idea suggested by Justice Alito’s dissent that the ATF can regulate only “all-but-assembled” weapons parts kits and frames that are “as close to completion as possible.”

           “I encourage readers to go to the source, rather than rely on dissents, to understand what the Court holds”, Sotomayor said.  “It is the Court’s ruling, not the one set forth by the dissents, that binds the lower courts.”

           Justice Kavanaugh concurred, but wrote separately to address “mens rea issues” with regard to the ATF regulations. 

           Kavanaugh noted that a person violates the licensing and record-keeping requirements of the Gun Control Act only if they act “willfully”, which means the Government must prove the person knew their conduct was unlawful.  But the background check provision only requires that a person act “knowingly”, which generally does not require knowledge that the conduct was unlawful. 

           “That lesser ‘knowingly’ mens rea requirement could therefore create concerns about fair notice, at least in some cases”, Kavanaugh said.  “[I]f the Government were to charge a background check violation against an individual who was unaware that he was violating the law, that defendant might have a due process argument based on lack of fair notice”, Kavanaugh said.

           Justice Jackson concurred, but wrote separately to emphasize the Court’s role in evaluating a statute’s delegation of authority to an agency is to determine only whether the agency’s regulations “transgressed those bounds.”

           “Proper excess-of-authority review must focus on actual statutory boundaries, not on whether the agency’s discretionary choices overlap with what we, as unelected judges, would have done if we were standing in the agency’s shoes”, Jackson said.

Dissenting opinions

           Justice Thomas dissented.  He said the Court was rewriting statutory text so that it can regulate weapon parts kits.

           He said weapon parts kits themselves “do not meet the statutory definition of ‘firearm.’” 

           “That should end the case”, Thomas said.  “The majority instead blesses the Government’s overreach based on a series of errors regarding both the standard of review and the interpretation of the statute.”

           Justice Alito dissented.  He said the Court applied the wrong standard of review for evaluating facial challenges.  He called that standard the “Salerno test”.

           “If I were satisfied that the Salerno test should control here, I would join the opinion of the Court”, Alito said.  “But I am not certain that the Salerno test should govern.”

           The Salerno test holds that a law passed by Congress or a state legislature “should not be held to be entirely unenforceable just because it would be unconstitutional to apply it in just a few situations”, Alito said.  “That would represent unjustified judicial interference with the authority of the body entrusted under the Federal Constitution or the constitution of a State with the authority to make law.”

           “This threat to legislative authority is not present when a regulation is challenged”, Alito said. 

           “Applying the Salerno rule in a case in which a rule is challenged under [the Administrative Procedure Act] as exceeding the agency’s statutory authority may have far-reaching consequences”, Alito said. 

Since plaintiffs cannot win under Salerno unless they can show that there are “no set of circumstances” in which the regulation would be consistent with the statute, and since only “an extraordinarily obtuse agency” would write such a “completely wrong” regulation, “plaintiffs would always lose”, Alito said.  “Thus, this extension of Salerno would represent a huge boon for the administrative state.”

“I would either direct the parties to brief the Salerno issue or vacate the judgment below and remand so that the issue can be addressed first by the Court of Appeals”, Alito said.