Published in Litigation, Volume 50, Number 2, Winter 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
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“Happiness Is
a Warm Gun”
MICHAEL D. FAUCETTE AND BOYD GARRIOTT
Michael D. Faucette is a partner and Boyd Garriott is an associate at Wiley Rein LLP, Washington, D.C.
As a firearms regulatory agency,
the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) oc-
cupies a strange place. On the one
hand, the ATF’s own press releases
routinely highlight the agency’s role in
prosecuting individuals accused of vio-
lating federal firearms laws. On the other
hand, the ATF also promulgates regulations
subject to the requirements of the Administrative
Procedure Act (APA)—seemingly like any other civil reg-
ulatory authority. But the ATF is not like any other agency. The
agency’s dual role as law enforcer and technocratic regulator ren-
ders its actions uniquely vulnerable to APA challenges. Despite
these unique vulnerabilities, however, the ATF has historically
seen very few APA challenges—though the winds may be shifting.
ATF as Law En for cer an d Ci vi l R egu lat or
The ATF’s dual role as a criminal law enforcer and civil regula-
tor means that its “regulations” are in effect criminal laws, the
violation of which may constitute a felony. Consider, for example,
the ATF’s recent rule amending its interpretation of the phrase
“frame or receiver” as used in the National Firearms Act and the
Gun Control Act definitions of “firearm.” 87 Fed. Reg. 24,652
(Apr. 26, 2022). Those firearm defi-
nitions determine whether a gun is
subject to pervasive federal regula-
tory requirements. And while the
agency previously defined “frame or
receiver” as a single functional item
that provided housing for mechanical
elements of the firearm, its new interpre-
tation added parts kits and partially com-
plete frames and receivers. Thus, while couched
as a technical regulatory measure, the ATF’s new rule
means that unregistered possession of certain gun parts may now
carry a decade behind bars.
The criminal nature of the ATF’s regulations affects how
courts review the legality of the ATF’s interpretations of fire-
arms statutes. The normal rule is for courts to give agencies the
benefit of the doubt when they interpret statutes. In Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), the Supreme Court explained that courts should normally
defer to an agency’s interpretation of ambiguous statutory lan-
guage. The Court grounded its deference principle in the relative
expertise of agencies compared with courts when “implement-
ing policy decisions in a technical and complex arena.” But this
deference principle does not apply to the ATF’s interpretations
of criminal statutes.
Illustration by Dan Sipple
