Supreme Court majority may embrace ATF's ghost gun rule

The conservative Supreme Court, largely hostile to gun regulations in recent years, seemed tentatively supportive of the Biden administration’s effort to curb “ghost guns.”

These build-it-yourself gun kits can be bought online and anonymously, without a background check. The guns from these kits have also have no serial numbers, meaning they cannot be traced. In 2022, as the number of ghost guns found at crime scenes was growing exponentially, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a new rule classifying the kits as firearms under the 1968 Gun Control Act. The statute defines a firearm as any weapon that is “designed to or may readily be converted into” a functional firearm. The kit manufacturers and sellers challenged the rule in court, asserting that the ATF had exceeded its authority. The conservative Fifth Circuit Court of Appeals struck the rule down.

The Biden administration appealed to the Supreme Court, and last year the court voted 5-to-4 to leave the regulation in place while it reviewed the case. On Tuesday a majority of the justices seemed to think the gun-kit sellers were on pretty shaky ground.

'A sea change' in the law

Arguing in support of the regulation, Solicitor General Elizabeth Prelogar said that if the manufacturers and sellers of these kits prevail, it would work “a sea change” in the nation’s firearm laws. Under the kit sellers argument, “if a firearm isn't a 100% functional, if its missing just one hole that could be drilled in seconds and immediately assembled into a working gun, that product can be sold to anyone online with no background check, no records, and no serial number,” said Prelogar.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh all expressed some skepticism about that argument. The four were the likely dissenters when the court allowed the ghost gun regulation to remain in effect.

Alito focused on the definition of a weapon, and when it is considered just a part. Holding up a yellow legal pad and a pen, he asked: “Is this a grocery list?” Solicitor General Prelogar replied that it was not, since “there are a lot of other things you could use [the pad for] for to create something other than a grocery list.”

Justice Amy Coney Barrett chimed in, asking Prelogar if her answer would change if she were to order a kit to make turkey chili from HelloFresh with “all of the ingredients in the kit.” Prelogar saw this as “the more apt analogy” because much like a gun kit, where the purpose is to build a gun, the purpose of that kit would be to make chili.

Kavanaugh said his main concern was whether a kit seller who didn’t know he was violating the law would he be prosecuted. Prelogar responded that the U.S. criminal code requires “willfulness” in order to bring a criminal charge and that any manufacturer or seller who has doubts is able to get a dispositive ruling from the ATF as to whether the gun or gun kit is legal.

But Kavanaugh was still concerned, asking, “If you haven’t done that,” referring to receiving a dispositive ruling from the ATF, “and you truly believe you’re not violating the law, could you be charged under that provision? Is that something the government would do?”

“I don’t think the government would be likely to charge someone in that situation,” responded Prelogar. She also asserted that Justice Kavanaugh’s hypothetical gun manufacturer is nothing like what is happening in reality, where the gun kit sellers are intentionally trying to circumvent a regulation while advertising their products as “ridiculously easy to assemble” and a way to have a “fully functional gun in as little as 15 minutes.”

Turning to a broader question, Justice Elena Kagan noted that sometimes “there’s an old statute that didn’t contemplate a new problem,” and in those situations, when “Congress can’t get its act together,” an agency takes old statutory language that doesn’t really fit the problem but tries to make it fit. Kagan asked Prelogar if that “is a storyline” that the kit sellers “can tell about this regulation?”

“No”, replied Prelogar. Gun manufacturers trying to evade gun regulations is “an age-old problem” that Congress was trying to fix, so they wrote a statute designed to deal with that problem.

“I think it’s really notable,” she said, “that none of the major gun manufacturers is suing us about this rule, and the reason for that is because they have abided by the ‘readily converted’ standard for more than 50 years, since the Gun Control Act became law.”

Proposed standard for the kits

Following Prelogar to the lectern was lawyer Pete Patterson, representing the kit sellers.

He maintained that just because the kit buyer only has to drill a hole or holes in the frame or receiver part of the gun, that doesn’t convert it into weapon that can be regulated by the government. Rather, he said, the standard should be whether critical machining was necessary.

Justice Barrett appeared skeptical of Patterson’s proposed standard, pointing out that “it doesn’t appear in statute” and that “it seems a little made up.”

Chief Justice John Roberts, who was quiet throughout Prelogar’s argument, weighed in on the debate about whether these guns are used by hobbyists or by individuals who could not legally buy a gun. When Patterson compared building these gun kits to how “some individuals enjoy working on their car every weekend,” Roberts responded caustically, that just “drilling a hole or two doesn’t give the same sort of reward that you get from working on your car on the weekends.”

A decision is expected later this term.