Opinion

The Supreme Court of the United States (SCOTUS) just heard oral arguments on the Vanderstok v. Garland case. This case is critical.

Why, you ask? Let me explain.

Vanderstok challenges the new BATFE rule about “ghost guns” (gun controllers’ term), or guns assembled from parts by an individual (not a federally licensed manufacturer) and without a serial number that can allegedly be used to trace a firearm if found at a crime scene.

The BATFE used to hold that a receiver completed to 80% was not a firearm because it was not “readily convertible” to an actual firearm. Note that it has never been illegal under federal law for people to make their own firearms, but only to transfer those to another person.

With its new rule, the BATFE shifted the law to make it illegal to possess any items or parts that could become a working firearm, thereby evading regulation.

The old 80% rule is gone and is now 60%, 40%, or even 0%, depending on what the BATFE determines on that particular day.

Set aside that criminals rarely abandon their guns at crime scenes, that they almost always use stolen guns, that they grind off serial numbers to defeat any tracing of their firearms, and that tracing seldom solves crimes. Nevertheless, the BATFE argues that a crime wave is happening because people are allowed to make their own unserialized guns, which are untraceable.

The Vanderstock case asserts that the BATFE overstepped its authority and expanded upon the law passed by Congress with its new “ghost gun” regulation. Note that this is not a Second Amendment case. It is a rogue federal agency case.

However, the potential consequences of this case are far more numerous than the allegations in the case cover.

Here is why. Whatever amount of skill and work it takes to turn an unfinished receiver into a working firearm, it takes far less of both to convert a semi-auto into a machine gun. Machine guns, of course, are highly regulated under the NFA and other laws. No new ones may be made and transferred into non-government possession. Violation of this prohibition is subject to severe penalties.

So, if the BATFE should win the “readily convertible” argument in the Vanderstock case, expect them to declare that all semi-autos are “readily convertible” into machine guns and are therefore banned under the logic of their argument in the Vanderstock case.

Yes, the legal possession of semi-autos firearms is potentially on the line in the Vanderstock case.

In the Vanderstok oral arguments, Justice Alito asked the U.S. Solicitor General handling the case (not an exact quote): If I have eggs, diced ham, an onion, cheese, and a few other items on my kitchen counter, is that then considered a Western Omelet? The Solicitor General replied (also not an exact quote): No, because those ingredients have not been combined and processed, and those ingredients have other legitimate uses besides making a Western Omelet. Of course, this response is a dodge.

Alito posed a great question analogous to homemade firearms and about at what point ingredients become a specific product. With the benefit of hindsight, I could pose an even more exact analogy. Suppose I am at a restaurant and order a Western Omelet. Suppose the server brings me some eggs, diced ham, an onion, some cheese, and a few other ingredients. Suppose these ingredients even came with instructions about how to cook and serve a Western Omelet. With a smile the server says, enjoy your omelet.

I reply that this assembly of ingredients is not a Western Omelet and I would refuse to pay the tab for it. Equally, a box of gun parts is not a firearm until it is assembled into a working firearm, even if the box includes instructions about how to do this.

The legal heads are predicting that SCOTUS will side with Vanderstok and reverse the BATFE’s overreach on frames and receivers, albeit possibly with a narrow and technical decision. We shall see.

But don’t ignore that much more could be riding on this decision, including the BATFE’s effective green light to declare that all semi-autos are illegal to possess because they are “readily convertible” into machine guns.

Best wishes,

Gary Marbut, President
Montana Shooting Sports Association
www.mtssa.org
Author, Gun Laws of Montana
www.mtpublish.com

About Gary Marbut

Longtime Montana political observer and participant Gary Marbut is president of the Montana Shooting Sports Association, the primary political advocate for Montana gun owners.