Setting aside the larger argument over whether the creation of the Bureau of Alcohol, Tobacco and Firearms was an unconstitutional “infringement” on the God-given right to
keep and bear arms protected by the Second Amendment (it was) there’s another immediate threat to our Second Amendment protected rights that every gun owner and constitutionalist should take action to oppose: proposed rule ATF 2021R-05.
The over 100-page long rule attempts to rewrite the definition of what constitutes a firearm by rewriting the definition of frame and receiver and expanding the requirements for identification, or serialization, of firearms.
There are a host of problems with this proposed rule; it is overly long, complicated, confusing even to those well-versed in firearms law and technology and it unconstitutionally encroaches on the powers of Congress, stated in Article 1 of the Constitution.
Article 1, section 1 states that: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
This means that the Executive Branch, headed by the President, cannot legislate, or rewrite the laws passed by Congress – “all” means “all” unless you are the Joe Biden administration.
And that is why those who do not own firearms now and those who never intend to own a firearm should be concerned. What proposed rule ATF 2021R-05 does is nothing less than unconstitutionally usurp the Article 1, section 1 power of Congress to legislate.
Right or wrong, Congress has already defined what a firearm is, what a firearm’s frame and receiver are and what parts need a serial number – and under the Constitution a mere Executive Branch agency has no power to change the laws Congress passes or legislate where Congress has refused to act.
So, point one -- proposed rule ATF 2021R-05 is blatantly unconstitutional even if one accepts the National Firearms Act and its illegitimate spawn are constitutional.
Point two is almost as important as the textual constitutional argument.
The Supreme Court has, through many decisions, held statutes that lack sufficient definiteness or specificity are “void for vagueness.” Such legislation “may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”
In Musser v. Utah, 333 U.S. 95, 97 (1948) the Justices held, “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”
If there was ever a vague law or regulation proposed, proposed rule ATF 2021R-05, is it.
As a recent Sig Sauer Legion newsletter explained:
The proposed rules relating to changing how firearm frames or receivers are defined create problems and should not be adopted. Chief among the problems is the confusion they create - the NPRM is over 100 pages long and explains a very complicated scheme of how to define a frame or receiver. This is completely unnecessary. Where there was once a simple definition that was sufficient for decades, there are now a hundred pages providing more than a handful of poorly defined grandfathered configurations, a loose statement about similar configurations, a requirement that new designs be submitted to ATF for classification, and the requirement to engrave not just one but multiple serial numbers on potentially multiple receivers in a single firearm. The problems that recently developed with the definition after decades of use don’t need a hundred pages of re-definition and multiple serial numbers to be solved.
Even the statute that ATF is charged with enforcing by Congress indicates that a firearm has only one frame or receiver, yet ATF now wants to declare there can be multiple receivers in a single firearm, and in turn require that multiple serial numbers be marked on these receivers. It’s clear these serial number markings on a single new firearm must match, but thereafter serialized parts may be exchanged allowing different serial numbers on the same firearm. Is there a controlling serial number for the firearm, and which receiver does that serial number reside on? Which number(s) will be relayed by police in trace, or is every number on a firearm traced? What happens when a firearm with multiple serialized components is repaired with a component that has a different serial number? This just scratches the surface on the confusion this proposed rule creates about the definition of a firearm frame or receiver.
ATF should drop this complicated scheme and find a simple way as suggested above to follow the law. ATF needs to develop a simple definition that people can understand - like a single characteristic of a single part that all firearms have, and which does not have to be sent to ATF for an official determination.
Allowing a minor Executive Branch bureau to rewrite laws passed by Congress is unconstitutional on its face and rewriting those laws in a way that is so vague and complex that a person of ordinary intelligence cannot understand what is prohibited or required is likewise a violation of the Due Process Clause of the Constitution and longstanding Supreme Court precedent.
We urge every CHQ reader and friend to comment on proposed rule ATF 2021R-05 before August 19, by taking these easy steps:
1. Visit regulations.gov
2. Enter ATF 2021R-05 in the search bar
3. Click the “Comment” button on the proposed rule
4. Cut and paste the text of the Sig Sauer Legion newsletter article in the comment section
5. Enter your e-mail address
6. Fill out the “Tell us about yourself” section
7. Hit submit
Don’t wait – make sure your voice is heard today!
CHQ Editor George Rasley is a certified rifle and pistol instructor, a Glock ® certified pistol armorer and a veteran of over 300 political campaigns, including every Republican presidential campaign from 1976 to 2008. He served as lead advance representative for Governor Sarah Palin in 2008 and has served as a staff member, consultant, or advance representative for some of America's most recognized conservative Republican political figures, including President Ronald Reagan and Jack Kemp. A member of American MENSA, he served in policy and communications positions on the House and Senate staff, and during the George H.W. Bush administration he served on the White House staff of Vice President Dan Quayle.
proposed rule ATF 2021R-05
federal law enforcement
assault weapons ban
National Firearms Act
multiple serial numbers