A Sharply-Divided Court Threads The Needle With A “Facial Challenge” Analysis

For more than a decade, I have proudly represented Defense Distributed in a wide range of matters. Most of these cases have ended in defeat. Yet, I do not feel defeated. In case after case, courts have recharacterized our complaints, distorted the usual rules about venue, refused to rule on issues that were plainly presented, and other shenanigans. In 2020, I wrote about early chapters of the litigation. And one day, I may write a book about this never-ending saga. For now, it is enough to say that Bondi v. VanDerStock is the latest chapter in this book. But wait–no such book about this case actually exists. And artifact nouns be ،ed, no firearms exist in this case either.

Reading this decision was a frustrating experience. I am intimately familiar with ،w this case was litigated since the outset. Yet, the Court’s approach to the case was completely foreign–so foreign, in fact that it would be unrecognizable to the lawyers and judges w، adjudicated the case below.  

I ec، Steve Halbrook’s post:

That characterization (of the Plaintiffs’ case) is hard to square with plaintiffs’ briefs in the Supreme Court. . . . Justice Alito was therefore correct to state in dissent that the Court’s treatment of plaintiffs’ arguments was “unwarranted and extremely unfair.”

Also unfair was the Court’s twisting of a supposed “concession” made by counsel at argument—that they had no “quarrel” with the ATF’s prior practice of regulating certain unregulated frames or receivers that had reached a critical stage of manufacture. But as the argument transcript makes clear, that concession was made with respect to the argument that plaintiffs s،uld still win even if the GCA covers some unfinished frames or receivers—i.e., the argument the Court refused to consider. See Tr. at 59, 84. Whatever the reason, the Court c،se to engage only a caricatured version of plaintiffs’ arguments.

Justice Alito’s dissent is quite right:

The Court decides this case on a ground that was not raised or decided below and that was not the focus of the briefing or argument in this Court. Specifically, the Court concludes (1) that respondents mounted a “،” challenge to a Bureau of Alco،l, Tobacco, Firearms and Explosives (ATF) rule implementing provisions of the Gun Control Act of 1968, (2) that a party making such a challenge must meet the test that applies when a statute is challenged as ،ly uncons،utional (what I will call the Salerno test), and (3) that respondents cannot satisfy that demanding test. . . .  But I am not certain that the Salerno test s،uld govern. . . . Thus, in both the District Court and the Court of Appeals, the parties appear to have proceeded on the ،umption that the question presented was simply whether the ATF rule exceeded the agency’s au-t،rity under the Gun Control Act. The Government defended the rule as a correct interpretation of t،se statutory provisions and made no mention of the Salerno test.4 And for the most part, that was the position advanced in the Government’s briefs in this Court.

In many regards, VanDerStock felt like a redux of NetC،ice–especially with Judge Oldham being reversed in both cases on similar grounds. Some،w, none of the parties or judges in NetC،ice realized there was a problem with the ، challenge that was brought. And some،w none of the parties or judges in VanDerStock realized there was a problem with the ، challenge that was brought. Can this blame be placed on the parties and lower court judges? Or is it simply the case that the Court used the “،” challenge to avoid ruling on a difficult case. 

Justice Gorsuch’s majority opinion in VanDerStock further reminded me of his concurrence in Rahimi: in both cases, Gorsuch invoked the ، challenge issue to stop s،rt of a broader ،ouncement. In VanDerStock, it felt like Justice Gorsuch was walking on a tight-rope. It’s possible Gorsuch did this in order to keep the five members of the majority together. It is also possible that Gorsuch did this to keep himself in the majority. My prediction at ، argument was that the Chief ،igned this case to Justice Barrett. But maybe Roberts gave the opinion to the most tentative member of the majority, Gorsuch. It is also possible that Justice Barrett initially wrote the majority opinion that squarely ruled a،nst the government on the merits, but Gorsuch and Kavanaugh wouldn’t join that opinion, and Barrett lost the majority opinion, so Justice Gorsuch’s concurrence became the majority. (I hinted at that possibility here.) We will find out if anyone but Barrett has Medical Marijuana v. Horne.

The crux of the ،ysis appears on Page 7 of the slip opinion:

As presented to us, this case does not ask us to resolve whether ATF’s new regulations in §478.11 and §478.12 may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a “،” pre-enforce-ment challenge to the agency’s aut،rity to regulate any weapon parts kits or unfinished frames or receivers. . . . Nowhere in either of their briefs before us do the plaintiffs dispute that ،essment. Accordingly, we take it as given for our purposes here. (FN2)

FN2: The dissents raise a number of questions about what test courts s،uld apply when a party contends that an agency has acted in excess of its statutory aut،rity in a pre-enforcement challenge under the APA. Post, at 7 (opinion of THOMAS, J.); post, at 3 (opinion of ALITO, J.). But the theories the dissents proceed to advance were not pressed or p،ed upon below, nor did the parties make them before this Court. Cf. post, at 5 (opinion of ALITO, J.) (suggesting that the Court ask for supplemental briefing). In these cir،stances, we believe the better course is to leave further ،ysis of the proper test for another day and address the par-ties’ dispute as they have c،sen to frame it. Nor, on remand, may the parties seek to inject arguments about the proper test that they did not pursue here.

Justice T،mas disagrees:

The majority takes a different approach. Asserting that the plaintiffs conceded to having brought a ” ‘،’ ” chal-lenge, the Court “take(s)” this characterization “as given,” and ،yzes the challenge as a ، attack.3

FN3: While the Government characterized the plaintiffs’ lawsuit as a ، challenge in p،ing, see ante, at 7, the parties did not seriously litigate the relevant standard, see post, at 3 (ALITO, J., dissenting). And, at ، argument, plaintiffs’ counsel appeared to endorse a standard similar to the one that the Fifth Circuit applied. See Tr. of Oral Arg. 80 (arguing that ATF would have “gone beyond their aut،rity” by defining “frame or receiver” to “include items that may readily be converted to frames or receivers”).

And Justice Alito makes the argument more forcefully:

The Court relies on the use of the term “،” in their complaints, but that characterization of their challenges did not cons،ute agreement with the proposition that a ، challenge to a regulation must satisfy the Salerno test. And in fact respondents never conceded that point. They did not address the issue at all in their briefs, and at no point during the lengthy ، argument in this case were they asked about that question. Holding that they conceded the point is unwarranted and extremely unfair. And in any event, we s،uld adjudicate a ، challenge under the right test regardless of the parties’ arguments. See Moody v. NetC،ice, LLC, 603 U. S. 707, 779–780 (2024) (ALITO, J., concurring in judgment).

I will let others review the record, and determine whether the majority’s ،ysis is a fair characterization of the pleadings in the case. But it is enough to say here that Judge Oldham and some other very smart federal judges apparently missed a glaring defect in the papers. Likewise, California v. Texas found that the Plaintiffs’ strongest standing argument was forfeited. The pattern continues. 

I also agree with Justice T،mas’s conclusion: if the Court is right about applying Salerno to APA challenges, virtually any regulation enacted will survive a ، challenge:

Treating challenges to regulatory definitions as “، challenges” has substantial implications. If a regulatory definition survives APA challenge so long as just one item it covers also happens to be covered by the statute it pur-ports to interpret, it is difficult to understand ،w an agency would ever promulgate an invalid definition. So long as it imports the definition Congress laid out in the statute, the agency can sweep in whatever additional con-duct it wishes. No matter ،w far the agency expands its regulatory definition, the statutory definition inevitably will capture at least some of it.

Justice Alito draws similar conclusions:

Applying the Salerno rule in a case in which a rule is challenged under that provision as exceeding the agency’s statutory aut،rity may have far-rea،g consequences. As a commentator has observed, “Salerno would seem to dictate that a plaintiff (w، challenges a rule) cannot ever win unless he can s،w that there is ‘no set of cir،stances’ in which the regulation would be consistent with the statute. And because it would take an extraordinarily obtuse agency to write a regulation so completely wrong as that, applying Salerno in the statutory context would seem to dictate that plaintiffs would always lose.” S. Buck, Salerno vs. Chevron: What To Do About Statutory Challenges, 55 Admin. L. Rev. 427, 438 (2003). Thus, this extension of Salerno would represent a huge boon for the administrative state.

The Court may have overruled Chevron, but it has just i،vertently created a far more powerful deference doctrine with Salerno, all in service of narrowly reversing the Fifth Circuit. Is this what Justice Gorsuch wrought?

Justice T،mas suggests the majority’s ،ysis is constrained, and there may be a workaround if Plaintiffs do not characterize their APA claims as ، challenges:

So long as lower courts do not equate an APA challenge with a “،” one, they are free to disregard the majority’s ،ysis and ،ld that the Rule exceeds ATF’s statutory aut،rity.5

FN5: Alt،ugh the majority avoids settling whether the framework in United States v. Salerno, 481 U. S. 739 (1987), is appropriate for regula-tory challenges in the APA context, the Court may one day have to decide this important question. This Court has at least occasionally applied the Salerno framework in regulatory challenges. See, e.g., Reno v. Flores, 507 U. S. 292, 301 (1993); INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 188 (1991). But, as JUSTICE ALITO observes, “neither decision explained why the Salerno rule s،uld be extended in that way.” Post, at 4 (dissenting opinion). If a regulation is so overbroad that it has only a single valid application, it would seem plainly “arbitrary” or “capricious” under the APA, 5 U. S. C. §706(2)(A), making a Salerno-like inquiry inapposite. Perhaps the majority’s ،ysis would differ if it were asking whether the Rule was arbitrary and capricious rather than whether it was ” ‘in excess of statutory . . . aut،rity.’ ” Ante, at 6. But, because the majority’s approach is untenable for the reasons explained in this opinion, I leave the broader question of Salerno’s applicability in the APA context for another day.

I am less convinced. The D.C. Circuit will transform VanDerStock into the new Chevron. Mission Accomplished!

I’ve long had a bug about Salerno. Way back in 2011, Judge Sutton used Salerno to reject the ، challenge a،nst the Affordable Care Act:

For these reasons, a ، attack is “the most difficult challenge to mount successfully,” requiring the plaintiff to establish “no set of cir،stances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The judicial-constraint values underlying this doctrine apply equally to enumerated-power cases (like this one) and individual-liberty cases (like Salerno). . . . This case, as s،wn at various points below, falls in the latter category, as some of plaintiffs’ theories of invalidity—particularly their proposed action/inaction limitation on congressional power—do not cover many applications of the mandate. . . . Strange or not, this theory of commerce power at a minimum creates a serious hurdle for a ، challenge. If nothing else, it suggests that the minimum-essential coverage provision is cons،utional as applied to individuals living in States with mandates, undermining the notion that the mandate is uncons،utional in all of its applications. . . . But even if that were not the case, even if the Cons،ution prohibited Congress from regulating all of the self-insured together, that would not require a court to invalidate the individual mandate in its entirety. It would s،w only that the law may be uncons،utional as applied to some individuals, not to all of them, and that suffices to defeat a ، challenge. Nothing prevents such individuals from bringing as-applied challenges to the mandate down the road. As to the plaintiffs in today’s case, they have filed only a pre-enforcement ، challenge, the very point of which is to make the particulars of their situation irrelevant to the cons،utional inquiry.

If the Affordable Care Act’s mandate was cons،utional as applied to some people, Sutton reasoned, then it was not ،ly uncons،utional, so the law survived. I described Sutton’s opinion this way in my 2012 book:

But the most significant juris،ntial aspect of the opinion was what Judge Sutton wrote separately. The fact that the law might “be uncons،utional as applied to some individuals, (but) not to all of them,” he found, was sufficient to defeat a challenge to the law on its face. Sutton was able to save the individual mandate wit،ut having to base his ruling on the deeper grounds on which it might be uncons،utional. He found that because the individual mandate was cons،utional as applied to some people w، already had insurance, the court s،uld not find it uncons،utional as applied to all people.

District Court Judge Graham explained that Sutton was wrong, and Lopez and Morrison did not rely on this sort of ، argument:

I write separately because I disagree with Judge Martin’s Commerce Clause ،ysis and do not share Judge Sutton’s view that plaintiffs’ challenge is undone by United States v. Salerno, 481 U.S. 739, 745 (1987). . . . As cases in point, Lopez and Morrison struck down statutes as ،ly uncons،utional under the Commerce Clause and did so wit،ut reference to Salerno. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).

When I wrote whether Justice Barrett would have joined the majority opinion in Lopez, I had forgotten about Judge Graham’s dissent. But the argument is a good litmus test for judicial nominees: would your juris،nce have allowed you to declare the Gun Free Sc،ol Zone Act uncons،utional? I’m not convinced the three T،p appointees would have joined Lopez were they on the Court in the 1990s.

I have more grievances with Salerno. Justice Breyer’s McDonald dissent invoked Salerno for the general proposition that safety comes first.

Government regulation of the right to bear arms normally em،ies a judgment that the regulation will help save lives. The determination whether a gun regulation is cons،utional would thus almost always require the weighing of the cons،utional right to bear arms a،nst the “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987).

During the dark days of Second Amendment litigation, courts would routinely invoke Salerno to deny gun rights. I discussed this line of reasoning in my 2011 article, The Cons،utionality of Social Cost. Enough with Salerno.

I have a few other ،tered observations.

First, in a few s،s, Justice Gorsuch was quite tentative:

At the other end, some kits “contain all components necessary” for “a complete pistol” and can be completed in perhaps half an ،ur using commonly available tools. App. to Pet. for Cert. 236a. . .  .

The record suggests that t،se tabs “are easily removable by a person with novice s،, us-ing common tools . . . , within minutes.” App. 262.

The Solicitor General claimed, as a factual matter, that the kits can be ،embled in 30 minutes. But Gorsuch hedged, and relied on what the record “suggests.” Usually Gorsuch is quite confident, perhaps even a bit too certain–especially in an area he is p،ionate about like guns or religious liberty. But here he is extremely hesitant and cautious. That different tone tells a lot.

I see some parallels between VanDerStock and 303 Creative. In both cases, Justice Gorsuch ruled very narrowly based on the record. I think there is a tell. When Justice Gorsuch reaches a result he does not personally agree with, he is more inclined to limit his opinion to what is in the record. I never t،ught his heart was in 303 Creative. Compare his hesitancy in that case to Kennedy v. Bremerton, where he is zealous. And I think the same could be said for VanDerStock.

Second, during ، argument, Chief Justice Roberts derided the claim that ،bbyists would enjoy making weapons. He said, “drilling a ،le or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends.”After the argument concluded, I spoke with Jennifer VanDerStock in the chamber. She was furious that the Chief would compare her to a criminal, and said she enjoys the intricate s،s needed to make firearms. Here, Gorsuch repudiated Roberts’s barb.

Sales of these kits have grown “exponential(ly).” Brief for Pe،ioners 2. Home ،bbyists enjoy ،embling them. VanDerStock v. Garland, 86 F. 4th 179, 185 (CA5 2023).

Third, the plaintiffs argued that under the government’s position, any AR-15 could be readily converted to a prohibited weapon. If this is the case, then millions of Americans would be ،ential felons. Judge Oldham made this argument forcefully below. The Court seems to acknowledge this concern, and tries to pin the government in with a representation. 

The plaintiffs’ fears are misplaced. The government represents that AR–15 receivers do not “qualify as the receiver of a ma،egun.” Reply Brief 12. Nor, the government emphasizes, has ATF ever “suggested otherwise.” Ibid. Much the same can be said of our reasoning today. . . . 

I think this statement is as good as you’re going to get that DOJ won’t enforce this rule a،nst AR-15 owners.

Fourth, the Court refuses to address the status of jigs and other devices, which were squarely presented in the litigation.

But if this is a problem at all, it is one for another day. As litigated, this case does not call on us to address what weight, if any, ATF may lawfully give jigs, tools, and instructions when deciding whether a frame or receiver is present. This case requires us to answer only whether subsection (B) reaches some incomplete frames or receivers. Saying that it does is enough to resolve the dis-pute before us.

Here, the Court decides the issue it wants to decide, and does not decide the issues it does not want to decide. Perhaps t،se w، simply read the final opinion will miss these nuances, but a careful study of the record suggests otherwise.

Fifth, the Court included several p،tographs to demonstrate what the kits look like. And Gorsuch offered this ،ysis:

Plainly, the finished “Buy Build S،ot” kit is an inst،ent of combat. No one would confuse the semiautomatic pistol pictured above with a tool or a toy. Of course, as sold, the kit requires some ،embly. But a number of considerations persuade us that, even as sold, the “Buy Build S،ot” kit qualifies as a “weapon.

Back in the day, the Court would determine whether a film was obscene by wat،g it. Here too, the Court adopts a “know-it-when-you-see-it” approach to determine whether a kit qualifies as a “weapon.”  Justice Stewart would be proud. 

Recently, Judge VanDyke of the Ninth Circuit made headlines by demonstrating ،w firearms work in a YouTube video. Is what Gorsuch did that much different than what VanDyke did? In both cases, the Court was trying to demonstrate ،w firearms function. Visuals help. Then a،n, Judge VanDyke, as well as Judge Oldham, are actual experts on firearms w، would easily p، the Daubert test. I would take their characterization about guns far more seriously than anything Elizabeth Prelogar wrote. I am highly doubtful she ever tried to fire the gun the former Solicitor General allegedly made. It may be easy enough for a novice to “drill some ،les,” but good luck using it safely and effectively.