The Supreme Court heard oral arguments on Oct. 8 over an attempt by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to apply federal gun control legislation in a way that would prohibit so-called ghost guns.
Ghost guns are generally understood to be untraceable firearms that lack serial numbers, were purchased by someone without a background check, and are potentially provided by a source other than someone licensed to do so.
The conservative justices raised questions about how to view a firearm’s components versus its entirety. Justice Amy Coney Barrett, considered more of a swing vote on the court, suggested that the attorney challenging ATF’s regulation was proposing a “made up” legal test.
In 2022, the Biden administration attempted to crack down on ghost guns by implementing an ATF rule that interprets a longstanding federal law—the Gun Control Act (GCA) of 1968—as applicable to certain weapons kits, as well as items used to produce frames and receivers.
Components of Firearms
Justice Samuel Alito questioned the idea that a gun’s components could be considered a gun before construction or conversion into a weapon. He asked U.S. Solicitor General Elizabeth Prelogar, for example, whether a pen and pad of paper could be considered a grocery list or whether the ingredients for an omelet could be considered an omelet itself.Prelogar countered by suggesting those were not apt comparisons since those items were known to be used for other purposes.
Barrett questioned whether the situation would change if someone ordered omelet ingredients from Hello Fresh, a company that provides ingredients for cooking a particular item. Prelogar said that was a more apt comparison.
Justice Neil Gorsuch then told Prelogar that “we can’t possibly think that every noun that Congress uses everywhere in the U.S. code is used as an artifact noun that carries with it things like” those included in Alito’s grocery list example.
Prelogar told Gorsuch that the justices could interpret the law based on an ordinary meaning, suggesting that they didn’t need to follow a highly specific or technical interpretation of terms in the statute.
Justice Sonia Sotomayor pressed Peter Patterson, an attorney for the respondents, on how to determine when gun components can be regulated. She suggested that he conceded a key point on this issue by noting that some kind of legal test was necessary for determining whether components could be regulated.
Barrett told Patterson that his proposed test for determining whether regulation was lawful seemed “a little made up” and that it wasn’t mentioned in the relevant statute.
Mountain States Legal Foundation, which brought the initial case, held a press conference outside of the courthouse.
Michael McCoy, an attorney with the organization, emphasized the importance of separation of powers and accused the ATF of exceeding its authority. He told The Epoch Times that if Congress passed a law banning privately made firearms, it would face a constitutional challenge.
“Then again,” he said, “I think that would be a difficult constitutional challenge because in the past, the courts have upheld serialization requirements [and] background check requirements.”
Legal History
Sotomayor said past agency letters had similar language to what ATF used more recently.“ATF has always looked at whether [the gun] reached a critical stage of manufacture,” Prelogar told Sotomayor.
Justice Clarence Thomas questioned Prelogar about her claim that this issue had encountered regulation for years. “It wasn’t regulated in this way for half a century,” Thomas said.
Prelogar agreed that the ATF’s approach was a change to prior practice but defended the new rule, stating that the agency consistently focused on how quickly an individual could make a frame or receiver operational.
Barrett and Gorsuch both questioned the meaning of the statute in relation to its history.
Barrett, for example, asked Prelogar to confirm that at the time of the law’s passage in 1968, people tended not to buy machine guns or grenades whole and purchased components due to regulations.
The Biden administration’s rule redefines firearms to include weapons parts kits that “may readily be converted, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.”
Alito asked Prelogar multiple questions, including whether weapons kits were common at the time of the statute’s passage. He also asked about the term “readily convertible” and the level of expertise, among other things, that was taken into account when considering when the law applies.
Prelogar said “readily convertible” should be interpreted based on how long a “novice” would take to convert certain items. Patterson said he worried that an expansive definition of “readily converted” could “wreak havoc” with firearms laws.
Gun Ownership
McCoy told The Epoch Times that there was a relevant distinction between merely assembling firearms and converting items through some kind of manufacturing process.“They want to regulate all aspects of the commercial firearms market—fine, that has been upheld by the court previously,” he said.
“Now they want to get into this area where it’s privately made firearms—individuals who just simply want to continue the tradition and history of producing their own firearms. And why that concerns me is because that’s sort of the last untested threshold for regulation.”
Justice Brett Kavanaugh told Prelogar that her statutory interpretation had “some force,” but that he worried about mens rea, or the idea that criminals are aware that they’re committing a crime.
Kavanaugh told Prelogar that ATF had broadened the statute in question and wondered what kind of “assurances” Prelogar could offer. Prelogar told Kavanaugh that the point of the agency was not to play a game of “gotcha” in prompting criminal prosecution.
Prelogar’s opening statement described the law’s requirements as “crucial to solving gun crimes and keeping guns out of the hands of minors, felons and domestic abusers.”
She added that the “untraceable guns are attractive to people who can’t lawfully purchase them or who plan to use them in crimes.”
