Washington � The Supreme Court on Tuesday appeared skeptical of a
challenge to the Biden administration's efforts to regulate unserialized
firearms called ghost guns, as they weighed whether the Bureau of Alcohol,
Tobacco, Firearms and Tobacco went too far when it took unilateral action
to curb gun violence.
The case was brought by a group of firearms owners, gun rights groups and
manufacturers who are seeking to invalidate the regulation that subjects
ghost guns to the same requirements as commercially made firearms.
The Biden administration has warned that striking down the rule would give
criminals, minors and others who are legally barred from having guns
access to kits that can be assembled into a functioning, untraceable
firearm in less than 30 minutes.
During oral arguments on the second day of the court's new term, a
majority of the justices seemed poised to side with the government and
uphold the regulation, which would mean that the makers of weapon parts
kits would have to be licensed, mark their products with serial numbers,
maintain certain records and run background checks on prospective buyers.
The question in the case, known as Garland v. VanDerStok, isn't whether
Second Amendment rights were violated, but whether the ATF exceeded its
authority when it issued the regulation in 2022. The rule clarified the
definition of "firearm" in the Gun Control Act of 1968 to include a weapon
parts kit that can be assembled into an operational firearm, and the
incomplete frame of a handgun and receiver of a rifle.
The measure aims to address a surge in crimes committed using ghost guns,
which can be made from 3D printers or kits and parts available online.
Because these firearms don't have serial numbers or transfer records, it's
difficult for law enforcement to trace them to their buyers, making them
especially attractive to people who can't legally buy firearms or plan to
use them in crimes.
But by clarifying the definition of "firearm" in the Gun Control Act to
cover these kits, the manufacturers and sellers of ghost guns must adhere
to the same requirements that commercial gun makers do.
A group of 20 major cities told the Supreme Court in a filing that the
rule appears to have been effective at reducing the use of ghost guns in
their municipalities and around the country. In New York, for example,
ghost gun recoveries dropped last year for the first time in four years.
In Baltimore, they decreased in 2023 for the first time since 2019.
Solicitor General Elizabeth Prelogar, who argues before the Supreme Court
on behalf of the government, reiterated that the rule has helped curb the
surge in crimes committed using ghost guns. The market for the firearms
"essentially collapsed" after the rule took effect, she told the justices,
underscoring that they were sold to be "crime guns."
The Supreme Court arguments
Early in the arguments, Justice Samuel Alito questioned the Biden
administration's interpretation that a parts kit can be readily converted
into a weapon that is regulated as a firearm. Could a pen and pad of paper
become a grocery list, he asked, or is a group of eggs, ham, peppers and
onions a Western Omelet?
Prelogar said no, and stressed that those items have other uses. But in
the case of kits used to assemble ghost guns, they are designed and
intended to construct firearms, she said.
The analogy quickly was picked up by Justice Amy Coney Barrett, whose vote
in the case could be pivotal. She asked Prelogar if her response would
change if a consumer ordered a meal kit from a company like HelloFresh
that contained all the ingredients for the purpose of cooking an omelet.
The solicitor general said Barrett's is a "more apt analogy," since they
are not scattered components.
Prelogar told the court that she has experience putting a parts kit
together, which she said required few steps and tools.
Chief Justice John Roberts, another member whose vote will be key, seemed
to rebuff claims from the challengers as to the difficulty of assembling a
ghost gun from kits. Pete Patterson, who argued for the gun owners and gun
rights groups, has said hobbyists interested in building their own
firearms often purchase these products, not criminals.
But the chief justice said it's "not terribly difficult" for someone to
complete a frame or receiver, which may require drilling a few holes and
removing plastic rails.
"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," he said.
Justice Brett Kavanaugh told Prelogar that her interpretation of the Gun
Control Act "has force," but he sought assurances that a kit seller who is
unaware they're breaking the law would not be charged if they failed to
comply with requirements like stamping their products with serial numbers
or obtaining a license.
"This is an agency regulation that broadens a criminal statute beyond what
it had been before," he said.
Prelogar told Kavanaugh that there's protection for manufacturers who seek
to comply with the law in good faith.
"ATF is not trying to hide the ball here. The point of the agency is not a
game of gotcha to try to criminally prosecute people. There was a very
serious public safety threat posed by the explosion of the use of these
ghost guns in crimes, and so the whole point of this regulation is simply
to put the regulated industry on notice," she said.
The challenge to the ghost gun rule
The gun owners, advocacy groups and kit manufacturers brought their
lawsuit against the Biden administration over the rule shortly after it
took effect. They argued that when Congress wrote the 1968 gun law, it
didn't give the ATF the power to change the definition of firearm to cover
kits. A federal district court judge invalidated the regulation. A panel
of three judges on the U.S. Court of Appeals for the 5th Circuit also
struck it down, finding that only finished firearms, or complete frames or
receivers, are covered by the Gun Control Act.
The Biden administration then asked the Supreme Court to review that
decision, arguing that the rule just ensures that ghost guns comply with
the same requirements that apply to commercial firearms sales. Prelogar
told the Supreme Court those requirements are "crucial" for solving gun
crimes and keeping firearms out of the hands of minors, felons and
domestic abusers.
Untraceable ghost guns, she said, are "attractive" to people who can't
lawfully purchase a gun, and Prelogar lamented that the nation has seen an
"explosion in crimes committed with ghost guns" since these kits became
available.
The 5th Circuit's decision, Prelogar wrote in a filing, "ignores the words
Congress wrote and would effectively nullify the act's careful regulatory
scheme by allowing anyone to anonymously buy a kit online and assemble a
fully functional gun in minutes � no background check, records, or serial
number required."
She also argued that the lower court's interpretation of the law
frustrates its design by transforming the definition of firearm into an
invitation to evade its requirements.
"All guns could become ghost guns" if the 5th Circuit's decision stands,
Prelogar said.
But the challengers said the ATF's clarification cannot be reconciled with
the plain text of the Gun Control Act and risks upending the regulation of
semi-automatic guns. Patterson told the justices that the ATF has exceeded
its authority by "operating outside the bounds set by Congress," and
expanding the definition of frame or receiver, as well as firearm through
its rule.
The gun owners and manufacturers said in filing that any change in the
regulatory approach to privately made firearms must come from Congress,
not the ATF.
"The decisive fact in this case is Congress's decision, in the GCA, to
focus on the commercial firearm market rather than the private making of
firearms for personal use. Accordingly, the GCA does not reach the items
used in private firearm making that ATF attempts to regulate," the gun
owners, led by Jennifer VanDerStok of Texas, said.
The Supreme Court has been asked to intervene in the legal dispute before,
but in an earlier stage in the litigation. In August 2023, the high court
agreed to allow the Biden administration to enforce the ghost gun rule
until it issues a decision on its legality, likely by the end of June
2025.
The Supreme Court divided 5-4 in halting the district court order that
struck down the measure, with Roberts and Barrett joining the three
liberal justices in the majority.
Roberts and Barrett's earlier votes make them key justices to watch,
though they do not mean they'll vote to uphold the measure now that the
Supreme Court is considering the merits of the case.
The high court will consider the ghost gun rule just months after it
invalidated a separate measure that banned bump stocks, a firearms
accessory that increases a semi-automatic rifle's rate of fire to hundreds
of rounds per minute.
In striking down the rule, the Supreme Court's six-justice conservative
majority ruled the ATF exceeded its authority when it issued the ban in
2018 after a mass shooting at a music festival in Las Vegas, the deadliest
in U.S. history.
https://www.cbsnews.com/news/supreme-court-ghost-gun-atf-arguments/?intcid=CNI-00-10aaa3a
Supreme Court probes limits of ATF rule regulating ghost guns