Judges will hear complaint about regulation of non-serialized ‘ghost weapons’

CASE PREVIEW

Oral arguments in Garland v. VanDerStok starts October 8 at 10 a.m. (John M. Chase via Shutterstock)

Next week, the Supreme Court will hear oral arguments in a challenge to a 2022 federal rule that seeks to regulate “ghost guns” – firearms without serial numbers that, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives, almost everyone can quickly assemble with the parts they buy, often in a kit online or by mail. Serial numbers are used by law enforcement to track weapons used in crimes.

In defending the rule, the ATF argues that it is necessary to address the “urgent public safety and law enforcement crisis” created by the “exponential” increase in ghost weapons. The agency emphasizes that the rule is not intended to ban ghost guns, but instead simply seeks to ensure that they are regulated in the same way as other commercial gun sales.

But gun owners and manufacturers are questioning the federal government’s failure to previously require licenses to produce guns for private use. They also oppose ATF’s efforts to portray ghost weapons as a problem. They argue that even without the 2022 rule, federal gun regulations still apply to “the vast majority of firearms manufactured in this country,” and, they say, the ATF’s own data shows that ghost guns “are not a significant source of firearms for criminals.”

Background

The Gun Control Act of 1968 requires gun manufacturers and sellers to obtain federal licensing, maintain records of gun sales and transfers, and conduct background checks. Manufacturers must also put a serial number on the weapon. The law defines a “firearm” as “any weapon… which will, is designed, or may be readily adapted to expel a projectile by the action of an explosive,” including “the frame or body of any such weapon.”

Non-serialized, homemade weapons are becoming more and more popular. According to Biden administration data, law enforcement saw a 10-fold increase in the number of ghost weapons reported to the ATF between 2016 and 2022.

Ghost pistol kits can be purchased online without showing ID or undergoing background checks required by federally licensed dealers. They can also be purchased anonymously with cryptocurrency or, as regulators note, a prepaid debit card at a grocery store. Background checks for commercial gun sales are designed to prevent criminals, domestic abusers and children from purchasing guns. In June, in a separate ruling, the Supreme Court confirmed that the Constitution allows the government to prohibit people who are victims of domestic violence from possessing or carrying weapons.

The ATF issued the 2022 rule to clarify that requirements imposed by federal law on gun dealers and manufacturers also apply to the sale and production of ghost weapons. The regulation defines “firearms” as products, such as kits of weapon parts, that can be converted into an operational weapon or a functional frame (the basic structure of the weapon) or a receiver (the part of the weapon that houses, among other things, the trigger mechanism). The rule also clarifies that the terms “frame” and “receiver” include partially complete or disassembled frames or receivers that can be “easily” assembled or modified to function as a frame or receiver.

In August 2022, a group of challengers that included two individual gun owners and a gun rights organization went to federal court in Fort Worth, Texas, seeking to block the law from going into effect. They were later joined by several producers and another support group. Those challenging the provisions of the 2022 rule, which included gun parts kits within the 1968 law’s definition of “firearm” and included partially complete frames or receivers within the scope of the law.

In June 2023, U.S. District Judge Reed O’Connor agreed with the challengers and barred the ATF from enforcing this rule anywhere in the United States.

But later this summer, the Supreme Court granted the Biden administration’s request to allow the rule to be enforced on appeal. The vote was 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicating they would deny the government’s request and allow O’Connor’s order to stand.

When the U.S. Court of Appeals for the Fifth Circuit ultimately heard ATF’s appeal, it largely upheld O’Connor’s decision. That prompted the Biden administration to go to the Supreme Court earlier this year asking the justices to decide whether ghost gun parts and kits are “firearms” regulated by the 1968 act.

Arguments

The ATF and the challengers disagree on virtually every element of the Supreme Court case, starting with the ATF’s premise – that almost anyone can quickly assemble a ghost gun using only “basic tools and basic skills” “in as little as twenty minutes.” “

Both the challengers and a “friend of the court” filing by a former ATF official say the process is much more difficult than the ATF suggests. They argue that assembling a ghost weapon can require a lot of time, specialized tools and technical knowledge, and that the additional costs may exceed the cost of purchasing a new, off-the-shelf weapon.

The central issue before the justices is whether the 1968 Act gives the ATF the authority to regulate ghost guns under the 2022 rule. The ATF insists it does, arguing that the 1968 Act does not apply only to guns, which is already fully assembled. This rule “closely follows” the text of the 1968 Act, the ATF reasons, explaining that a set of gun parts that can be “easily assembled, assembled, refurbished, or otherwise modified to discharge a projectile by the action of an explosive” is “firearm”.

Similarly, as the AFT notes, nothing in the 1968 Act indicates that it applies only to frames and receivers that are complete and functional.

The ATF suggests that applying the 1968 law to ghost weapons is actually a matter of common sense. “If the state imposed a tax on the sale of tables, chairs, sofas and bookshelves,” he explains, “IKEA could not avoid paying by insisting that it would not sell any of these items and instead sell ‘kits of furniture parts’ that must be assembled by the buyer.”

Opponents say the government’s comparison of gun parts kits to IKEA bookshelves is misguided. A better solution, they write, “would be a box containing shelves and, instead of a frame to hold them, wooden boards that have been cut to the appropriate length and drilled for this purpose.”

Both the history of efforts to regulate ghost guns and the text of the 1968 Act itself, opponents argue, support repealing the 2022 rule. As challengers note, before the ATF enacted the rule, Congress considered several proposals to amend the 1968 Act ., but did not adopt them to include partially completed frames, receivers, and parts kits – indicating that Congress believes the Act as currently drafted does not cover them. In other provisions of the bill, Congress specifically included references to gun parts, showing that it knows how to regulate gun parts sets when it wants.

Moreover, the 1968 Act defines a “firearm” as a weapon that is capable of “expelling a projectile by the action of an explosive” and (among other things) a weapon that is “designed” or “easily modified.” However, although the law does not provide the same language for frames and receivers, the rule will interpret the statute as if it did.

This interpretation, they warn judges, could have serious consequences: because AR-15 bodies can usually be converted to function as machine guns, sometimes quite easily, if “anything that can be ‘easily converted’ to function as a ‘frame,’ or receiver” is a “frame or receiver,” then Americans who own AR-15 rifles, one of “America’s most popular firearms,” risk violating the “federal ban on unregistered machine guns.” As the challengers conclude, the 2022 rule “threatens to turn law-abiding firearm owners into criminals.”

The two sides also dispute whether the 2022 rule is consistent with ATF’s past practice. The ATF insists it does, telling judges that for more than half a century it has “classified a product as a frame or body if it can be readily assembled to function as a frame or body.”

However, challengers counter that if ATF actually applied the rule’s definition to partially complete frames and receivers, the practice would not merit deference because the agency has never written it into any rule.

In any event, the challengers claim, the regulations issued following the 1968 Act defining the frame or receiver “remained unchanged until 2022 and said nothing about precursors to frames, locks or parts sets.”

If any doubt remains about whether a rule falls outside the ATF’s authority, challengers tell judges they should uphold lower court decisions invalidating the rule because it is “hopelessly vague.” For example, as challengers note, in defining both “frame or body” and “weapon parts assemblies,” the 2022 rule relies on the ATF’s definition of the term “easily,” which the agency bases on an eight-part list of considerations, which “It appears that the ATF has intentionally provided vague information.”

The ATF rejects the claim that the 2022 rule contains the type of “serious ambiguity” required to rule in favor of the challengers: “Dictionary definitions of relevant terms, statutory context, ATF’s long-standing practice, precedent and common sense clearly demonstrate that parts kits and partially complete frames and receivers that can be easily assembled fall within the statute’s definition of “firearm.”

Finally, the ATF urges judges to look at the bigger picture, emphasizing that leaving lower court rulings in place would “recreate the same problem” that Congress tried to avoid when it passed the 1968 law – detaining criminals, minors and others seeking weapons for criminal purposes, avoiding regulations, purchasing weapons by mail.

However, opponents reject the government’s suggestion that if this rule is repealed, people who should not have access to weapons will be able to do so. They write that the partially completed frames, receivers and kits that the rule is intended to regulate “are preferred by hobbyists, while the vast majority of criminals prefer to obtain professionally manufactured firearms.” But if Congress wants to regulate ghost guns, they conclude that that is a decision for it – not the ATF – to make.

This article was originally published on Howe on the Court.