Written by: Elyssa C. Vernold
On Tuesday, October 8, 2024, the Supreme Court heard oral arguments in Garland v. VanDerStok. The Court’s ruling on the case will determine whether the Bureau for Alcohol, Tobacco, Firearms, and Explosives (“ATF”) acted outside of the scope of its authority set by the Gun Control Act (“GCA”) of 1968 when issuing a Final Rule that attempted to regulate the “ghost gun” industry.
Ghost guns are fully functioning firearms that have been assembled from a parts kit. These kits contain everything that is necessary to build a firearm, including unfinished frames and receivers, the operating parts of a gun, that can easily be put together in a few hours by following a few simple steps. These kits can be purchased by anybody without a background check. The guns, once built, are unserialized, and thus untraceable.
The use of ghost guns in various crimes has increased exponentially in recent years. Ghost gun recovery by law enforcement nationwide increased by 1,000% between 2016 and 2021, with agencies seizing 45,240 firearms, 692 of which were connected to homicide or homicide attempt investigations. However, these numbers and statistics are likely under representative of the actual amount of ghost guns seized due to the difficulty in identifying them.
In 2022, in attempts to address the “public safety and law enforcement crisis” posed by ghost guns, the ATF issued their Final Rule to define the terms “firearm,” “frame,” and “receiver,” establishing that ghost guns are firearms and therefore regulated under federal law. This rule expanded the definition of “firearm” to include products like gun kits that can be assembled to create a functioning gun. As to frames and receivers, the ATF clarified that unfinished guns are included in the definition, so long as they can be “readily” converted or completed to become functional. Per the rule, manufacturers and sellers of ghost gun kits are required to take certain measures, such as obtaining background checks, retaining transfer records, and more as required by the GCA.
On August 11, 2022, the plaintiffs, who included gun owners and a gun-rights advocacy group, filed a petition in the Northern District of Texas calling for review of the ATF’s authority when implementing the Final Rule. The district court judge agreed with the plaintiffs, granting summary judgment and vacating the Final Rule. The Supreme Court, upon the Biden administration’s request, allowed the Rule to stay in effect for the duration of the VanDerStok appeal. On October 2, 2023, the Fifth Circuit affirmed the district court’s holding on the Final Rule. The Supreme Court subsequently granted certiorari.
During oral arguments, U.S. Solicitor General Elizabeth Prelogar argued that ghost gun kit manufacturers were attempting to evade federal law by selling and advertising nearly complete frames and receivers. She went on to state that the new Rule does not go against past practice of the ATF, as it goes to the question the agency has always been focused on, that being how making a functional firearm can be completed, and how quickly, efficiently, and easily one can do so.
Attorney Peter Patterson, counsel for the plaintiffs, suggested that the ghost gun kits were aimed and marketed towards gun hobbyists who simply wanted to build their own weapons. Furthermore, he countered Prelogar’s argument, stating that ATF’s standard is not whether frames or receivers can be readily converted into firearms, but rather, if the frames or receivers are critical machining operations. Prelogar replied, urging the Court to consider the “practical ramifications” of Patterson’s argument “that a single undrilled hole is enough to exempt a product from regulation.”
Chief Justice Roberts seemed unconvinced by Patterson’s argument, submitting that it is unlikely that a gun hobbyist would truly believe they built a gun by the simple assembly required by ghost gun kits. Justice Coney Barrett went as far as to say that the legal framework Patterson relied on seemed “a little made up.” With the three democratic justices predicted to vote against the opponents, legal analysts predict that the Supreme Court may just rule in favor of the ATF’s ghost gun regulations.
While we can analyze the justices’ responses to the oral arguments, we cannot be certain how the Court will rule on the issue. However, there is one thing we do know: the outcome of VanDerStok will have an immense impact on the firearm industry for manufacturers, consumers, and law enforcement.
Sources:
Amy Howe, Court likely to let Biden’s “ghost gun” regulation stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM).
VanDerStok v. Garland, 86 F.4th 179 (5th Cir. 2023), cert. granted.
Brady United, Ghost Guns (last visited Oct. 27, 2024, 10:21 AM).
Amy Howe, Justices to hear challenge to regulation of unserialized ‘ghost guns’, SCOTUSblog (Oct. 2, 2024, 5:35 PM).
Everytown for Gun Safety, Polymer80 Is Morally Bankrupt–and Now It’s Out of Business (Sept. 6, 2024).
Jake Fogleman, Fifth Circuit Narrows but Upholds Ruling Blocking Biden ‘Ghost Gun’ Ban, The Reload (Oct. 2, 2023, 3:12 PM).
Ian Millhiser, The Supreme Court appears to have found a gun regulation it actually likes, Vox (Oct. 8, 2024, 12:35 PM).