The Biden administration will defend its regulation of so-called “ghost guns” before the Supreme Court during oral arguments Tuesday, months after the same conservative-controlled court threw out another federal gun control rule.
The case, Garland v. VanDerStok, is the first of several government attempts to use a decades-old law to curb gun violence nationwide, this time amid a tide of thousands of untraceable guns used in crimes.
The Bureau of Alcohol, Tobacco, Firearms and Explosives issued the rule in 2022 to target the sale of parts kits that can be quickly assembled into functioning firearms, some as quickly as 30 minutes. The rule clarified that those kits qualify as “firearms” that are required to be sold with serial numbers and background checks the same as commercially produced guns.
Challengers to the rule argued the rule went beyond ATF’s authority in the Gun Control Act of 1968 and convinced the U.S. Court of Appeals for the 5th Circuit to toss the rule.
Those challengers — two individuals, one producer, one retailer and the Firearms Policy Coalition — argue the 1968 law doesn’t give ATF the power to redefine a firearm to include their hobbyist kits.
“It transgresses the line that Congress drew in enacting the GCA between commerce in firearms, which is regulated, and private making of firearms, which is not, and it risks upending the regulation of popular semiautomatic firearms,” the challengers argued.
Biden administration officials contend that a gun parts kit that requires only household tools to assemble is close enough to a firearm to be regulated as one.
The rule “simply ensures that ghost guns are subject to the same straightforward and inexpensive administrative requirements that apply to commercial sales of all other firearms,” the Biden administration said in its brief.
The government and gun control advocates also have warned that the flood of untraceable guns would intensify if the Supreme Court stopped the rule. The Biden administration told the justices that federal authorities have been able to identify fewer than 1 percent of unregistered “ghost guns” sent in by local police.
Experts say the case could hinge on how Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett interpret the words in the law. The two conservative justices joined the three justices on the court’s liberal wing to allow the rule to stay in effect while the court fight plays out.
But last term, those two justices were in a 6-3 majority that struck down a different gun control rule from the ATF that sought to use a machine gun ban in the National Firearms Act to restrict so-called “bump stocks” that can be attached to allow guns to mimic automatic fire.
Andrew Willinger, the executive director for the Duke Center for Firearms Law, said the ghost guns case is “heading in a similar direction” to the bump stock case last term, but the two rules operate under different laws.
Willinger said the law underpinning the ghost gun rule includes language about regulating weapons that could “readily be converted” into firearms, which could be key to the case.
In the bump stock case, the court’s conservative majority paid specific attention to the function of a “trigger,” which the National Firearms Act used to define a machine gun.
“There’s definitely more expansive language here than what we were talking about with the definition of machine gun in the National Firearms Act,” Willinger said.
John Moran, a partner at McGuireWoods, said at a Federalist Society event that just because Roberts and Barrett voted to allow the rule to stay in effect, that doesn’t mean they’ll ultimately vote to uphold it. The court’s conservatives have been struggling with each other recently over how tightly they should interpret congressional statutes, Moran said, a struggle that could determine whether the rule survives.
“This is a case where we are likely to see competing textualist interpretations of the same text,” Moran said.
Kelly Sampson, the director of racial justice and senior counsel at gun control advocate group Brady, said that many advocates fear the court would not uphold the rule even though the law includes language intended to prevent the sale of untraceable firearms.
“So this case could show sort of the extreme implication of empowering the Supreme Court, rather than the agencies and Congress, to regulate such a really, really big problem for us,” Sampson said at a recent Center for American Progress event.
In 2022, the Democrat-controlled House passed legislation on a mostly party-line vote that would have restricted ghost guns as part of a package of gun control proposals in the aftermath of the elementary school shooting in Uvalde, Texas.
But those ghost gun provisions were not included in the final gun violence package that Congress passed that year, which included few gun control measures.
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