In Bondi v. Vanderstok, seven justices of the Supreme Court—those other than Justices Clarence Thomas and Samuel Alito—ignored the plain language of the Gun Control Act of 1968 (GCA) and delivered one of the worst examples of legislating from the bench since Roe v. Wade.
The seven overturned the decision of the U.S. Court of Appeals for the Fifth Circuit in VanDerStok v. Garland (2023), which had upheld a decision of the U.S. District Court for the Northern District of Texas.
The lower courts had found that the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) exceeded its authority by imposing a rule, in 2022, declaring that something that can be modified into a frame or receiver of a firearm is a frame or receiver even if not modified, and that an unassembled firearm parts kit can “expel a projectile by the action of an explosive,” and that both are thus subject to the administrative requirements the GCA imposes relative to frames, receivers, and firearms.
For people not familiar with firearm nomenclature, a “frame” is typically the grip portion of a handgun, containing the trigger and related parts. A “receiver” is typically the portion of a rifle or shotgun to which the barrel is attached, or which contains the trigger and other firing components.
The court’s ruling has a negative effect on do-it-yourself, firearm-building kits, which runs afoul of the tradition, throughout our nation’s history, of Americans making firearms for their personal use, and of the GCA’s preamble, which states that the Act is not intended “to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens.”
However, more concerning is that by the court’s reasoning, the BATFE could declare Americans’ 20 million or so AR-15 receivers to be “machineguns,” thus illegal to possess, on the notion that they could be modified into the receivers of M16s.
The Law at issue
The Gun Control Act of 1968 (GCA) requires a person engaged in the business of manufacturing firearms to obtain a federal license, keep sales records, and mark a firearm he produces with a serial number. A person who makes a firearm for himself isn’t required to do those things.
Section 921 of the GCA defines various things for purposes of the law. Relevant here, 921(a)(3) defines “firearm” to include:
(A) any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive,
(B) the frame or receiver of any such weapon,
(C) any firearm muffler or firearm silencer, and
(D) any destructive device.
Additionally, 921(a)(25) defines silencers and mufflers to include “any combination of parts . . . for use in assembling” a silencer or muffler, and 921(a)(4)(C) defines “destructive device” to include any “combination of parts” for “converting any device into any destructive device . . . and from which a destructive device may be readily assembled,”
A plain reading of those provisions leads to four inescapable conclusions:
1. (A) is limited to fully-assembled firearms. It does not include unassembled firearm parts kits.
2. (B) is limited to a frame or receiver. It does not include something from which a frame or receiver could be made.
3. To be a “firearm” under (B), an item must be capable—without modification—of serving as a “frame or receiver” that, when assembled with other firearm parts, will produce what is described in (A)—a device that will go “bang” when you pull the trigger. Otherwise, it is not a “frame or receiver,” thus it is not a “firearm,” thus it is not subject to the GCA’s administrative requirements for a “firearm.”
4. In (A), a “weapon” can include a device that can be converted into a “weapon;” and in 921(a)(25) and 921(a)(4)(C), a “silencer,” “muffler,” or “destructive device” is defined to include a combination of parts from which those devices can be assembled; but there is no “conversion” or “combination of parts” verbiage for (B) “a frame or receiver.”
The Fifth Circuit noted, the BATFE’s rule “purports to supplement the GCA’s definition of ‘firearm’ by including the following language: ‘The term shall include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.’”
However, it further noted, “Congress explicitly removed such authority when it enacted the GCA. The GCA’s predecessor statute, the Federal Firearms Act (“FFA”), had specific language that authorized regulation of ‘any part or parts of’ a firearm. However, Congress removed this language when it enacted the GCA, replacing ‘any part or parts’ with just ‘the frame or receiver of any such weapon.’ Thus, the GCA does not allow for regulation of all weapon parts.”
Further, the Fifth Circuit noted, “In the GCA’s definition of ‘firearm,’ the first subsection includes flexible language such as ‘designed to or may readily be converted to expel a projectile by the action of an explosive.’ But the subsection immediately thereafter, which contains the term ‘frame or receiver,’ does not include such flexibility. . . . Thus, we presume the exclusion of the phrase ‘designed to or may readily be converted’ in the ‘frame or receiver’ subsection to be purposeful, such that ATF cannot add such language where Congress did not intend it to exist.”
The Supreme Court’s ruling
The Constitution does not include a “right” to murder the unborn, but in 1973 seven justices of the Supreme Court thought it would be better if it did, hence Roe v. Wade.
Similarly, the Framers of the Bill of Rights considered the right to keep and bear arms to include the possession of the same (or better) small arms as are issued to members of the military. But in District of Columbia v. Heller (2008), which was concerned with handguns, five justices of the court, led by the great “originalist,” Justice Antonin Scalia, said that M16s can be banned. (More on that abomination here.)
In one of its better moments in Heller, the court said, though it didn’t really mean it, that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not . . . judges think that scope too broad.”
But, it has often been the case that when judges think Congress should make gun laws more oppressive than it has, they have pretended that the extent to which people have the right to keep and bear arms hinges on the extent to which guns are misused.
For example, Justice Stephen Breyer, dissenting in Heller, complained that “Handguns are involved in a majority of firearm deaths and injuries in the United States.” And, dissenting in New York State Rifle & Pistol Association v. Bruen, in which the court struck down New York’s restrictive carry license law as a violation of the Second Amendment, he began by saying “In 2020, 45,222 Americans were killed by firearms.”
In both cases, Breyer knew his words had no bearing on the issues before the court. He wrote them because it was all he could do; the Second Amendment was not on his side.
The VanDerStok majority opinion (written by Justice Gorsuch) didn’t reveal its anti-gun social activism so obviously. But, it said, while law-abiding Americans might use parts kits to assemble firearms for their own use, “criminals also find them attractive. . . . In 2017, law-enforcement agencies submitted about 1,600 ghost guns to the federal government for tracing. By 2021, that number jumped to more than 19,000.” And, the BATFE said that parts kits “pose a challenge to law enforcement’s ability to investigate crimes.”
Note: Probably not a big challenge. Most criminals who commit crimes with guns don’t leave their guns at crime scenes to be recovered by police and examined for a serial number. And, Bureau of Justice Statistics surveys of state prison inmates who committed crimes with guns have consistently found that most acquired their guns through theft, the black market (stolen and illegally trafficked guns), or acquaintances (which includes straw purchasers) to avoid being connected to their guns’ serial numbers.
So, to fix a problem where Congress saw none, VanDerStok’s majority said that because 921(a)(3)(A) defines “firearm” to include “(A) any weapon . . . which . . . may readily be converted to expel a projectile. . .,” 921(a)(3)(B)—“the frame or receiver of any such weapon”—should be read as if it also says “or any device that may be converted into a frame or receiver.”
And, it said, firearm parts kits that can be assembled into operable firearms without much effort, even without being assembled, are “weapons” that can “expel a projectile by the action of an explosive.”
Justice Clarence Thomas’ dissent
The NFA (National Firearms Act of 1934) defined “firearm” narrowly. The term covered only certain short-barreled shotguns or rifles, machineguns, and silencers or mufflers. Congress broadened that definition four years later through the Federal Firearms Act of 1938 (FFA), defining “firearm” to include “any weapon . . . designed to expel a projectile or projectiles by the action of an explosive . . . or any part or parts of such weapon”. . . .
In 1968, Congress replaced the FFA with the Gun Control Act (GCA). . . . The GCA sets forth a narrower definition of “firearm” than the FFA did. Its definition . . . states that a “firearm” is:
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer;
(D) any destructive device. . . .
Whereas the FFA had treated “any part or parts” of a firearm as a regulable firearm, the GCA deems only a firearm’s “frame or receiver” to be firearm parts that qualify as a firearm in their own right.
Congress left the terms “frame” and “receiver” undefined. Shortly after the GCA’s enactment, the Bureau of Alcohol and Tobacco Tax Division promulgated a regulation defining “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” . . . .
At the time of the GCA’s enactment, the term “frame” was generally understood to mean “the basic structure and principal component of a firearm.” And, the term “receiver” was generally understood to mean the “part of a gun that houses the breech action and firing mechanism.” Thus, ATF’s initial definition of “frame or receiver” accorded with the terms’ ordinary meanings. . . .
ATF ’s definition also aligned with the GCA, because for “any weapon” to “expel a projectile by the action of an explosive,” §921(a)(3)(A), the weapon must have both a mechanism that will initiate that explosion and a way to seal the firing chamber. In other words, the weapon must have a “frame” or “receiver.” Thus, by defining frame or receiver as the parts of a gun that provide “housing for the hammer, bolt or breechblock, and firing mechanism,” ATF’s initial definition fit neatly into the statutory scheme. This understanding of “frame” and “receiver” governed for over 50 years.
But, ATF recently changed course (by adopting) a rule redefining “firearm,” “frame,” and “receiver.” Without any change to the statute, this Rule expanded the regulatory definition of “firearm” to include “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” It also broadened the definition of “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver”. . . .
ATF’s Rule . . . . defines “frame or receiver” to include objects that are not frames or receivers, but that may be “converted” into them in the future. . . . (However) [a]s the Government itself admits, the word “‘convert’” means “[t]o change into another form, substance, state, or product; transform; transmute.” If an object can become a frame or receiver only after it is “change[d] into another form, substance, state, or product,” it is difficult to understand how the object can be considered a frame or receiver even before the change occurs. As the Fifth Circuit put it, “a part cannot be both not yet a receiver and a receiver at the same time.”
Furthermore, Justice Thomas pointed out that while 921(a)(3)(A) defines “firearm” to include “weapons that . . . “may readily be converted” into them, 921(a)(25) defines silencers and mufflers to include “any combination of parts . . . for use in assembling” a silencer or muffler, and 921(a)(4)(C) defines “destructive device” to include any “combination of parts” for “converting any device into any destructive device . . . and from which a destructive device may be readily assembled,” 921(a)(3)(C) says only “frame or receiver.” Nothing about converting or assembling.
And, he noted, “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
He continued:
Section 921(a)(3)(A)’s definition of “firearm” includes “any weapon” that “will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Thus, while an object that “may readily be converted” into a gun qualifies as a “firearm” if that object is already a “weapon,” an object that is not already a weapon does not.
The ordinary meaning of “weapon” does not include weapon-parts kits. At the time of the GCA’s enactment, the word “weapon” was understood to mean “an instrument of offensive or defensive combat . . . something to fight with . . . something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy.” A weapon-parts kit is not a weapon until it is converted into an operable gun.
The danger to Americans’ AR-15s
As noted above, by the court’s reasoning, the BATFE could declare AR-15 receivers to be “machineguns,” because they could be modified into M16 receivers, which would make them contraband because they were not registered under the NFA and because 922(o) prohibits the private possession of a “machinegun” manufactured after May 19, 1986.
Again, Justice Thomas:
If an object already is what it may be converted into, then semiautomatic AR-15s would seem to be partially complete, automatic machineguns. This reasoning exposes the manufacturers, sellers, and owners of AR–15s to criminal liability under the NFA.
There aren’t enough votes in the Senate to break a Democrat filibuster, so for the present Congress isn’t going to correct the BATFE’s and Supreme Court’s willful errors. However, Pres. Trump should order the agency to immediately reverse its 2022 rule and issue a new rule that comports with the concerns raised by the District and Fifth Circuit courts, and Justice Thomas, and order the DOJ to not press charges against anyone for violating the 2022 rule.
Furthermore, with the Supreme Court likely to hear cases challenging state-level bans on “assault weapons” and ammunition magazines that hold more than 10 rounds, he should order the Solicitor General to file an amicus brief and participate in oral arguments before the court in any such case, taking the position that rifles such as the AR-15 and similar firearms, and standard-capacity magazines, are within the scope of the right to keep and bear arms.
Copyright © Mark Overstreet 2025