The Biden Administration’s Custom-Gun Grab

An ATF officer fires a firearm used in crimes to collect casings for the National Integrated Ballistic Information Network at a shooting range in Glendale, Calif., 2017. (Mario Anzuoni/Reuters)

President Biden assumed the power to legislate where only Congress may do so.

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President Biden assumed the power to legislate where only Congress may do so.

I n 2008, Darren Peters founded a full-service machine shop in Florida with a vision of excellent quality and sterling-class workmanship. His small business has expanded its product line, adding professionals to his team and building a reputation for excellent service and products. In every sense, Darren’s workshop fulfills the American dream. But now, thanks to a bureaucratic rule from the Biden administration, that could all come to end.

What is Darren’s great crime? His business, Tactical Machining, creates American-made high-quality parts for guns and products for the home gunsmith. Darren helps others help themselves, and for that, the government might kill his business. One of President Biden’s campaign-trail promises was to crack down on so-called ghost guns. One of his very first recommendations to Congress was to pass sweeping gun-control laws, in part targeting firearms parts and kits that help citizens manufacture their own tools of self-defense. When Congress refused to do so, Biden turned to the administrative state to get the job done through bureaucratic rulemaking instead.

On the list of such policies is a recently enacted sweeping regulation — referred to as the Final Rule — drastically expanding the definition of what constitutes a “firearm” under federal law. Issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Department of Justice (DOJ), the regulation clocks in at a whopping 364 pages. If allowed to stand, the Final Rule would wreak chaos in the firearms market, create confusion among consumers about what items are regulated as firearms, and shutter the doors of countless small businesses such as Tactical Machining. Perhaps worst of all, however, it would undermine the historic and precious pastime and right of Americans to build their own firearms.

Individuals have been crafting and customizing personal firearms since before the American Revolution. The mass-production of firearms is relatively new. Fewer Americans today need to manufacture their own arms, as is the case with nearly all other mass-produced items we use regularly. Nevertheless, in the same way that we can grow food in our own gardens or sew our own clothes, our right to build our own guns is not negated by industrialization. Crafting a gun is no more unusual or sinister than any other act of self-sufficiency.

It is because of this right — and the right of Darren and every other manufacturer to operate their business in peace — that in late August, Mountain States Legal Foundation (MSLF) filed a lawsuit to stop the Final Rule. Our clients include Tactical Machining as well as two individuals whose right to craft their own tools of self-defense without government oversight is limited by the new regulation. Our argument to overturn the Final Rule is simple.

Words matter. Congress defined “firearm” in the Gun Control Act of 1968 to include “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” as well as “the frame or receiver of any such weapon.” That’s a mouthful, but it’s important to know what Congress did not include in this statutory definition. It did not include unfinished frames and receivers or weapons-parts kits.

Yet, under the Final Rule, the ATF has expanded the term “firearm” to include just these things! The result is that the Final Rule wildly expands the reach and authority of the ATF in ways Congress has never permitted. And that’s important. Because Congress did not change the statutory definition of “firearm” or give the ATF authority to expand the definition, the Final Rule fundamentally violates the separation of powers secured by our Constitution.

Simply put, President Biden assumed the power to legislate where only Congress may do so.

The Final Rule may subject countless peaceable Americans — including our clients — to criminal penalties for owning or obtaining items that, up until 2022, have never been regarded as firearms. The Final Rule would empower the ATF to put hundreds of firearms producers and retailers — like Darren and Tactical Machining — out of business. You would think that, in a time of economic uncertainty, President Biden would want to keep as many businesses open as possible.

A major culprit behind the Final Rule’s very premise is that ATF bureaucrats have succumbed to anti-gun propaganda from gun-control extremists who also know that words matter. They’ve fabricated very clever words to make the Final Rule possible.

President Biden specifically tasked the attorney general with drafting a regulation that would “rein in the proliferation of ghost guns.” The term “ghost guns” is a disinformation tactic similar to “assault weapons,” in that it has no basis in law or fact and is meant to scare and confuse people. In reality, what Biden and other gun-control extremists are referring to are merely firearms or firearms parts that are manufactured by an individual.

Such guns do not pass through a government-approved dealer for sale and therefore don’t have serial numbers. While gun-control advocates claim that the only reasons a person might want an unserialized weapon are nefarious, it is important to keep the facts straight. Only an extremely small percentage of the guns — around 1 to 2 percent — recovered in connection with criminal activity are unserialized. The vast majority of crimes are committed with guns the government licensed for sale.

The truth is there are myriad reasons that law-abiding Americans might want to manufacture their own weapons: to learn more about the function and construction of firearms, to increase self-sufficiency, or to engage in a historic tradition, to name a few. Building your own arms, however, isn’t easy. In fact, it can be quite difficult without the proper tools and equipment.

Tactical Machining is one of those smaller producers that help Americans build their own arms. However, since the Final Rule went into effect, it has lost tens of thousands of dollars in revenue. Over 90 percent of Tactical Machining’s previously unregulated sales are now subject to federal regulation, and some products, such as jigs, cannot be sold alongside other products. With the potential for criminal penalties, the demand for Tactical Machining’s products has cratered. With compliance costs now through the roof, sales of what is still allowed cannot make up for the loss.

Thankfully, a federal judge in the Northern District of Texas has prevented the ATF from enforcing the Final Rule against Tactical Machining with a limited injunction. However, Darren’s customers are still concerned about potential criminal liability for purchasing newly regulated items. Their concerns are not unfounded. The Final Rule is a behemoth of ambiguity. It’s practically impossible for the average citizen to understand the meaning of the new regulation. Even experienced firearms-regulation attorneys are scratching their heads!

In the short time since the Final Rule went into effect, Tactical Machining has received numerous requests from potential customers asking if it is still legal to buy its products. This uncertainty chills the very willingness of many Americans to patronize businesses such as Tactical Machining. Without customers, Tactical Machining — and similarly situated producers and retailers across the country — will not survive.

Because the limited injunction still leaves Darren’s customers, as well as individual Americans, vulnerable to the predations of the ATF, Mountain States is working to get the injunction expanded nationwide.

MSLF is serious when it comes to the right of Americans to defend themselves and their loved ones — and the right to manufacture the tools of their self-defense. We’re fighting against this unconstitutional governmental overreach that will — in fact, is designed to — put long-standing members of the firearms industry out of business and cut the legs out from under peaceable Americans who want to exercise their Second Amendment–protected rights.

Erin M. Erhardt is an attorney at Mountain States Legal Foundation, where she focuses on First Amendment, Second Amendment, and equal-protection issues.
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