The U.S. Supreme Court heard oral arguments Tuesday morning in a case challenging the federal government’s 2022 rule aiming to regulate “ghost guns.”
Ghost guns are firearms without serial numbers that can be assembled using parts printed on a 3D printer or purchased online or by mail without a background check.
Despite having previously ruled against the government’s ability to issue certain regulations on guns, many of the Justices appeared inclined during Tuesday’s session to support the federal government’s authority to regulate “ghost guns.”
While the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has argued that the rules are necessary to address an “urgent public safety and law enforcement crisis” created by the “exponential” increase in these weapons, gun owners and manufacturers have challenged the law, suggesting that it exceeds the agency’s authority under the Gun Control Act of 1968.
Under this law, Congress imposed “licensing, background-check, record keeping, and serialization requirements on persons engaged in the business of importing, manufacturing, or dealing in firearms.”
According to Supreme Court documents for this case, this law defines a “firearm” as “any weapon…which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon.”
In 2022, the ATF adopted a rule which expanded this definition to include products “that can readily be converted into an operational firearm or a functional frame or receiver.”
The Court is now tasked with determining whether the items now included under expanded definitions of “firearm” and “frame or receiver” adopted by the ATF in 2022 are consistent with those which are regulated by the Gun Control Act of 1968.
The Fifth Circuit held in 2023 that the ATF’s definitions were inconsistent with this law, leading Attorney General Merrick Garland to petition the Supreme Court for reconsideration.
Jennifer VanDerStok — the named respondent — brought this case in 2022 alongside Michael Andren, manufacturer Tactical Machining, and Firearms Policy Coalition, a 501(c)(4) organization.
During Tuesday’s oral arguments, Solicitor General of the United States Elizabeth Prelogar argued that these “untraceable” weapons are “attractive” only to those who cannot legally own a firearm or who intend to use a gun for criminal activities.
Pete Patterson — attorney for the respondents — argued instead that these kits are geared toward hobbyists looking to construct their own firearms.
Patterson went on to contend that the ATF exceeded its authority under the 1968 Gun Control Act by “operating outside the bounds set by Congress” and expanding upon the definition not only of “firearms,” but also of “frames or receivers.”
The majority of the Justices’ questions for Solicitor General Prelogar focused on the idea of something being “readily convertible” into a weapon and the impact of whether or not the constituent parts have “well known” uses besides weaponry.
At one point, Justice Samuel Alito reportedly held up a pen and yellow legal pad, asking: “Is this a grocery list?” Similarly, several Justices referred to the analogy of the ingredients versus a completed meal when asking Prelogar to articulate the point at which component parts can be understood as equivalent to the completed product.
Similarly, the Justices questioned Patterson on standard by which a “firearm” can be defined under the 1968 law, prompting discussion of the so-called “eighty percent rule” — or “critical machine operations test” — referring to the degree to which a product has been developed prior to sale.
Rather than focusing on how quickly or easily something can be transformed into a weapon, Patterson suggested that it would be more appropriate to consider how much of the process has been completed in advance.
Patterson went on to note in response to questions from the Justices that regardless of what the correct interpretation of the 1968 Gun Control Act may be, the government’s approach is incorrect and exceeds their authority under the statute.
The Fifth Circuit had previously ruled in favor of the gun owners and manufacturers, arguing that even a single missing hole is enough under existing law to preclude a gun from regulation by the ATF given their current authority.
“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” the Circuit Court wrote in its 2023 decision.
“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” said the Fifth Circuit. “But it is not the province of an executive agency to write laws for our nation.”
[RELATED: “Ghost Guns” Coming Soon to SCOTUS]
Following this ruling, the Supreme Court voted 5-4 in favor of allowing the federal government to reinstate its regulations on “ghost guns” as the legal challenge continued to be considered.
Among the Justices voting in support of the government at that time were Chief Justice John Roberts and Justice Amy Coney Barrett, alongside Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson,
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have denied the application.
Earlier this year, the Supreme Court rolled back restrictions on “bump stocks” in an 6-3 ruling, rejecting the federal government’s assertion that guns equipped with these devices are machine guns, which are generally prohibited by law.
The majority argued that Congress could have enacted a law banning all weapons capable of high firing rates but did not do so. Consequently, they ruled that ATF was in the wrong for extending the ban to include bump stocks.
Justices Sotomayor, Kagan, and Jackson dissented, arguing that the Court’s ruling “will have deadly consequences.”
The rule overturned by the Court in that case was first issued by the Trump administration in 2018 following the mass shooting at a Las Vegas music festival wherein the gunman used semi-automatic rifles equipped with a bump-stock device.
The Supreme Court typically hands down opinions by the end of the term, with unanimous decisions being released more quickly than those which prove to be more contentious.
Although the legal debate has centered around firearms and the Second Amendment, the issue of ghost guns also relates to the First Amendment right to free speech, as the parts to make the firearms exist first as written code that can be and has been shared broadly on the Internet.
Americans have been building their own firearms, since before the founding, ‘n will continue to do so,…..