This Supreme Court Is Woefully Weak On The Second Amendment

The Supreme Court just issued a decision allowing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to rewrite the nation’s gun laws. It appears that the seven justices have contracted a bad case of “Gun Derangement Syndrome,” or GDS — a serious infection that afflicts many on the federal bench.

The symptoms are this: when firearms are involved, the judicial rulebook goes out the window. Originalism is ignored, basic principles of statutory interpretation overlooked, and new rules of law invented. What’s left is nothing that passes for reasoned decision-making; it’s the implementation of judges’ personal policy predilections.

Until recently, the Supreme Court seemed immune to this illness. After nearly all federal circuits mused that the Second Amendment did not so much as protect an individual right to bear arms, District of Columbia v. Heller set the record straight. And after lower courts devised “judge-empowering interest-balancing tests” to circumvent Heller, The New York State Bar Association v. Bruen course-corrected.

But recently, cracks have begun to show. Chief Justice John Roberts’ opinion in United States v. Rahimi, for example, arguably waters down Bruen’s rigorous requirement that governments must justify firearms laws with historical analogues — directing courts merely to follow the “principles that underpin the Nation’s regulatory tradition,” whatever that means. So wishy-washy was the Rahimi opinion that Justice Neil Gorsuch wrote a concurrence to remind everyone that Bruen is still good law.

Bondi v. VanDerStok Decision

But now, Gorsuch seems to have contracted GDS as well. Authoring the court’s Bondi v. VanDerStok decision, he (and six others) sanctified ATF’s decision to redefine unfinished firearm frames and receivers and so-called “weapons parts kits” as actual “firearms” under federal law. That way, unfinished blocks of plastic and metal are subject to all the paperwork, tracking, and de facto registration that applies to actual firearms.

VanDerStok upholds a Biden-era diktat outlawing the longstanding American tradition of personal gunmaking, succumbing to the left’s hysteria over privately made firearms, and slapping these DIY projects with the pejorative label “ghost gun.” But why?

Recently, Ninth Circuit Judge Lawrence VanDyke issued a blistering dissent in Duncan v. Bonta, which upheld California’s ban on standard-capacity magazines, complete with a viral YouTube video. In that case, Judge VanDyke brilliantly exposed the source of the judiciary’s GDS. He explained that most judges refuse to protect the right to keep and bear arms as they would the right to free speech because they value speech but misunderstand and fear guns. Accordingly, judges with GDS default to emotion-ridden rants about the dangers of guns, ignoring their basic responsibility to simply “say what the law is”:

my colleagues … have no problem protecting speech — even worthless, obnoxious, and hateful speech — because they like and value speech …  On the other hand, as clearly demonstrated by this case, most of my colleagues see “limited lawful” value in most things firearm-related.

So was it in VanDerStok. Rather than acknowledge and respect the creativity and craftsmanship of countless law-abiding Americans, the justices saw little value in the historic right to make one’s own firearm.

Below are three of the most telltale symptoms of GDS. Unfortunately, the VanDerStok majority tests positive for each.

Symptom 1: Trigger the Emotions

There is often a dead giveaway when a court has contracted GDS. Instead of reciting the issues to be decided, or the text of the law to be interpreted, a judge afflicted by GDS begins with an emotional story — designed to lead the reader to sacrifice reason and vilify gun owners. 

Gorsuch’s VanDerStok opinion starts off this way: “Shortly after the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. stunned the Nation, Congress adopted the Gun Control Act of 1968 (GCA)….  Existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily.”

The implication is clear. If you don’t support regulating homemade firearms into oblivion, then you must favor the “explosion of crime involving these ghost guns.” And anyone who supports the right to buy unfinished firearm parts must favor “allow[ing] criminals to acquire largely untraceable guns.”

Symptom 2: Rewrite the Rules

Another symptom of GDS is rapid-onset creativity. Indeed, gun cases churn out some of the most inventive rules — and even brand-new insight into the English language. Gorsuch’s VanDerStok opinion is a prime example.

On its face, the Gun Control Act’s definition of “firearm” requires that an object first be a “weapon.” But no one would call a block of plastic or a bag of parts a “weapon.” Likewise, the statute requires that every firearm must have a “frame or receiver.” Precursor items that “may become” an actual frame or receiver do not count.

That simple analysis should have ended the inquiry — but it didn’t. So, how did Gorsuch bypass these simple definitions? Instead of looking to the plain meaning and intent of the drafters, Gorsuch turned to left-wing “linguists,” asserting that the Gun Control Act uses so-called “artifact nouns” — “a word for a thing created by humans,” he claimed.

But the term “artifact nouns” is made-up. In a customarily brilliant dissent, Justice Clarence Thomas excoriated the majority’s “reasoning,” which “substitutes novel linguistic labels … from an amicus brief and an academic paper … for traditional statutory interpretation.” Whereas the majority invoked “artifact nouns” based on “colloquial usage,” Thomas explained that, when interpreting statutes, judges are to presume that Congress did not “draft its laws with the informality of casual conversation.”

Symptom 3: Ignore the Existing Rules

The third telltale GDS symptom is a form of amnesia, where judges experience a sudden forgetfulness of traditional legal principles. This amnesia resolves the moment the subject matter returns to something the judge prefers.

Take VanDerStok, for example. Historically, Gorsuch has been an advocate of dismantling the administrative state, decrying “arbitrary power” in a concurrence against vague laws. Later, he joined a majority of the court to overrule “Chevron deference,” which had allowed unelected federal bureaucrats to run amok.

But in VanDerStok, it seems that Gorsuch forgot his usual concerns with big government.  Indeed, rather than working to weaken the administrative state, VanDerStok empowered it.

In VanDerStok, the court claimed the plaintiffs had brought what is known as a “facial challenge” to ATF’s rule — i.e., that the rule is unlawful in all situations. This, as opposed to an “as-applied challenge” — i.e., challenging the rule as applied to a particular situation. But as Justices Thomas and Samuel Alito pointed out in dissenting opinions, no one — neither the parties nor the Fifth Circuit — ever thought there was any “facial” versus an “as-applied” distinction to be made.

And for good reason. Under the Administrative Procedure Act (APA), agencies must act within their “statutory … authority” and “in accordance with law.” Offending rules are to be “set aside.” The APA says nothing about rules that are unlawful in some situations but not others, and provides no remedy for a court to save part of a rule while striking other parts. Again, unlawful rules are “set aside.”

Not content with that result, Gorsuch moves the goalposts, claiming that APA plaintiffs can succeed only if they show that an agency rule is unlawful in every situation.

In dissent, Thomas excoriates that judicial rewrite. Under the majority’s new rule, he explains, “it is difficult to understand how an agency would ever promulgate an invalid definition,” and an agency could simply “expand[] its regulatory definition” without limit, “[s]o long as it imports” part of what “Congress laid out in the statute.” In other words, agency actions that are just “somewhat in accordance with law” would be immune from judicial review, aside from piecemeal “as-applied” challenges.

But as Thomas notes, the court’s amnesia quickly fades, declaring that its new framework applies “for this case only.” Funny how that works — radical new rules apply only to guns. Recall that it was Gorsuch who concurred in Rahimi, promising that the court would return to its senses in subsequent cases.

Do as we say, not as we do — that’s the recent message from the Supreme Court.

VanDerStok represents an unfortunate flareup of Gun Derangement Syndrome in this nation’s court of last resort. For the sake of all who value their Second Amendment rights, we hope the court soon discovers a cure.

Erich Pratt is the senior vice president of Gun Owners of America, a national grassroots organization representing more than 2 million gun owners. He can be seen regularly on Newsmax and Fox News.