The Supreme Court’s ruling in VanDerStok wasn’t completely unexpected, though I thought a 6-3 decision was more likely than Justice Neil Gorsuch joining in the majority (and writing the opinion, no less). It’s also not surprising to see the contours of the decision twisted by the anti-gun media in an attempt to read more into the opinion than what’s really there.
At Vox, for example, their big takeaway is that the ruling was “a rare loss” for gun companies. Honestly, from a bottom-line standpoint the decision is good news for gun companies, since the Court just made it harder for folks to build their own firearm. The website also erred in its description of the case and the nature of the challenge.
Though this Court normally takes an expansive view of gun rights, it disagreed with the VanDerStok plaintiffs, meaning ghost guns are still subject to the same laws they were subject to yesterday.
VanDerStok wasn’t really a Second Amendment case, despite Vox’s characterization. The challenge to the ATF rule (not a law, as Vox claims) was based on a violation of the Administrative Procedures Act; essentially, that the ATF overstepped its bounds and rewrote a portion of the Gun Control Act rather than merely interpreting it.
The main thing that Vox got right is that while the Supreme Court upheld a facial challenge to the ATF rule, so long as it’s in place it can still be subject to an as applied challenge. But this wasn’t a “rare loss” to gun companies, if for no other reason that the vast majority of those companies only sell completed firearms to begin with.
The opinion pages of the Los Angeles Times offered another hot take on VanDerStok, and the inanity was once again on full display in the headline “Supreme Court says if you build it, it’s still a gun”.
That was never in dispute in VanDerStok. The question was when does something that can become a firearm actually become one under federal law? None of the plaintiffs argued that a completed firearm shouldn’t be considered a gun because it was privately made, and the Court did nothing to impose new requirements on privately-manufactured firearms.
Columnist Anita Chabria offered up an overly expansive assessment of the VanDerStok ruling, declining to mention the fairly narrow opinion of the majority or the fact that it leaves open the possibility of as applied challenges in the future. Instead, she approvingly quoted New Jersey’s anti-gun Attorney General Matthew Platkin, who, as you might imagine, was happy to obfuscate on the issue.
“Why would people be comfortable with somebody who physically abused their wife to the point that they were convicted of a domestic violence offense being able to go to a gun show and buy the same gun broken up into pieces that they can’t buy when it’s assembled at a gun store?” Platkin said. “What do you think that person is going to do with that gun?”
Why would people be comfortable with that same person stealing a gun, purchasing one the illicit market, or having a family member or friend straw buy a gun for them? In Platkin’s hypothetical, the possession of the firearm itself is a criminal offense. And despite Chabria’s claims, the Supreme Court didn’t say that making your own gun is illegal. At most it said that if something only requires 20 minutes of work to put together it should be considered a firearm. If 80% complete frames and receivers can now be considered completed firearms, I doubt it will be long before a company offers a 50% frame or receiver as a test case.
Don’t get me wrong here. VanDerStok was a gift to anti-gun administrations, and Justice Brett Kavanaugh’s concurrence that essentially said the ATF and DOJ should be given the benefit of the doubt not to engage in overzealous prosecutions for unwitting and unwillful violations of the law is downright laughable given the ATF’s recent policy of treating any error on the part of federally licensed gun dealers as “willful” and potentially cause for revocation of their license. There’s a reason gun control advocates are cheering the decision and why 2A advocates are complaining about it, but that doesn’t mean that Vox or the L.A. Times columnist were accurate in their takeaways of the case.
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