FPC Continues Fight in Anti-Rights Lawsuit Seeking to Force ATF to Expand Definition of “Firearm” to Include So-Called “80%” Objects

Gun News

NEW YORK (February 5, 2021) — Today, Firearms Policy Coalition (FPC) announced the filing of an important brief to defend constitutional and statutory rights in a federal lawsuit brought by anti-Second Amendment cities and organizations that seeks to force the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to redefine the term “firearm” to include non-firearm objects, including so-called “80%” objects. The brief can be viewed at FPCLegal.org.

Previously, FPC moved to intervene in the matter as of right and by the Court’s permission. The trial court subsequently denied the motion, which was promptly appealed to the Second Circuit. In the meantime, the trial court invited FPC to file a ‘friend of the court’ brief in the matter pending the outcome of FPC’s appeal.

FPC’s brief first argues that the plaintiffs failed to support their claim that they were injured by the ATF’s determination—that non-firearm objects are not “firearms” for the purposes of federal law—because criminals purportedly prefer firearms manufactured from non-firearm objects to commit crime. Additionally, the brief argues that plaintiff Everytown for Gun Safety lacks standing because it cannot point to any injury that it sustained nor is it even the type of organization that can purport to represent the “public benefit.” 

Moreover, the brief asserts that the ATF rulings and FAQs the plaintiffs attempt to rely on to support their effort to force a review of the ATF’s actions are not a final agency action under the Administrative Procedures Act (APA)—which places it outside the scope of the court’s review. Lastly, the brief argues that the ATF’s application of the definition of “firearm” to not include non-firearm objects is not arbitrary, capricious, or otherwise not in accordance with law and thus, under the APA’s scope of review, neither the plaintiffs nor the Court can substitute their judgment for that of the ATF.

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“We are pleased to represent the People and their rights in this important brief while we appeal the court’s denial of our motion to intervene,” said attorney Adam Kraut, FPC’s Director of Legal Strategy. “Our brief provides the Court with a variety of arguments and information to show that the plaintiffs in this case lack the legal right to bring it. Furthermore, the law on these issues is clear, the plaintiffs are wrong, and their meritless case should end here. FPC will continue to fight and defend liberty in this and other cases across the United States.”

The lawsuit was filed in August of 2020 by the cities of Syracuse (NY), San Jose (CA), Chicago (IL), Columbia (SC), as well as Everytown for Gun Safety Action Fund and Everytown for Gun Safety Support Fund against the ATF, Acting ATF Director Regina Lombardo, the Department of Justice (DOJ), and then-Attorney General William Barr, now Acting Attorney General Monty Wilkinson.

Firearms Policy Coalition and its FPC Law team are the nation’s next-generation advocates leading the Second Amendment litigation and research space, having recently filed two United States Supreme Court petitions for certiorari (review) (Folajtar v. Attorney General and Holloway v. Attorney General) and several major federal Second Amendment lawsuits, including challenges to the State of Maryland’s ban on “assault weapons” (Bianchi v. Frosh), the State of Pennsylvania’s and Allegheny County’s carry restrictions (Cowey v. Mullen), Philadelphia’s Gun Permit Unit policies and practices (Fetsurka v. Outlaw), Pennsylvania’s ban on carry by adults under 21 years of age (Lara v. Evanchick), California’s Handgun Ban and “Roster” laws (Renna v. Becerra), Maryland’s carry ban (Call v. Jones), New Jersey’s carry ban (Bennett v. Davis), New York City’s carry ban (Greco v. New York City), the federal ban on the sale of handguns and handgun ammunition by federal firearm licensees (FFLs) to adults under 21 years of age (Reese v. BATFE), and others, with many more cases being prepared today. To follow these and other legal cases FPC is actively working on, visit the Legal Action section of FPC’s website or follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org) is a 501(c)4 nonprofit organization. FPC’s mission is to protect and defend constitutional rights—especially the right to keep and bear arms—advance individual liberty, and restore freedom through litigation and legal action, legislative and regulatory action, education, outreach, grassroots activism, other programs. FPC Law is the nation’s largest public interest legal team focused on Second Amendment and adjacent fundamental rights including freedom of speech and due process, conducting litigation, research, scholarly publications, and amicus briefing, among other efforts.

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