Several conservative Supreme Court justices appeared skeptical of a challenge to a Biden administration rule requiring untraceable “ghost guns” to be regulated like regular firearms during oral arguments on Tuesday.
Plaintiffs in the case, known as Garland vs. VanDerStok, hope to overturn a 2022 regulation from the Bureau of Alcohol, Tobacco, Firearms and Explosives targeting ghost guns. These guns can be assembled at home from kits with minimal tooling — but under the new ATF rule, they need to meet the same background check and record-keeping requirements as guns bought from a store.
“If the Court now says that one undrilled hole is enough to prevent regulation, it is going to be a sea change,” Solicitor General Elizabeth Prelogar said, in her arguments backing the ATF rule. “Going forward, all guns could become ghost guns.”
The number of ghost guns recovered at crime scenes spiked by more than 1,000% over the five-year period from 2017 to 2021, to 19,000, prompting the new rule. Though ghost guns are identical in form and function to normal firearms, people could freely buy home-assembled ghost gun kits online — raising concerns among law enforcement that they allowed both prohibited persons and minors to skirt existing gun regulations.
The 2022 ATF rule did not ban ghost guns, though some states have more tightly restricted them. Instead, the ATF required sellers and manufacturers to follow the same serialization and background check rules first mandated by the Gun Control Act of 1968.
The rule also altered the definitions for the parts of a gun that house its firing mechanism, called the frame (for pistols) or the receiver (for long guns). The ATF regulates those parts as if they were the gun itself.
Some companies were selling incomplete frames and receivers as if they were unregulated parts because they needed a small amount of tooling to work. But these kits usually required the buyer only to drill a few holes or remove small bits of plastic to make them operate, and often included jigs to make the process easy for anyone capable of operating basic household tools.
The case does not raise Second Amendment issues. It turns on narrow questions of definitions and separation of powers.
The plaintiffs — a pair of Texans who aspired to buy home-assembled weapons kits, plus several companies that produce the kits — accuse the ATF of stepping outside the agency’s legal authority by reclassifying mostly-complete, readily convertible weapons kits and receivers as traditional firearms.
The debate focused largely on the question of whether the ATF had the authority to redefine the terms “frame” and “receiver.” The government argued that the agency has a long history of interpreting near-complete firearms as if they were complete to avoid letting would-be buyers circumvent the law, while the plaintiffs contended that only Congress could change the definition so substantially.
Pete Patterson, the attorney for the plaintiffs, insisted the ATF rule would have sweeping unintended consequences that could open up law-abiding gun owners to prosecution. A receiver for an AR-15 can be converted into a machine gun by drilling a hole in it, he noted, while a traditional rifle can be converted to a much more heavily regulated short-barreled rifle “in minutes with a hacksaw.”
“It could wreak havoc with the firearms laws,” Patterson said.
The government dismissed those complaints, arguing that the ATF does not view completed, functional frames or receivers, including those installed in working firearms, as “readily convertible” to something else.
“ATF is not trying to hide the ball here,” Prelogar said. “There was a very serious public safety threat.”
For the ghost gun rule to survive, the government would likely need at least two conservative justices to vote to uphold it.
The Court’s three liberal judges — Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan — have routinely ruled in favor of gun restrictions in recent cases.
Chief Justice John Roberts appeared skeptical when Patterson said that the target market for home-assembled gun kits is tinkerers who enjoy the building process, like someone who spends their weekends restoring old cars.
“Drilling a hole or two doesn’t give the same sort of reward that you would get from working on your car on the weekend,” Roberts said.
Patterson objected, citing a news report that described how an incompetent buyer struggled to put a weapons kit together and eventually asked a gunsmith to do it instead.
“It’s clearly not a trivial process to do this,” Patterson said, noting that guns also have “small parts.”
Roberts did not seem convinced.
“If someone goes through the process of drilling a few holes and taking the plastic out, he wouldn’t think he had built the gun, would he?” Roberts asked.
Pattern said that yes, the guy with the drill would have “built” the gun.
Justice Samuel Alito raised a similar objection, describing a hypothetical case in which someone restoring an old car might remove the engine. If a neighbor asked that person what they were working on, they might call it a 1957 Thunderbird, even though it can’t be driven, Alito said.
The tedious debate over hypothetical analogies of what constitutes a finished thing as opposed to a “readily convertible” thing resurfaced frequently.
Alito asked whether having a notepad and a pen constituted a grocery list. Prelogar countered that a pen and paper can be used for lots of things, but an almost-finished frame or receiver can only become a finished frame or receiver.
Would eggs, chopped ham and pepper, Alito wondered, count as a western omelet? Prelogar gave the same response. Justice Amy Coney Barrett asked if the answer to that question would change if the ingredients came from a premade “omelet kit” from HelloFresh.
If the ATF insisted on trying to set a standard for a complete frame or receiver based on language passed by Congress, Patterson said, it could use the “critical machining test” the agency had used in some cases in the past. Under that standard, partially completed frames and receivers would still escape regulation as long as the buyer had to drill at least one hole. That, he said, would prevent AR-15s from being regulated as “readily convertible” to machine guns.
Barrett was apparently unconvinced, noting that Patterson’s “machining test” doesn’t actually appear in existing law. “It seems a little made-up, right?”
A vast market serves gun enthusiasts who customize their own firearms.
But Prelogar noted that no major firearms producers had joined the lawsuit as plaintiffs because they continued to follow existing laws regulating firearms, frames and receivers. (The National Shooting Sports Foundation, the trade group for the firearms industry, filed an amicus brief arguing for the rule to be overturned, though it is not an official party to the case.)
“The market for ghost guns essentially collapsed after this rule went into effect,” Prelogar told the Court. “It shows what we knew all along, which is: The reason why you want a ghost gun is because it can’t be traced.”