The National Rifle Association (NRA) told the Supreme Court on Aug. 20 that the federal regulation governing so-called ghost guns is unconstitutional and should be struck down.
“Ghost gun” is a term some use to describe a privately made or assembled firearm that law enforcement cannot track because it lacks a serial number.
The new filing comes weeks before the Supreme Court hears Garland v. VanDerStok, on Oct. 8. In the case, the lead respondent, Jennifer VanDerStok, a former police officer in Texas, is challenging the rule regulating the un-serialized guns. The petitioner is U.S. Attorney General Merrick Garland.
Although some states regulate homemade guns, gun control organizations have been trying for years to ban or regulate homemade guns and gun assembly kits at the federal level but have failed to persuade Congress to act.
President Joe Biden has claimed that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”
The regulation known as the “frame or receiver” rule requires individuals who assemble homemade firearms to add serial numbers to them. The rule also mandates background checks for consumers who buy gun kits from dealers.
When President Biden unveiled the regulation in April 2022, the White House said that law enforcement officials are “increasingly recovering” ghost guns “at crime scenes in the cities across the country.”
In 2021 alone, law enforcement seized about 20,000 “suspected ghost guns,” representing a 10-fold increase since 2016, the White House said.
The regulation was halted in June 2023 when U.S. District Judge Reed O’Connor found that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority under federal law by creating it.
In July 2023, the U.S. Court of Appeals for the Fifth Circuit sided with O’Connor, but in October of that year, the Supreme Court temporarily reinstated the rule while the case worked its way through the courts. The same month, the Fifth Circuit revisited the case and vacated the part of O’Connor’s injunction that shielded gun kit customers from the regulation, saying it was doing so based on the government’s assurance that it would not enforce the rule against those customers while the case remained pending.
The federal government appealed the Fifth Circuit’s ruling, filing a petition with the Supreme Court on Feb. 7, which the nation’s highest court granted on April 22.
In addition to finding that individuals have a constitutionally protected right to bear arms in public for self-defense, the court found in Bruen that gun restrictions must have a historical analogue to withstand challenge.
“Private individuals in America have always enjoyed the right to make firearms,” the NRA brief says.
“In colonial America, because firearms were essential for food and protection, gunmakers appeared wherever the English settled. Many of these gunmakers worked in isolated cabins and completed all the work themselves. Their craft was widely celebrated and unregulated.”
Privately made arms were vitally important to the Revolutionary War effort. When the British enforced an embargo in 1774 against the importation of guns and ammunition, a move that led to widespread shortages, “American governments depended on private gunmakers—gunsmiths and non-gunsmiths—to produce firearms,” according to the brief.
“This homegrown cottage industry produced over one-quarter of the long arms used by American line troops during the war,” it reads.
“The tradition of private gunmaking includes building firearms with purchased components. Many early Americans made firearms by combining self-made components with imported locks and barrels. These gunmakers—like those who build firearms from precursors of frames or receivers or parts kits—‘made’ firearms just as much as gunmakers who built firearms from scratch.”
The right of individuals in the original English settlements to import arms and the materials needed to manufacture them was protected by law. State governments and their predecessors also recognized the right to make firearms and ammunition, according to the brief.
The NRA argues that it is “implausible” that the founders of the United States did not want to protect “private arms-making” when they drafted the U.S. Constitution’s Second Amendment, which was ratified in 1791.
“Restrictions on self-made arms have been rare throughout American history. All restrictions on arms built for personal use have emerged within the last decade, and from only a few states,” the brief says.
The Epoch Times reached out to the U.S. Department of Justice for comment on the NRA’s brief but did not receive a reply by publication time.
Congress defined “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,” and included “the frame or receiver of any such weapon.” Congress empowered the attorney general to make regulations under the statute, and he delegated that authority to the ATF, she said.
If the Fifth Circuit’s decision stands, makers and distributors would be given a “green light to resume unfettered distribution of ghost guns without background checks, records, or serial numbers,” and this “would pose an acute threat to public safety,” Prelogar said.
