Fifth Circuit panel upholds ruling vacating provisions of ATF's new rules

 July 25, 2023

A federal Fifth Circuit appeals court panel upheld a lower court's ruling to vacate specific provisions of the Bureau of Alcohol, Tobacco, Firearms, and Explosives' unilateral redefinition of partially complete firearm "frames and receivers" as actual weapons subject to the Gun Control Act of 1968, Breitbart reported.

The challenged ATF rule, which would impose background checks and serial number registration requirements on unfinished weapons components and parts kits as if they were completed firearms, is just one part of President Joe Biden's anti-Second Amendment agenda that seeks to restrict the rights of citizens to possess firearms they built themselves.

Vacatur of ATF's "frames and receivers" rule partially upheld

In early July, U.S. District Court Judge Reed O'Connor of Texas decided in VanDerStok v. Garland that the ATF had overstepped its statutory authority in redefining partially complete frames and receivers as actual regulated firearms and vacated the entire ATF rule as unlawful, though a temporary stay was issued by the judge on his own ruling to allow a brief window of appeal for the federal agency.

The ATF did indeed appeal that decision to the Fifth Circuit but found little favor with a three-judge panel that just upheld O'Connor's ruling, at least with respect to the challenged provisions of the ATF's frames and receivers rule, though the panel did express skepticism toward the district judge's decision to vacate the entire rule finalized by the ATF last year.

According to the four-page unanimous ruling, plaintiffs had challenged two specific provisions of the ATF's new rule, the first of which "expanded the ATF’s authority over partially complete, disassembled, or nonfunctional frames and receivers that may be 'readily converted' into 'frames and receivers,'" and the second of which treated weapons components and parts kits as if they were complete and functioning firearms under the GCA.

"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," the judges wrote in the unsigned order. "'[V]acatur ... reestablish[es] the status quo ante,' ... 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."

District judge may have gone too far in vacating entire rule

According to The Reload, this Fifth Circuit panel ruling strikes down yet another attempt by President Biden to unlawfully restrict gun rights via executive action and rule-making, and assuming the entire Fifth Circuit and Supreme Court decline to further intervene in the case, will allow manufacturers to continue to produce and sell unfinished firearm frames and receivers and parts kits in states where such components are not similarly regulated.

However, the three-judge panel did appear to agree with the ATF that Judge O'Connor himself had gone too far in vacating the entire rule and imposed a stay on the vacatur of the unchallenged provisions of the rule that may ultimately survive the court's scrutiny.

"The ATF is likely correct, however, that the vacatur was overbroad," the judges wrote. "The district court analyzed the legality of only two of the numerous provisions of the Rule, which contains an explicit severability clause. Where a court holds specific portions of a rule unlawful, severance is preferred when doing so 'will not impair the function of the [rule] as a whole, and there is no indication that the regulation would not have been passed but for its inclusion.'"

"Because the agency has shown a strong likelihood of success on its assertion that the vacatur of the several non-challenged parts of the Rule was overbroad, we STAY the vacatur, pending appeal, as to the non-challenged provisions," the ruling added.

The panel then expedited the case to the next available slot on the oral arguments schedule and imposed a 10-day administrative stay on its own order to allow the ATF an opportunity to further appeal the matter to the entire Fifth Circuit or the Supreme Court.

Pro-gun groups involved in lawsuit celebrate Fifth Circuit ruling

The Firearms Policy Coalition, which fought against the ATF rule on behalf of individuals and manufacturers, said in a statement through senior attorney Cody Wisniewski, "We’re elated that the Fifth Circuit has seen through ATF’s unpersuasive arguments and has determined that ATF failed to show it is likely to win on appeal. ATF lost at the district court and has now lost its first bite at the Fifth Circuit; we look forward to continuing to win against ATF’s unlawful and unconstitutional gun control regime."

The Second Amendment Foundation also intervened in the case against the ATF's rule and SAF executive director Adam Kraut said in a statement, "The court issued a ruling which declined to stay our successful challenge during this appeal. As this case moves forward, we expect to again prevail on the portions of the Final Rule that we challenged. The court’s finding that ATF had not demonstrated a strong likelihood of success on the merits bodes well for SAF and its members."

Alan Gottlieb, the founder and executive vice president of SAF, said of the ruling, "We’re delighted the court ruled in favor of our challenges to the Biden administration’s overreach, and we will pursue this case to its ultimate conclusion."

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