5th Circuit Panel Unanimously Finds ATF’s 80 Percent Firearm Frame Rule ‘Unlawful’

A three-judge panel for the United States Court of Appeals for the Fifth Circuit decided on Thursday against the ATF’s 80 percent frame rule, finding that the ATF overstepped its bounds in issuing it.

The 80 percent or partial frame rule is contained within ATF Final Rule 2021-05F, and makes clear the ATF’s position that partially completed pistol frames–commonly known as 80 percent frames–are “firearms.”

The ATF’s rule on frames took effect on August 24, 2022, and following public pushback, the ATF released a December 27, 2022, letter, reiterating that their rule does hold that “partially complete pistol frames” are “firearms.’ This opens the door for a background check requirement for certain gun parts and/or parts kits.

WATCH — AWR Hawkins: Universal Background Checks = Gun Registry

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All three judges on the Fifth Circuit panel decided against the ATF’s rule.

The three judges, Kurt D. Engelhardt, Andrew S. Oldham, and Don Willet, were all appointed by Donald Trump. The case made its way to them on appeal from the United States District Court for the Northern District of Texas.

The judges seized on the the ATF’s act redefining partial frames as firearms, noting that in so doing the ATF went beyond Congress.

Engelhardt wrote the court’s opinion and noted:

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. 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.

Oldham, concurring, pointed to what he saw as the ATF’s core blunder: “ATF’s foundational legal error is that it conflated two very different statutes: the Gun Control Act of 1968 and the National Firearms Act of 1934. Those two statutes give ATF very different powers to regulate very different types of weapons.”

He noted that the ATF chose the registration and tax requirement, pursuant to the National Firearms Act’s oversight of machine guns, and appealed to the Gun Control Act to apply it to non-machine guns.

The three judges decided “[T]he judgment of the district court is AFFIRMED to the extent it holds unlawful the two challenged portions of the Final Rule, and VACATED and REMANDED as to the remedy.”

“The Biden administration cannot do an end-run around Congress,” Breitbart News senior legal contributor Ken Klukowski said, praising the court’s decision.  “Judge Oldham’s concurring opinion highlights why the Biden administration cannot stitch together separate gun control laws to make a new law, and why federal law does not authorize a Frankenstein like ATF’s partial firearm rule.”

The case is VanDerStok v. Garland, No. 23-10718 in the United States Court of Appeals for the Fifth Circuit.

AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio and a Turning Point USA Ambassador. AWR Hawkins holds a PhD in Military History, with a focus on the Vietnam War (brown water navy), U.S. Navy since Inception, the Civil War, and Early Modern Europe. Follow him on Instagram: @awr_hawkins. You can sign up to get Down Range at breitbart.com/downrange. Reach him directly at awrhawkins@breitbart.com.