Is anyone tired of winning in the courts yet? No, of course not. That’s why yesterday’s news of yet another Fifth Circuit Court of Appeals victory was just as sweet as the others. The latest judicial win was a ruling in VanDerStok v. Garland, the case challenging the Biden ATF’s frame or receiver rule that is a non-legislative re-definition of what constitutes a firearm.

The ruling by a three-judge panel was unanimous (and glorious). Judge Kurt D. Engelhardt wrote . . .

It has long been said—correctly—that the law is the expression of legislative will. As such, the best evidence of the legislature’s intent is the carefully chosen words placed purposefully into the text of a statute by our duly-elected representatives. Critically, then, law-making power—the ability to transform policy into real-world obligations—lies solely with the legislative branch. Where an executive agency engages in what is, for all intents and purposes, “law-making,” the legislature is deprived of its primary function under our Constitution, and our citizens are robbed of their right to fair representation in government. This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties.

The agency [ATF] rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.

Who could have guessed that? Then there was this gem from Judge Andrew S. Oldham . . .

The [ATF’s] Final Rule is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The [Gun Control Act] allows none of this. I concur in the majority’s opinion holding the Final Rule is unlawful. And I further concur that the matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.

Here’s the FPC’s press release and Snoopy Dance . . .

Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced that the Fifth Circuit Court of Appeals has ruled in their favor, holding that portions of ATF’s “frame or receiver” rule are unlawful in VanDerStok v. Garland. The Rule will remain in effect “pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought,” per an August order from the Supreme Court. The opinion can be viewed at FPCLegal.org.

“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” wrote Judge Kurt Engelhardt for the Court. “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”

“[U]nless and until Congress [] acts to expand or alter the language of the Gun Control Act, ATF must operate within the statutory text’s existing limits,” the Court concludes. “The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law. This it cannot do, especially where criminal liability can—and, according to the Government’s own assertions, will—be broadly imposed without any Congressional input whatsoever.”

“This is yet another massive victory against ATF and a huge blow to the Biden Administration’s gun control agenda,” said Cody J. Wisniewski, FPCAF’s General Counsel and Vice President of Legal, and counsel for Plaintiffs. “ATF has no authority to make law, and the Biden Administration cannot circumvent Congress and the rights of the People through federal agency rulemakings–a point the Fifth Circuit just reiterated. We look forward to defending this win and to continuing to deliver additional victories to the People in the future.”

Plaintiffs in this case are two individuals, Tactical Machining, LLC, and FPC. FPCAF represents the Plaintiffs, alongside Mountain States Legal Foundation.

Individuals who would like to join the FPC Grassroots Army and support important pro-rights lawsuits and programs like these can sign up at JoinFPC.org. Individuals and organizations wanting to support charitable efforts in support of the restoration of Second Amendment and other natural rights can also make a tax-deductible donation to the FPC Action Foundation. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube.

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42 COMMENTS

  1. The ink has been dry on a new version of the restrictions with slightly different wording, but the same intent. Has been waiting since the court fight began. Which will require another long drawn out court battle. While the new restrictions are in place. As long as the ideology and those who support it. Are allowed.

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  3. Given the order denying a stay pending appeal (which SCOTUS mooted by granting one — thanks ACB!), this was inevitable, but it’s still a major ass whuppin.

    Unfortunately, thanks to the open-ended stay ACB handed the government, I predict DoJ will now delay this as long as possible.

    First, they will file a motion for rehearing with CTA5. That’ll burn at least another 90 days (mid February).

    Then they’ll ask for an extension of the time to file a cert petition. They’ll get another 30 atop the 90 they have under the rules.

    That puts the cert petition in front of SCOTUS in mid June at the earliest, meaning it won’t get reached until the “Long Conference” next September.

    So even if SCOTUS denies cert then, DoJ’s gamesmanship will keep this patently unconstitutional and illegal rule in place for another year.

    Once again, thanks 100% to ACB. (Thomas, Alito, Gorsuch, and Kavanaugh voted to deny the request for a stay, so she owns this one.)

    Here’s hoping FPC files a motion with SCOTUS to vacate the stay, and points to DoJ’s gamesmanship as cause for vacating it. That *might* shame ACB into conditioning a continuation of the stay on DOJ filing a cert petition by mid-March (which would allow the Court to at least look at it this term), and if they do not the stay is vacated and the rule is enjoined.

      • major ass whuppin my foot…The atf receives a slap on the wrist for skating along the Gun-Control-Act is one side of the coin. The other side of the coin that always sneaks by is the Gun Control Act itself. Gun-Control-Act denotes an agenda Rooted in Racism and Genocide like a Noose denotes Lynching.

        To continue to ignore the History of Gun Control and allow the Gun Control Act to remain on the books to Bully the Second Amendment like Gun Control nazis bullied defenseless Jews and the Gun Control democRat Party kkk bullied defenseless Blacks is the Crime.

      • She also allowed the open and political government social media censorship to continue, that was the deciding moment for me.

        • From people I know personally who have known and worked with her for many years, she is scary smart and very conservative, which makes her recent wobbliness all the more inexplainable.

          My bet is that all the media intimidation (and the tacit approval of the Biden admin and DoJ of physical threats and assaults against the justices and their families) has caused her to go wobbly. If so, it’s a shame, because once you show those kind of tactics get results, you get a lot more of them.

    • I agree with your thinking. A motion to vacate the stay after such a powerful decision is an entirely appropriate way to hurry this case along. Another important factor is that this is not, strictly speaking, a 2A case, but a case determining the validity of an executive department rule or order, and its adherence to standard rules of statutory interpretation and common dictionary definitions reduces that probability of a grant of review. The odds will only increase if another case in another circuit comes up with a different decision, perhaps by applying Chevron.

  4. Just goes to show you how lawless this administration is. They have lost most of their gun control issues taken to court and certainly will lose many of the others they have proposed. Additionally, they also will run into non-compliance with other rules or proposed laws as has been demonstrated in NY, NJ, CT, IL and other states throughout the nation. Defunding the police does not help when you try to confiscate 300 million plus guns from over 150 million law abiding citizens. Law enforcement is seldom in favor of taking that action and the military in this Country is not supposed to be unleashed on the civilian population and most in both law enforcement and the military will honor their oath to the Constitution and not obey an illegal order. Those who do, well, I hope they understand the consequences particularly the politicians who create the environment for a real insurrection that is always a possibility when people agree that enough is enough.

    • “Real insurrection” is a thing more likely to be acted out by a small group of foreign militants that came through our non existent border. Some Biden is trying to make happen so he can blame ‘extreme maga republicans’.

      At this point, I think Americans are too afraid and simply wont do it. I think the rest of the world knows this.

    • Even the Spaniards aren’t really pissed off yet. They’re still at the “mostly peaceful” stage.

      Though, I will say, they have more sass than American “Conservatives” will probably ever have.

      • “Even the Spaniards aren’t really pissed off yet.”

        Meaning the Catalan separatists?

        • The Catalan separatists seem to have signed on to the deal with the Socialists, and it grants amnesty to the separatists who took part in actions during 2017.

          Yet people are angry at the Socialists. So angry that I’m seeing reports that the PM is, or was for a time, trapped in a building surrounded by protestors.

          And someone shot the former head of PP and founder of Vox in the face, rode off on a bike, then ditched the motorcycle and torched it.

          El Pais has some interesting reporting on it, hinting at what’s going on while still spending quite a bit of time seemingly trying to blame soccer hooliganism or squatter riots. The Guardian meanwhile alludes to fascists and neo-fascists.

          The protests display some levels of organization but nothing like the separatists or organized Leftists groups have shown in the recent past.

          Something else, something more complicated is afoot. Some, perhaps astute or perhaps conspiratorial folks, might note recent events in France, Germany and The Netherlands bear some similarities too, though I’m unaware of anyone trying to outright assassinate politicians in those countries.

    • Its not “insurrection” to remove/resist a proven tyrannical government – its a right and duty. It doesn’t need to be every person, as every person is not what the founders were speaking of for all cases when a tyranny affects a right or a sector of society is unlawfully and unconstitutionally persecuted especially with removal or burden on constitutional rights. It need only be the ones affected by the tyranny, the decision said it its self in defining who ‘the people’ are in this instance with this > “This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties.” > “without the say of the people who are subject to its penalties.”

      • I know people in other countries, especially in Europe, don’t understand this concept below because they don’t have a constitution like ours and don’t have an idea of inalienable rights and never had true liberty by being founded in and raised and immersed in a ‘feudal tyranny’ concept through multiple generations ‘trained’ to accept what their governments have ‘granted’ so they have not the slightest concept of the freedoms of ‘natural rights’, and such infringements as our governments seek to impose on us will seem ‘common sense’ to them.

        Inalienable rights are rights that cannot be taken away by majority vote, society angst and outcry, legislation or executive command. These rights are also referred to as natural rights and include rights such as speech, worship, travel, self-defense, and privacy. They supersede governmental laws and cultural norms. They exist naturally, are inherent to the person, and are not granted by government and do not belong to government and they belong to the individuals only and its completely up to them to choose to exercise them or not. The first 10 enumerated rights in the Bill of Rights in our Constitution are inalienable rights, the Second Amendment (the second of these 10 enumerated rights) has the only specific order, not an instruction or a prohibition or a maybe or permission but a very specific command order, the same command order phrasing given by the founding generation when something absolutely for a fact was not to be done no way no how and the same concept carried forth into our laws today, in the entire constitution and that order is ‘shall not be infringed’. Just as our laws ‘shall not be infringed’ by disobeying the law, that specific ‘command order’ of law to not do this, do not break the law as it shall not be infringed … that same command order concept exists for the Second Amendment as well with, in reference to ‘the people’, “… the right of the people to keep and bear Arms, shall not be infringed.”

        If ‘the people’ ‘fear’ a government infringement of rights, if ‘the people’ ‘fear’ a government use of force against them, if ‘the people’ ‘fear’ a government ‘denial’ of rights, if ‘the people’ ‘fear’ a government ‘seizure’ of ‘property’ — then the government is a tyranny, plain and simple.

        1. The ATF, DOJ, and president (AKA ‘government’) have deliberately exceeded their constitutional authority to create ‘defacto law’ by bypassing congress by use of ‘rule by fiat’ (e.g. Biden’s executive order).

        2. The government (e.g. Biden) has ‘militarized’ and ‘weaponized’ the government (e.g. ATF, IRS) against ‘the people’.

        3. The government has unjustly and illegally and unconstitutionally used ‘deadly force’ against the people (e.g. showing up armed at peoples homes trying to gain entry without warrant or cause … showing up at a home FFL holder and holding child at gun point threatening to shoot the child if the FFL holder did not voluntarily surrender his FFL then seized his property without warrant).

        4. The government (e.g. Bidens DOJ and ATF at Biden’s direction) has continually sought ways to intentionally circumvent the constitution and law and congress to intentionally infringe and deny constitutional rights.

        ‘the people’ ‘fear’ the government. Not because ‘the people’ are physically afraid of the government bully, but because they ‘fear’ for our liberty and justifiably so not just for guns but for all rights and liberty.

        ‘the people’ are, even if all people may not agree especially the left wing politicians and the anti-gun groups which are the very people seeking to impose this tyranny, ‘the people’ are “…the people who are subject to its penalties” which is the persecution and penalties imposed by government upon law abiding people for simply exercising their constitutional rights. One can play ‘semantics’ games all day long trying to say otherwise … but Biden’s government is a tyranny plain and simple.

        • “I know people in other countries, especially in Europe, don’t understand this concept below because they don’t have a constitution like ours”

          Observation: For the vast majority of societies in the world, if they aren’t being carted off to the Gulag, or worse, all is right with the world.

  5. They will refuse to obey the outcome and basically go rogue because there is no one to stop their K G B type behavior.

    • Once the stay is lifted /judgment is affirmed if further appealed, attempting to enforce the rule would be a violation of civil rights for which damages could be sought and awarded, including attorney’s fees. They will not go that far.

  6. I look forward to the next case, where the ATF gets slapped silly for re-interpeting “material” error in an FFL’s records as “any” error as sufficient to warrant license revocation. I would hope that an judge will see through the ATF’s revocations as nothing but a smoke screen for gun control by eliminating the source of guns.

    • “I look forward to the next case, where the ATF gets slapped silly for re-interpeting “material” error in an FFL’s records as “any” error as sufficient to warrant license revocation.”

      Well, the 5th circuit sounds like an agreeable 2A circuit to challenge that bullshit…

  8. “Critically, then, law making power…lies solely with the legislative branch.”

    Damn fcking straight!

  9. I’d take such a celebration more seriously if it was accompanied by real actions on other fronts that would assist in preventing recurrences or other future problems that are easily predictable, even just from the recent history.

  11. Time and time again the ATF demonstrates their contempt for the law. Biden and co. constantly talk about things like “the rule of law”, or “save our Democracy”, when in fact they are the largest violators of everything America stands for. Democrats hate America!
    It’s time for the Republican’s to strap some on, and defund the ATF.

    • “It’s time for the Republican’s to strap some on, and defund the ATF.”

      They can’t; minority party.

      The won’t; even if holding House, Senate, Presidency…as proven.

  13. This is a MUCH meatier ruling than the recent one against the ATF and the feds for braces. Rather than being a question of administrative law this is a question of the authority of the ATF in the first place and goes back to the idea of limitations on Chevron Deference. It’s not an addressing of the constitutionality of such laws in the first place, but it’s much better than “oh they just need to go through channels to make it a regulation then we have to go through the courts again.”

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