WASHINGTON – A majority of Supreme Court justices appeared skeptical of the challenge to a 2022 Biden administration rule that strengthened regulation of so-called “ghost guns” in the oral arguments for Garland v. VanDerStok on Tuesday morning.
The case’s respondents, Texas residents Jennifer VanDerStok and Michael Andren, are joined by a series of gun rights advocacy groups in challenging the legality of a 2022 rule implemented by the Biden administration that directed the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to regulate the sale of ghost guns.
Ghost guns are firearms that can be hastily assembled from unlicensed kits which are typically ordered online. The rule requires ghost gun sellers to abide by the same regulations as traditional gun manufacturers, such as giving each kit a serial number and conducting a basic background check to repel minors or others prohibited from owning a gun.
Federal statistics show the number of ghost guns collected in connection to a crime drastically increased in the years leading up to the Biden administration’s change in policy. In 2018, just under 4,000 ghost guns were reported to the Department of Justice — that number rose to over 19,000 by 2021.
The petitioners, led by Attorney General Merrick Garland, claim the Biden administration derives legal authority to regulate ghost guns from the Gun Control Act of 1968, which 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.”
Opponents of the rule argue the administration’s attempt to interpret the Gun Control Act constitutes executive overreach. “The executive branch does not have the power or legal authority to define what a firearm is,” said Andrew Gottlieb, managing director of the Citizens Committee for the Right to Keep and Bear Arms, in a statement to Medill News Service. “Only Congress has the power to legislate the definition of a firearm.”
In Tuesday’s arguments, Solicitor General Elizabeth Prelogar argued that the ATF did not change its statutory interpretation of the Gun Control Act, but rather that the new rule is largely a continuation of the ATF’s consistent consideration of how readily components can be converted into a firearm. “The only question the Court should be asking in this case is whether there is anything on the face of the rule that is contradicted by the statutory text,” Prelogar said.
Peter Patterson, the lawyer representing the ghost gun manufacturers and users who initiated the challenge, emphasized that the Gun Control Act does not include the same clause on items that may be “readily converted” in its definition of a “frame or receiver” of a gun. He proposed an alternative standard, the “critical machining operations test,” which judges whether the necessary machining operations have taken place on a frame or receiver.
Justice Amy Coney Barrett said the standard recommended by Patterson “seems a little made up.” Chief Justice John Roberts, meanwhile, pointedly questioned Patterson over the purpose of buying a frame or receiver of a gun that only requires drilling a small number of holes to make it operable.
The lawyer responded by comparing the practice to the enjoyment some derive by working on their car over the weekend. Roberts pushed back, saying, “he really wouldn’t think he has built that gun, would he?”
Justices Samuel Alito and Clarence Thomas appeared most receptive to Patterson’s argument. Thomas said to Prelogar that “it wasn’t regulated in this way for half a century,” while Alito offered an analogy about whether the ingredients of an omelette on a kitchen counter could be considered an omelette itself. “The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use,” Prelogar said.
Proponents of the ATF regulation claimed victory after Tuesday’s arguments. “Today the ghost gun industry’s fiction that its gun building kits are not firearms crashed into a brick wall of reality in the Supreme Court,” said Eric Tirschwell, executive director of the gun control litigatory group Everytown Law, in a statement. “Every member of the High Court seemed to recognize under Congress’ broad and flexible definition that a gun building kit which can quickly and easily be turned into an operable weapon is a firearm.”
Georgia State University Professor of Law Timothy Lytton was less committal on the eventual outcome of the case. “The question comes down to just how much assembly has to be completed in order for something to count as a receiver or frame,” Lytton said. “[Patterson] was hard-pressed to argue why it is that a frame or receiver that was essentially missing two holes drilled in it and had some plastic tabs that needed to be removed wasn’t plausibly considered a frame or receiver.”
Last year, the U.S. Court of Appeals for the 5th Circuit upheld a ruling made by Texas federal district judge Reed O’Connor which declared the ATF rule to be executive overreach and blocked its enforcement. The Biden administration appealed the 5th Circuit ruling to the Supreme Court, and the rule was temporarily reinstated in a 5-4 shadow docket vote with Roberts and Barrett joining the court’s three liberal justices in the majority.
The 5th Circuit then attempted to pause the rule for a second time after hearing full oral arguments for the case, but the Supreme Court once again put it back into effect, this time in a unanimous decision. The highest court in the land added Garland v. VanDerStok to its docket this April.
The ATF rule, in combination with a barrage of lawsuits from gun control advocacy groups, has forced several ghost gun manufacturers out of business in the last two years.
Law-enforcement officials from across the country have voiced support for the rule, arguing that it meaningfully contributes to public safety. “The ready acquisition of ghost guns by high-risk individuals, including convicted felons, domestic abusers, and minors, led to horrific incidents of gun crime,” wrote a group of 20 major cities, nine major counties, six prosecutors and the national organization Prosecutors Against Gun Violence in a joint amicus brief. “Incidents that might have been prevented if ghost guns had been subject to federal regulation.”
The Supreme Court is set to rule on Garland v. VanDerStok next summer.
