OPINION:
The Supreme Court is set to hear Garland v. VanDerStok, another case addressing the Biden-Harris administration’s regulatory overreach, but it’s much more than that.
VanDerStok is the latest battle against the Biden-Harris administration’s unceasing efforts to have agencies — not Congress — legislate away Americans’ constitutional rights. And it’s imperative that Americans win.
Americans have made their own guns for centuries. But in 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule that wholly reinterpreted its own authority. For the first time in this country’s history, the ATF imposed the same regulatory requirements on the materials needed for privately made guns as those previously required only for commercial firearm manufacturers and retailers.
Of course, no one voted for the bureaucrats at the ATF, and even the person Americans voted for — the president — does not have the power to enact legislation unilaterally. That is the role of Congress, the elected representatives of the people, and not unelected bureaucrats.
Although Congress has had ample opportunity over the last 50-plus years to amend the Gun Control Act of 1968 to expressly cover the materials and parts kits necessary for the private making of guns for personal use, it has refused to do so.
That may be because Americans have been making their own guns for personal use since the earliest Colonial settlements on the East Coast. In 1621, the Pilgrims, 3,000 miles away from any gunsmiths or their wares, hired an armorer from London to help them produce their own guns, which they needed for their own protection and hunting.
The practice grew throughout the Colonies, especially for those who could not afford a mass-produced gun or who lived too far from the marketplace. And thank God it did; without it, the outcome of the American Revolution might have been very different.
Freeing yourself from tyranny requires guns and ammunition. The British knew this, so even before the revolution began, King George III cut off the importation of arms and ammunition into the Colonies and the materials needed to produce them. So when the inhabitants of Lexington engaged the British redcoats in 1775, many of them did so with homemade firearms and ammunition.
Tyrannical governments know that a citizenry with access to arms or can easily arm itself — through the private making of guns — is harder to dominate, so they aim to disarm the people. Imposing ever-burdensome regulations on gun manufacturers, retailers and buyers such that it is increasingly difficult for law-abiding citizens to acquire firearms is one way to slowly disarm the people, but that can only go so far as long as Americans can manufacture their own.
That is why the Biden-Harris administration and its anti-gun allies have targeted the private making of firearms in this ATF rule.
The ATF asserts that it is trying to curb the use of what it calls “ghost guns” — an Orwellian term designed to scare the public. But while reducing violence committed with unserialized guns sounds like a noble goal, homemade firearms barely register when it comes to crime.
According to a Justice Department study, of the over 11,000 guns seized in 2019 in Chicago, only 1% of them were homemade. In 2018 in Philadelphia, only 13 of the 4,264 guns seized were unserialized and believed to have been assembled from kits.
What these crime statistics make clear is that the ATF’s rule is a solution looking for a problem. Moreover, although the stated targets are criminals, the burden of the regulation falls disproportionately on law-abiding Americans.
Criminals don’t obey laws. No matter how many regulations the ATF generates, criminals prone to gun violence will continue to acquire firearms in the same way they acquire drugs — illegally.
The ATF rule is not about curbing gun violence or taking unregistered firearms out of the hands of criminals. It’s about shutting down 400 years of tradition in which generations of Americans have exercised their right to keep and bear firearms by manufacturing the guns themselves.
Congress never gave the ATF the power to regulate privately made guns and explicitly rejected such authorization. If it is the will of the people that the history and tradition of privately made guns in this country should be limited if not completely curtailed, then the burden of doing so must fall on their representatives in Congress, not on unelected bureaucrats in the executive branch. The Supreme Court has the opportunity and the obligation to rule in favor of Americans and their constitutional rights.
• Michael D. McCoy is the director of the Mountain States Legal Foundation’s Center to Keep and Bear Arms and a former federal prosecutor. His group is co-leading the VanDerStok case set to be argued this term.
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