Many residents of the Vineyard are gun owners, hunters, even firearms collectors. But few likely own something commonly called “a ghost gun.” These weapons come unassembled, via the Internet, in pieces that anyone can easily assemble within 30 minutes, but here’s the key. They have no serial numbers, and are unregistered, so law enforcement cannot trace them. They include handguns, but also military-style semiautomatic weapons with great power.
In 2021 alone, the Treasury Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) reported that it recovered “20,000 suspected ghost guns” in criminal investigations. That year, the Biden administration announced a new rule that required ghost guns to include serial numbers, and for buyers to undergo background checks in accordance with the Gun Control Act of 1968.
Two individuals and a gun-rights advocacy group challenged the rule by claiming that the 1968 act did not encompass ghost-gun kits, but only “finished frames and receivers,” not pieces that a person assembles (Garland v. VanDerStok). They argue that the new ATF rule illegally expanded the definition of a firearm to include weapon parts kits, and items that with additional assembling could become a gun. A Texas federal judge agreed with them, and halted implementation of the rule nationwide, as did the U.S. Circuit Court of Appeals for the Fifth Circuit. The Biden administration appealed the case to the Supreme Court.
Three things are critical to understand about this case.
First, it does not implicate the Second Amendment. It is not a constitutional issue, but rather one that narrowly asks whether the ATF rule is consonant with the 1968 act.
Second, its focus is, as noted above, also narrow: The new rule states that gun parts that a person assembles at home are guns in themselves, and therefore require serial numbers and background checks of purchasers.
And third, the case is yet another one that challenges the authority of a federal agency, in this case the ATF. The Supreme Court has reduced the authority of federal agencies over the past three years in several cases after it overruled the so-called Chevron deference doctrine. Because Congress passes laws that are often imprecise and vague as to their implementation, the court ruled in 1984 that federal administrative agencies have broad authority to make decisions, considering their expertise, if those decisions were reasonable interpretations of the law.
The court ended that practice last July, when it overruled Chevron USA v. Natural Resources Defense Council in Loper Bright Enterprises v. Raimondo.
But commentators who watched the oral argument in early October were impressed by what appears to be a bare majority of the justices sympathetic to the new ATF rule. Should the rule prevail, it would be a departure from the court’s tendency to curtail the authority of administrative agencies. Readers may recall that last year the court overturned a Trump administrative rule banning bump stocks in Garland v. Cargill.
The main question before the court was whether the 1968 act includes gun parts a person later assembles. Several justices used analogies to try to get to an answer. Justice Samuel Alito asked, “If I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper and onions, is that a Western omelet?” In response, arguing for the U.S., Solicitor General Elizabeth Prelogar responded that it is not, because the ingredients may be made into something other than an omelet (she said she assembled a ghost gun herself in 15 minutes).
Justice Amy Coney Barrett argued that a better analogy would be that if you ordered a turkey chili kit with specific ingredients from a grocery store, and “all of the ingredients are in the kit,” it would be like a ghost-gun kit. Prelogar responded that was correct, saying that Barrett had “the more apt analogy here.” Ghost-gun kits do not include random parts, but are parts with a specific purpose.
Prelogar concluded, “If you bought from Trader Joe’s some omelet-making kit that had all of the ingredients to make the omelet, and maybe included whatever you would need to start the fire to cook the omelet, and had all of that objective indication that that’s what’s being marketed and sold, we would recognize that for what it is.”
Arguing for the gun owners, their attorney said that he thought the best analogy was someone working on their car over a weekend as a hobby. Chief Justice John Roberts chimed in and said the analogy of is not the same. As he put it, “Drilling a hole or two doesn’t give the same sort of reward that you get as working on your car on the weekends.”
It appears, though we have no way of knowing for certain, that a majority will uphold the ATF rule, and we will probably not know until June of next year. Islanders should understand that the rule is not a ban on ghost guns at all, but a requirement to have serial numbers on them, and for owners to undergo background checks.
Jack Fruchtman lives in Aquinnah. The fourth edition of his book, “The Supreme Court and Constitutional Law,” will be published next year.
