Ghost Guns at High Court Asks if They’re Firearms Under the Law

The Supreme Court will consider the lawfulness of a rule regulating “ghost gun” kits just months after it wiped out a federal ban on bump stock devices that make semi-automatic rifles fire like machine guns.

Tuesday’s case is starkly similar to the dispute last term with the government arguing again that it correctly interpreted a gun law, but that doesn’t mean it will meet the same fate. The stakes are higher, attorneys and legal scholars say, and that could alter the outcome.

The Biden administration has a powerful point, Supreme Court lawyer Deepak Gupta said at a term preview Georgetown Law hosted last month.

“If the court strikes down the rule, it significantly limits federal regulation in this area and there’s a real risk that criminals will be able to order guns on the internet and the entire gun control framework will not apply to them,” he said.

Police nationally are dealing with an explosion of crimes involving ghost guns, the government’s attorneys told the court. In 2017, law enforcement agencies submitted roughly 1,600 ghost guns to ATF for tracing, they said. “By 2021, that number was more than 19,000—an increase of more than 1,000% in just four years.”

Textualist Test

In a 6-3 ruling that split along the court’s ideological line in June, the conservative majority said bump stocks don’t meet the National Firearms Act’s definition of a machine gun that can be banned. Now they’re being asked in Garland v. VanDerStok whether ghost gun kits meet the definition of a firearm under the Gun Control Act.

The Bureau of Alcohol, Tobacco, Firearms and Explosives is trying to regulate build-at-home kits that can be bought online rather than ban them. That’s a key difference, attorneys say. If ghost guns are firearms under the law, that means they have to be marked with serial numbers and sellers have to be licensed, conduct background checks, and keep transfer records.

“The consequences of answering no to these questions is in effect to say anyone can circumvent those requirements by buying a gun parts kit and spending an hour or two finishing the product and putting it together,” said Georgetown Law professor Kevin Tobia, who joined a brief with linguistic professors supporting the government.

“It really kind of undermines the effectiveness of these provisions, which all the textualists claim they want to respect,” he said.

The Gun Control Act defines a firearm as “any weapon (including a starter gun) which will or is designed to, or may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.”

That language may force the justices to grapple with the practical implications of ruling against the government.

It calls attention to how easily someone could take a ghost gun kit and turn it into something that will expel a projectile by the action of an explosive, Tobia said.

The case, as a result, is one that “illustrates how hard it can be to fully disentangle text and meaning from thinking about real world consequences,” he said.

Social Considerations

During February’s arguments in the bump stock case, Garland v. Cargill, the justices seemed to avoid any discussion about the deadliest US mass shooting in which a lone gunman used semi-automatic guns equipped with bump stocks to fire rapidly into a crowd of concert-goers in Las Vegas. He killed 58 people and wounded about 500 more.

“It was lost on absolutely nobody how horrifically a bump stock had been used and, I think, the court tried to set that aside when thinking about the case, which is something I wasn’t sure we’d see last year,” Clement & Murphy partner Erin Murphy said while speaking at the Georgetown event.

It’s a signal for how they may think about the ghost gun case, she said.

Murphy filed a brief on behalf of the National Association of Sporting Goods Wholesalers supporting the individuals, advocacy groups, and manufacturers challenging the ATF regulation.

Talmadge Butts isn’t so sure after the court established a constitutional right to carry a handgun in public in 2022 and then upheld a federal law that bans people subject to domestic violence restraining orders from possessing a gun last term.

Conservative justices “kind of amalgamated a, quote, unquote, originalist reason for this regulation, but I don’t see it,” said Butts, who serves as lead staff attorney at the Foundation for Moral Law, an Alabama-based conservative Christian legal advocacy group. “I think it was a little contrived.”

The same thing could happen again and it would be because of the social considerations of the ghost gun kits, he said.

Foundation for Moral Law and other gun rights advocates urged the court to rule ATF exceeded its authority on ghost guns just like it did on bump stocks.

“The Biden-Harris ATF has repeatedly attempted to rewrite unambiguous firearms laws to restrict the right of Americans to keep and bear arms,” Randy Kozuch, executive director of the NRA Institute for Legislative Action, said in an emailed statement. “Recent decisions from the Supreme Court have rightly restrained executive branch agencies to their role of enforcing the law, not making laws.”

But ATF’s bump stock rule was finalized during the Trump administration and this case involving ghost gun kits, like the bump stock case, challenges the reach of a federal law not the Second Amendment.

Two individuals, gun rights groups, and manufactures challenging the rule argue ATF is expanding the definition of “firearm” to two ways: to include weapon parts kits and to include partially complete, disassembled, or nonfunctional frames, or receivers.

“This expanded definition upsets the delicate balance struck by Congress between the commercial production and sale of firearms and the non-commercial making of firearms by law-abiding citizens,” they said in one brief.

Tea Leaves

The court has stepped in twice to keep ATF’s regulation in effect.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh said they would’ve denied the application for temporary emergency relief in August 2023 when the court put Texas US District Judge Reed O’Connor’s ruling, which vacated ATF’s rule, on hold while the decision was appealed. There were no notable dissents when the court then tossed the US Court of Appeals for the Fifth Circuit’s injunction blocking the rule a few months later.

“I think that’s just the court maintaining the status quo, but you know, we’ll see,” Kannon Shanmugam said on “Bloomberg Law’s “Cases and Controversies” Supreme Court podcast. Shanmugam is chair of the Supreme Court and Appellate Litigation Practice at Paul Weiss.

But the stays, mixed with the significant public safety issues at stake, makes it a close call, Gupta said.

“I’m going to venture to predict that the decision will come out differently than the bump stocks case because of the practical realities of what would happen otherwise,” he said.

Everytown for Gun Safety Support Fund joined other gun violence prevention groups in filing a brief supporting the government in this case. Everytown for Gun Safety, which advocates gun-safety measures, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Garland v. VanDerStok, U.S., No. 23-852.