On March 26, the Supreme Court ruled that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) may regulate gun assembly kits as “firearms.”
The court’s decision shows how judges can re-write a statute or a constitution by fiddling with the normal rules for interpreting legal documents.
The case was Bondi v. VanDerStok. The media sometimes call it the “ghost gun” case.
The court concluded that the ATF could regulate gun assembly kits as “firearms” because they are “weapons” under the federal Gun Control Act of 1968. To see why this is wrong, let’s start with the Act’s definition of “firearm:”
(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; or (D) any destructive device.
Rules of Interpretation
Now, interpreting legal language like this is not rocket science. There are some standard guidelines called “rules of construction”—or sometimes “canons of construction” or “maxims of construction.”
The first and most important maxim in reading a document (including a law) is to seek the intent of those who adopted it. When the document is a statute, you seek the intent of the legislature that passed it. In the case of the Gun Control Act, you try to reconstruct the intent of Congress when it passed the law in 1968.
Another basic rule is to apply the ordinary meaning of the text as employed in formal English. A statute probably would not use the term “weapon” to mean a male generative organ, because that’s colloquial or slang.
Under another rule of construction, you have to examine the “context” of the word or phrase. This includes the surrounding language and previous or contemporaneous events.
Still another rule applies to lists appearing in the document: If there is a list, you usually can assume that only listed items are included. Items off the list usually are excluded.
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Now let’s apply those rules to the word “weapon” in the Gun Control Act.
What is a “Weapon?”
The first, and most important, rule tells us to seek the intent of Congress when it passed the Gun Control Act in 1968. Next, we apply the normal meaning of “weapon” in the formal English of 1968. A typical dictionary definition for “weapon” was “an instrument of offensive or defensive combat . . . [such] as a club, sword, gun, or grenade.” As you can see, this definition does NOT include unfinished weapons or weapon parts.
The next rule or maxim tells us to look at the context of the word “weapon.” The Gun Control Act authorized the ATF to regulate:
a weapon, or
a destructive device, or
a “starter gun”—that is, a particular kind of unfinished weapon, and
specifically-listed parts of a weapon—that is, frames or receivers and mufflers or silencers.
Thus, the statute lists certain components and one unfinished item (the starter gun). But it leaves out all others—including assembly kits. That tells us that other components and unfinished instruments are not covered by the law.
Additionally, the 1968 statute replaced an earlier law called the Federal Firearms Act. The earlier law defined a “firearm” as “any weapon . . . designed to expel a projectile or projectiles by the action of an explosive . . . or any part or parts of such weapon.”
When passing the 1968 Gun Control Act, Congress could have continued regulation of “parts,” but it specifically chose not to do so. This tells us that assembly kits are not “weapons” under the Gun Control Act.
That should have been the end of the case: The ATF exceeded its power by trying to regulate something it had no authority to regulate.
What the Court Said
Yet in VanDerStok, seven of the nine justices held that the Gun Control Act authorized the ATF to regulate assembly kits. (Justices Clarence Thomas and Samuel Alito dissented.) The court’s opinion was written by Justice Neil Gorsuch.
In the most important part of his opinion, Justice Gorsuch placed the word “weapon” into a technical class of words he called “artifact nouns.” He pointed out that sometimes people refer to an unfinished artifact as if it were finished. Thus, an author might refer to his unfinished manuscript as “my novel.”
Hence he concluded that a “weapon” could include an unfinished item—or just a collection of parts.
But this employs colloquial rather than formal usage (i.e., calling an unfinished novel a “novel”). It also relies on a word category (“artifact noun”) previously unknown to the law. And it brings about a result Congress never intended.
What the Court Did
Justice Gorsuch pointed out that gun-manufacture technology has changed since the Gun Control Act was adopted. In 1968, only experts with specialized equipment could assemble guns. Today, almost anyone can. So essentially what the court tried to do was to “update” the Gun Control Act to accord with modern conditions.
This procedure is a lot like the one Justice Gorsuch followed in Bostock v. Clayton County (2020), where he “updated” the 1964 Civil Rights Act. That law banned discrimination based on “sex,” meaning discrimination against women or men. Justice Gorsuch changed it to add sexual orientation and gender identity—another change Congress never intended (and had repeatedly rejected).
The problem with this is that updating federal statutes is the job for the democratically-elected Congress, not for appointed-for-life judges. And under the Constitution, only Congress—not the courts—possesses “the legislative Power.”
Manipulating the Constitution
Justice Gorsuch is an outstanding jurist and usually does not make this kind of mistake. Unfortunately, I can’t say the same about the (mostly leftist) law professors who use word games to “prove” the Constitution says what they want it to say.
Actually, the Founders wrote the Constitution to be applied using the rules of interpretation prevailing in their own day. These rules were very much like those that prevail today. Being faithful to the Constitution requires that you follow the Founders’ rules for reading it. When you distort those rules, you distort the document.
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