Perhaps someone with a better knowledge of the ATF’s statutory authority can answer this, but could that agency be challenged on the same basis that the EPA was challenged in the courts (and lost) about their authority to invent regulations?
I think the EPA ruling may apply here.
1) The NFA '34 exists, in violation of the Constitution.
2) The GCA '68 exists, in violation of the Constitution.
3) The Hughes Amendment '86 exists, in violation of the Constitution.
4) The BATFE has an "F" and an "E" in its name, in violation of the Constitution.
Yes, the EPA lost because it’s claim of power was beyond what Congress authorized. But the other alphabet agencies will pay no attention to it and the battles will have to be fought one agency at a time.
It very well could.
Before Ghost Guns became a 'thing,' the ATF ruled that the lower receiver of the AR rifle would be the "firearm" and be the serialized part.
There have been at least two court cases that I know of where the court threw out an indictment for having an unserialized AR lower because the law requiring serial numbers was unconstitutional vague.
Here's one such case: U.S. v. Jimenez
The parties' motion to dismiss briefing focused primarily on the issue of whether the meaning of "receiver" was unconstitutionally vague as applied to Jimenez. Defendant contends that nothing in the statutes or CFR gave him fair notice that possessing the lower receiver of an AR-15 rifle would count as the criminal possession of "the receiver." As a corollary, he argues that the lack of clear standards allows the ATF to engage in arbitrary enforcement practices.
So the ATF rulemaking was designed to eliminate the 'vague and arbitrary' definition of a receiver.
These regulations are even more egregious. The EPA used an ambiguous section of the Clean Air Act to claim the power to enact a huge regulatory scheme.
The ATF's new regs simply dispense with the statutory definition of a firearm and substitute their own definition. Even without the Bruen or EPA decisions they had a good chance of being tossed: if it's not a firearm under the statutory definition (like a jig), they simply have no legal authority to regulate it.
It's like saying because a milling machine can be used to make a receiver, all milling machine sales must go through an FFL.
While it is likely true that the ATF has gone beyond its authority, pursuant to the recent ruling in West Virginia v. EPA, that is probably beside the point. The simple fact is that even if Congress had passed a law with the exact same verbiage, it would likely be unconstitutional. The Bruen case stated that any act protected under the second amendment was to be presumed legal, and it was up to any law making authority who wished to challenge that position to affirmatively prove that such a law or regulations existed at or near the time of the founding of the country and the ratification of the 2nd Amendment. There were absolutely no laws or regulations in any of the 13 colonies or original states which prohibited the manufacture or assembly of firearms by private citizens for their own use. In fact, there were no such laws or regulations concerning the *sale* of such firearms to other people (thus the FFL rules should be voided…and I expect a challenge to the ‘68 GCA before long). All such laws and regulations are thus unconstitutional. The fact that the ATF decided to weigh in with regulations that exceed its authority is just icing on the cake.
Wasn’t the ATF invented over the need to control alcohol after the Volstad act? I don’t know why Tobacco is in there at all, and Firearms? aren’t they mentioned in the BORights? Free Enterprise means that if you can build it, you can keep it, or it used to. So if you invent a better weapon, you can keep it for yourself, or sell it to others for a profit.
BREAK UP THE FEDERAL LEVIATHAN. Tear it down to its very basics, those duties directly given to it by the Constitution, and NO MORE.