Supreme Court Leans on Loper Bright to Protect ‘Ghost Gun’ Rule

The US Supreme Court has had its share of controversial decisions in recent years, but its decision in Bondi v. VanDerStok was exactly right.

Four conservative justices and the three liberals on the court agreed the Bureau of Alcohol, Tobacco, Firearms and Explosives’ 2022 rule about the definition of “frame” or “receiver,” popularly known as the “ghost gun” rule, wasn’t inconsistent with the Gun Control Act of 1968.

Justice Neil Gorsuch wrote the March 26 majority opinion, which focused on how best to interpret specific phrases in the GCA. The majority also invoked its landmark opinion from last term, Loper Bright Enterprises v. Raimondo, to explain why it was giving weight to ATF’s statutory interpretation, which could be a helpful tool for future litigants.

“Ghost guns” are simply privately made firearms, or at least guns built at home, rather than being fully assembled and operational when shipped from the factory. The reason they are called ghost guns is that they are missing the serial number that all regular guns, and many other consumer products, would have.

While a missing serial number from a computer might be an inconvenience, the ability to track and trace a firearm can have far more harmful effects. When a gun without a serial number is recovered from a crime scene, it’s virtually untraceable by law enforcement, allowing criminals to disappear like a “ghost.”

These guns aren’t only untraceable after a crime has been committed, but they are available to people who wouldn’t normally pass a background check to buy a firearm, such as convicted felons.

Advances in technology, especially the proliferation of affordable 3D printers, have made these devices more prevalent. An industry has grown up that ships kits to build guns without serial numbers that would normally appear on the frame or receiver of a regular firearm. Some kits, such as the “Buy Build Shoot” products at issue in the Supreme Court’s case, provide parts to assemble a full operational firearm in less than 20 minutes. Police have reported an exponential increase in these untraceable guns recovered from crime scenes in the last six years.

Besides tracing guns used in crimes, several other federal gun laws also depend on the serial numbers, such as the licensing rules for gun dealers (which requires extensive recordkeeping of inventory and sales), background checks for guns purchased from dealers, and the federal excise tax that gun manufacturers pay for every gun that leaves a factory.

This case wasn’t about whether the ATF “ghost gun” rule violated the Second Amendment (it didn’t), but was about gun regulation and whether ATF had veered too far afield from the text of its authorizing statute when it promulgated the rule. Congress often enacts laws that expressly direct an executive branch agency or official to define, within reason, some of the terms or decide which items or activities fall under the statute’s terms.

As Justice Ketanji Brown Jackson emphasized in her concurring opinion, that is exactly what happened here: Congress expressly delegated rulemaking authority under the Gun Control Act to the attorney general in 18 USC Section 926(a). Under the current organization of the executive branch, the attorney general exercises authority over ATF and typically delegates the promulgation of new gun rules to the firearms experts working within ATF. The bureau promulgated the “ghost gun rule” at the behest of the attorney general, who in turn had congressional authorization to make exactly this type of rule.

Separately, there remains the question of whether the rule is consistent with the statute it purports to implement or interpret, or if it deviates from the statutory text, which is the focus of Gorsuch’s majority opinion.

Last term, in Loper Bright, the Supreme Court overruled the longstanding Chevron doctrine, which had required courts to give deference to regulatory agencies’ interpretation of statutes they were implementing. Going forward, courts were instructed to arrive at their own independent interpretation of a statute at issue in a case. Thus, it was remarkable to see the majority in VanDerStok invoke the Loper Bright opinion for the idea that “the contemporary and consistent views of a coordinate branch of government can provide evidence of the law’s meaning,” which meant giving some weight to ATF’s interpretation of the statute, even though Loper Bright had supposedly backed away from deference to agency interpretations of the law. It will be interesting to see if lower courts cite this line from VanDerStok to reframe the meaning or legacy of Loper Bright.

However, Gorsuch devoted most of the majority opinion to parsing the statutory verbiage to show that ATF’s rule is consistent with the underlying codified law. He also explained how the rule appropriately applies the law to new technology, such as polymer gun frames or receivers that require customers to snap off a few plastic tabs with household tools before assembling the parts into a functional handgun. Photographs of gun frames and receivers appear in the middle of the opinion, which is unusual.

As a result, the ghost gun rule remains in force, though the attorney general could, in theory, rescind the rule at some point in the future. More broadly, the parts of the opinion about the agency’s authority to promulgate new rules to implement or adapt old statutes, and about the deference courts should give to agency interpretations, could have far-reaching implications for cases involving other agencies, such as the Federal Trade Commission or the Environmental Protection Agency.

The case is Bondi v. VanDerStok, U.S., No. 23-852, decided 3/26/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Dru Stevenson is a law professor at South Texas College of Law in Houston, with focus on firearms regulation and administrative law.

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