Just before the New Year, we told you about the ATF’s unprecedented December 27 Open Letter to Federal Firearms Licensees (FFL) redefining “firearm” from the agency’s so-called “Final Rule” on frames and receivers. The “Final Rule” apparently wasn’t as “final” as they wanted it to be. The Open Letter basically said that any unfinished blank, receiver, or frame is a firearm under federal law. The same day, ATF also sent a letter specifically to Polymer80, mentioning several of their products by name, and unilaterally redefining them under the new standard.
Polymer80 responded with a lawsuit on January 9. The suit follows what is becoming a well-worn path accusing the ATF and the Biden Administration of usurping Congressional power through executive fiat. “This lawsuit,” reads the complaint, “challenges the Biden Administration’s unlawful attempt to unilaterally rewrite federal law, create new criminal and civil liability, destroy the ability of Americans to exercise their Second Amendment rights by privately making firearms, and infringe the First Amendment rights of Plaintiff Polymer80, Inc. (“Polymer80”) to market and sell the lawful products targeted by the Biden Administration.”
Polymer80 notes that the “heart” of their business is “the aim to allow customers to ‘participate in the build process’ of creating a constitutionally protected instrument.” As many know, the ability to build one’s own firearm has been legal since the Republic’s founding. Until now.
Polymer80’s Charges
Polymer80s attorneys break that overarching charge down to its component parts in a damning indictment of executive overreach regarding firearms law. The suit has only just been filed with no action yet taken. But these charges are important, as are the similar charges in other suits, which we will note briefly in a moment. For now, let’s take a quick look at the lawsuit’s narrative components.
- “The ATF’s longstanding legal position has been that receiver blanks, jigs, tools, and related instructions do not fall within the ATF’s regulatory jurisdiction because they are not “firearms” as that term is defined and understood under federal law.”
- “Receiver blanks did not fall under the purview of the Gun Control Act of 1968 (“Gun Control Act” or “ACT”), an Act with definitions carefully defined by Congress. Nor did the Act apply to receiver blanks combined with tools, jigs, instructions, and/or kits.”
- “President Biden campaigned on a promise to prompt Congressional action to impose new laws on receiver blanks.”
- “President Biden failed to convince Congress to impose new laws on receiver blanks.”
- “Subsequently, President Biden pressured Defendants [the Justice Department and ATF] to take unilateral action to impose new regulations having the force of law on receiver blanks.”
- “In response to the Biden Administration’s pressure, Defendants adopted a Final Rule. In doing so, Defendants (a) ignored administrative procedures; (b) flouted longstanding principles of congressional intent; and (c) illicitly redefined…the Gun Control Act.
- “The Final Rule unlawfully rewrites federal law by: (1) expanding definitions of ‘frame’ and ‘receiver’ so that ATF may regulate partial frames or receivers; and (2) expanding Congress’ definition of ‘firearm’ to include ‘a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted’ into a ‘firearm.’ These expansions contradict congressionally defined laws and regulations. Congress has never demonstrated an intent to regulate partial frames or receivers or weapon parts kits that could be readily made into a firearm.”
- “The Final Rule not only unlawfully increases Defendants’ regulatory powers but also confers to Defendants the power to hold criminally liable businesses and citizens who wish to exercise their Second Amendment rights.”
- “The Final Rule repudiates the ATF’s longstanding legal position on receiver blanks, expressly stating that prior classification determinations ‘shall not continue to be valid or authoritative…and claiming that receiver blanks now fall within ATF’s regulatory jurisdiction.”
- “The Final Rule also violates the First Amendment. The Final Rule’s requirement that submissions to the ATF for classification determination must include the submitting party’s marketing materials unlawfully regulates speech protected by the First Amendment. The Final Rule will have the unconstitutional result that two identical pieces of metal could be treated differently depending on whether they are associated with…instructions, jigs, tools, or some unknown combination, chilling First Amendment speech used to guide lawful activity recognized by the Final Rule itself.”
- “Subsequent to adopting the Final Rule, the ATF issued an Open Letter that specifically targets Polymer80. The Open letter states that certain Polymer80’s (sic) partially complete, disassembled, or nonfunctional pistol frames are ‘firearm[s]’ under the Gun Control Act and the Final Rule even when not sold as part of a parts kit.”
- “The Open Letter further rewrites federal law by expanding the definitions of ‘frame’ and ‘receiver’ so that ATF may regulate partial frames or receivers even when not sold as part of a parts kit. The Open Letter effectively amended the Final Rule by using a definition of ‘readily’ that is facially contradictory to the Final Rule, making it a legislative rule with the force of law. It was subject to but did not undergo the required notice-and-comment procedures.”
- “The Open Letter represents a stark, unsupportable reversal of the ATF’s previous determinations that Polymer80 pistol frame or receiver blanks are not ‘firearm[s]’ under the meaning of the Gun Control Act…The Open Letter singles out Polymer80 and creates rules of play for Polymer80 that are materially different from other marketplace participants.”
- “Also, on December 27, 2022, the ATF sent, unprompted by Polymer80, a letter directly to Polymer80…The Polymer80 Letter reinforced the Open Letter but tailored its ‘evaluation’ to only Polymer80’s products and was sent only to Polymer80. The Polymer80 Letter classified several of Polymer80’s receiver blanks as a ‘frame’ and also a ‘firearm,’ as defined by the GCA…and implementing regulations.”
Polymer80’s Main Charge and Request
The suit concludes by saying that the Final Rule, the Open letter, and the Polymer80 Letter are unconstitutional regulations designed to drive them out of business. It’s tough to see it any other way, though the ATF’s lawyers will certainly try to convince the court otherwise.
Polymer80 asks the court for a preliminary and permanent injunction to prevent the ATF from enforcing the Final Rule and the Open Letter and to declare both unconstitutional. They also ask for attorney’s fees, court costs, and “such other relief as the Court deems equitable and just.”
A Legal Assault on the Justice Department and ATF
The Polymer80 suit is but the latest in a series of legal actions taken against US Attorney General Merrick Garland, the Justice Department, the ATF, and Director Steve Dettelbach. If there was any question about whether Dettelbach, when he was confirmed last summer, would do Biden’s political bidding, that question has been emphatically answered. ATF has become the instrument of Biden’s executive assault on the Second Amendment through its Final Rule of Frames and Receivers, the Open Letter, and the anticipated Final Rule on Pistol Braces.
But the legal pushback has been strong. The Vanderstok v. Garland challenge to the Final Rule is ongoing. That case originated the First Amendment charge that Polymer80 is also pursuing. It was that charge which likely prompted the ill-considered Open Letter and the Polymer80 letter. Those rash actions may haunt the ATF moving forward.
The recently decided Cargill v. Garland case will put further pressure on ATF, since the 5th Circuit Court of Appeals declared the Final Rule on Bump Stocks unconstitutional for reasons similar to those put forth in Vanderstok and Polymer80, namely that ATF is unlawfully making rules that carry the weight of federal law, and then claiming the authority to enforce those same rules.
Cargill will certainly be appealed. But ATF suddenly finds itself playing defense against a well-coordinated legal assault. These lawsuits, and perhaps others, may well serve to curtail out-of-control executive agencies across the board. The Supreme Court’s West Virginia v. EPA and Bruen Decisions will also probably play a role.
Big things are happening with the Second Amendment right now. 2022 was a banner year for gun rights. 2023 is shaping up to be that way too. Stay tuned.
