PHOENIX — Attorney General Mark Brnovich is joining a lawsuit to bar the Bureau of Alcohol, Tobacco and Firearms from cracking down on what the agency considers “ghost guns.”
In legal papers filed Wednesday, Brnovich joined with challengers to argue that new rules, set to go into effect next month, violate not only the agency’s authority but exceed the ability of ATF to regulate interstate commerce.
More to the point, the lawsuit argues, the Biden administration is trying to do what it cannot get Congress to enact.
“The final rule unconstitutionally subverts Congress’ authority, exercising quintessentially legislative powers in a manner that could never pass either (let alone both) houses of Congress today, which is precisely why defendants have no intent whatsoever to ask for legislative authorization to take such unprecedented actions,” the lawsuit states. “Yet under our Constitution, the president (much less unelected and unaccountable bureaucrats within the executive branch) is not a king who can exercise this sort of unbridled power unilaterally.”
And the lawsuit is an attempt by the administration to “broadly rewrite federal gun-control laws to suit a radically anti-gun political agenda.”
The lawsuit was originally filed earlier this month in North Dakota by a licensed firearms dealer, Gun Owners of America and Eliezer Jimenez, a member of that group who makes his own firearms from parts he acquires.
Now Brnovich said he is joining to keep ATF from regulating unfinished, non-functional parts of guns as if they were complete firearms.
In a press release, his office said that “threatens the American tradition of private firearms manufacturing that predates the Revolution.” And a press aide for Brnovich, a Republican running for U.S. Senate, said using state resources to join the lawsuit is justified because her boss “has a right to protect Arizona from overreach of the federal government.”
There was no immediate comment from ATF, which has yet to file a formal response to the original lawsuit.
The ATF rule has its roots in plans announced by the Biden in April to rein in the proliferation of “ghost guns,” defined by the administration as “unserialized, privately made firearms that law enforcement are increasing recovering a crime scenes across the country.” And last year, the administration said, law enforcement recovered about 20,000 suspected ghost guns in criminal investigations, a tenfold increase from 2016.
“Because ghost guns lack the serial numbers marked on other firearms, law enforcement has an exceedingly difficult time tracing a ghost gun found a crime scene back to an individual purchaser,” the White House said in a release.
What ATF has proposed specifically would ban what the administration refers to as “buy build shoot” kits that individuals can purchase online or at a store without a background check with contents that can be readily assembled into a working firearm in as little as 20 minutes with equipment they have at home.
Linked to that is a new definition the agency is proposing for a “privately made firearm,” something challengers say is a term that does not exist — and has never existed — in federal law.
“That is because there is no federal prohibition on non-prohibited individuals who, like plaintiff Jimenez, privately manufacture firearms for their own personal use,” the lawsuit states. Nor is there a bar on selling those weapons or requiring they be marked with a serial number, recorded in the books of any dealer, or obtained only after a background check.
Beyond that, the complaint says the change will force some companies to halt sales, meaning they will lay off workers. And that in turn, will increase unemployment, increasing the public benefits that would be paid to these individuals while diminishing sales and income tax revenues.
But that’s just a part of it.
“The final rule will make it exceedingly harder (if not impossible) for the citizens of the plaintiff states to manufacture their own firearms,” the lawsuit states. And that would mean preempting states with “more permissive laws” that are beyond the reach of the federal government.
And the plaintiffs say that the rule infringes on “the lawful acquisition of protected ‘arms’ within the states, the keeping and bearing of which contributes to ‘the security of a free state,’ including the plaintiff states.”
Much of the lawsuit is highly technical, going to the definition of what constitutes a “frame or receiver” of a firearm, which can be regulated. The lawsuit says what ATF wants to do is expand that so that includes multiple parts of a firearm.
And there is also language that regulates anything that may “readily be converted” to expel a projectile, a term that challengers say is so vague it “guarantees future arbitrary and capricious enforcement by ATF.”
All of that goes to the ATF aim of regulating kits that contain the elements of a firearm, items that currently do not need to be sold by a federal firearms dealer.
In filing the lawsuit, the challengers say it is legally irrelevant that the lack of serial numbers makes it more difficult for ATF to track firearms for law enforcement.
“Rather, only Congress may change the statute to respond to an agency’s perceived need for new or additional authorities that bureaucrats believe they ‘must’ have,” the lawsuit says.
The lawsuit separately challenges another provision in the rule that would alter the current law which says federal firearms dealers must maintain records for at least 20 years, after which they can be destroyed.
The rule requires not only permanent retention but that they be transferred to AFT if the dealer goes out of business, creating what the challengers say is an illegal national gun registry.
The plaintiffs are most immediately asking Judge Peter Welte to issue a preliminary injunction blocking the agency from implementing the rule as scheduled on Aug. 24. But no date has been set for a hearing.