Supreme Court signals support for Biden administration regulation of ‘ghost gun’ kits

The Supreme Court offered clear support Tuesday for continued federal regulation of so-called “ghost guns” that can be assembled from kits into a working firearm without a background check or the usual serial numbers.

At issue in oral arguments was whether the devices meet the federal definition of a “firearm” and “frame and receiver,” and whether the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority to regulate and enforce their sale.

Ghost guns are do-it-yourself functional weapons that are often purchased online, and marketed by some sellers as easy to assemble.

The Justice Department said more than 19,000 hard-to-trace ghost guns were seized by law enforcement in 2021, a more than tenfold increase in just five years.

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Ghost guns are displayed at the headquarters of the San Francisco Police Department, in San Francisco, Nov. 27, 2019.  (AP Photo/Haven Daley, File)

That was driven in part by recent technological advances, many containing polymer-based unassembled firearm components.

Final home assembly typically requires the use of some readily available tools, including drilling holes and milling or sanding the unfinished frame or receiver, which enable the installation of parts.

U.S. Solicitor General Elizabeth Prelogar said the rising sale of untraceable “ghost guns” had created a “public safety crisis” with an “explosion” of crimes committed using them.

Several justices in the 75-minute argument appeared to back much of the Biden administration’s arguments, suggesting nearly complete parts meet the ordinary definition of a firearm subject to regulation.

“What is the purpose of selling a receiver without the holes drilled in it?” said Chief Justice John Roberts, rejecting suggestions the kits were marketed at the weekend gun hobbyist. “Drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends. My understanding is that it’s not terribly difficult for someone to do this.”

Justice Brett Kavanaugh — who could be the key deciding vote — raised concerns someone ignorant of the law might inadvertently sell or buy a ghost gun kit.

“What about the seller, for example, who is truly not aware, truly not aware that they are violating the law and gets criminally charged?”

But Kavanaugh also signaled some backing of the government’s position, telling Prelogar, “Your statutory interpretation has force.”

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A bump stock and handguns collected during a buyback event in the Wilmington neighborhood of Los Angeles, California, US, on Saturday, March 4, 2023. (Jill Connelly/Bloomberg via Getty Images)

The 1968 Gun Control Act was revised in 2022 to regulate the growing market for certain “buy build shoot” kits.

The law defines a “firearm” to include “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.”

The administration said it was not seeking to ban the sale or use of these kits, merely requiring them to comply with the same requirements of other commercial firearms dealers. That includes serial numbers on the parts and background checks on the purchasers.

A federal appeals court late last year struck down the updated rules, after a legal challenge from kit sellers and buyers, but the Justice Department appealed to the Supreme Court.

Gun rights groups say that the rule is “unconstitutional and abusive,” arguing the ghost gun kits consist of “non-firearm objects.”

Attorney Peter Patterson said only Congress can change the law over ghost gun regulations and added that 42 of 43 unlicensed manufacturers of the kits would be driven out of business if the rules go fully into effect.

The devices can also be made from 3D printers or from individual parts. That is part of separate legal challenges in the lower courts.

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United States Supreme Court justices pose for their official portrait on October 7, 2022 in Washington, DC. (Alex Wong/Getty Images)

In oral arguments, the high court wrestled with questions about the ease of assembling a “ghost gun” from a kit, and whether judges should even be involved in the matter.

“I’m worried about… the Court taking over what Congress may have intended for the agency to do in this situation,” said Justice Ketanji Brown Jackson. “I think it can’t be assumed that the agency exceeds its authority whenever it interprets a statutory term differently than we would such that all we have to do as a part of this claim here today is just decide what we think a firearm is.”

But others on the court questioned whether a bunch of unassembled parts really made them into a gun.

“Here’s a blank pad and here’s a pen, all right? Is this a grocery list?” asked Justice Samuel Alito.  “If I show you — I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions. Is that a western omelet?”

Justice Amy Coney Barrett then appeared to blunt Alito’s argument, focusing on do-it-yourself kits.

“Would your answer change if you ordered it from HelloFresh, and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?” she asked, mentioning the ready-to-cook meal kits delivery service.

Barrett also appeared skeptical of the legal alternatives to the ATF rules, proposed by Patterson, the lawyer representing the gun rights supporters.

“It seems a little made up,” she said.

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Vince Warner fires an AK-47 with a bump stock installed at Good Guys Gun and Range on Feb. 21, 2018, in Orem, Utah.  (George Frey/Getty Images)

Prelogar claimed the new rules had led to a dramatic drop in the online sales of the ready-to-assemble weapons.

The ATF’s rule requires unfinished parts of a firearm, like the frame of a handgun or the receiver of a long gun, to be treated like a completed firearm. These parts need to be licensed and must have serial numbers.

The rule also requires manufacturers to run background checks before selling these parts, as they are required to do for whole commercial firearms.

The Supreme Court had previously allowed the regulation to remain in effect while the lawsuit continued through the courts, with Chief Justice John Roberts and Justice Amy Coney Barrett voting with the three liberal members of the court to form the majority.

The justices have been revisiting the Second Amendment in recent years, after the conservative majority in 2022 made it easier to carry handguns outside the home for protection.

In June, a federal ban on bump stocks, devices that can convert semi-automatic rifles into weapons that can fire hundreds of rounds a minute, was struck down by the high court.

But that same month, the justices upheld a federal ban on firearms possession for people subject to certain domestic violence restraining orders.

The case is Garland v. VanDerStok (23-852). A ruling is expected by summer 2025.