The Supreme Court will hear oral arguments next week, on October 8, in Garland v. VanDerStok, the challenge to the radical expansion of the regulatory definition of "firearm" in the Gun Control Act (GCA). Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition passed by Congress in 1968. And both left the non-controversial regulatory definition of "firearm frame or receiver" undisturbed since 1968. But suddenly in 2022 ATF promulgated a Final Rule redefining those terms to include materials, tools, and information that a person with knowledge and skill can use to fabricate a firearm or a frame or receiver.
One of the most hard-hitting amici briefs filed in support of the challengers to the regulation is the brief of the States of West Virginia and 26 other States. ATF, the brief argues, "is a political briar patch because of its rulemaking authority." That characterization is from a law review article with the parodistic title "Almost Heaven, West Virginia?: The Country Road to Take Firearm Regulation Back Home to Congress and the States." That play on words brings together John Denver's "Take Me Home, Country Roads" with the major question doctrine set forth in West Virginia v. EPA, 142 S. Ct. 2587 (2022). If that rule of law applies to anything, it applies to ATF's recent the regulatory rampage.
Given the political volatility of the "gun control" issue, Congress has historically been torn between constituents who support the Second Amendment and those who wish to criminalize various forms of acquisition and possession of firearms. Because that the issue is a "major question," Congress writes gun statutes carefully and narrowly in a manner that leaves nothing to chance. As the States' Brief says:
