The Supreme Court’s opinion in Bondi v. VanDerStok was a disappointment. However, despite what some commenters have said, it’s a setback, not a defeat.
After having read the opinion written by Justice Neil Gorsuch, the concurrences of Justices Kavanaugh, Jackson, and Sotomayor, and the dissents written by Justices Alito and Thomas, what the 7-2 majority did was muddy the waters.
Basically, the court treated the lawsuit as a facial challenge, meaning the Biden-ATF rule would have to be unconstitutional in all circumstances. This is the most difficult challenge to win, especially as it’s untrue. Had the lawsuit been just about Polymer80 and its kits, it would have been an “as applied” challenge, which is far easier to win.
The court held there were some cases in which the unfinished frame was so close to usable that it met the definition of a frame, so it would be covered under the definition contained in the Gun Control Act of 1968 (GCA). This was one of the points with which Justice Thomas disagreed. Thomas said only a finished frame or receiver would qualify.
However, the GCA specifically said something that could be readily converted to a weapon, such as a starter pistol, is covered by the Act. The court also introduced the concept of an “artifact noun” which is characterized by the intended use instead of the item’s current state. The court cited an Ikea table kit as an example. It’s a carton of pieces but the intent is to assemble it into a table.
The court focused on Polymer80’s Buy Build Shoot kit because of claims a complete, functioning weapon could be finished and assembled in about 20 minutes, missing only a Glock-style magazine; sort of an instant “ghost gun” police would be unable to trace.
While Polymer80 went into bankruptcy, there are still manufacturers producing 80% frames and selling them direct to consumers without serial numbers. Israeli-manufacturer Geissler Defence is one of these; its kits include only a Glock-compatible frame, a jig and rails.
While the Supreme Court determined there were some products, like the Polymer80 kit, that fit in the Gun Control Act’s definition, the justices freely admitted others do not. As usual, the court declined to set any kind of brightline to determine on which side a particular product might fall.
There are also 80% metal frames for do-it-yourself 1911s. But these definitely are not 20-minute jobs. Among other things, they require milling for the rails and, for best results, a milling machine that a person would have to acquire to legally keep an unserialized gun.*
Sellers of the products made by Geissler Defence and other manufacturers say that shipments of the frames cannot include any other parts. It seems it’s okay to buy all the other parts in a single order as long as it’s a different order from the frame.
The VanDerStok decision also said the ATF’s rule on unfinished frames and receivers did not violate the Administrative Procedures Act The court determined the ATF clearly had the had the authority to regulate weapons and the new rule was a legitimate exercise of that authority. The Fifth Circuit had held the ATF did violate the law and this is what else the Supreme Court reversed.
There are a few avenues to quickly correct the Biden excesses and overcome the VanDerStok ruling. First, of course, is President Trump outright repealing the new rule. Alternatively, he could order the ATF, working with the industry, to create a real definition of when a product is a frame or receiver and when it’s not. It could be as simple as requiring frames be sold separately from other components.
The important thing to keep in mind is we are not down and out. We’re not even down for the count. But we have to have to put as much pressure as we can on the Trump administration to persuade them to act.
*Anyone contemplating doing their own build should look at the current requirements and restrictions on Privately Manufactured Firearms. For example, you cannot get any physical assistance, such as machining or any required gunsmithing, from anyone else without first obtaining a serial number from the ATF.
