The Supreme Court voted 7–2 on March 26 to uphold the Biden administration’s rule regulating so-called ghost guns that can be constructed at home.
Gorsuch was joined by Chief Justice John Roberts, along with Justices Brett Kavanaugh, Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Sotomayor, Jackson, and Kavanaugh each filed concurring opinions.
Justices Clarence Thomas and Samuel Alito each filed dissenting opinions.
In October 2023, the Supreme Court reinstated the rule, which lower courts had blocked.
“Ghost gun” is a pejorative term used by gun control advocates to describe a homemade firearm that lacks a serial number and therefore can’t be tracked by law enforcement.
Although some states regulate homemade guns, gun control groups have been trying for years to ban or regulate homemade guns at the federal level but have failed to persuade Congress to act.
Then-President Joe Biden defended the rule, claiming that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”
The government’s “frame or receiver” rule dates to April 2022. It requires individuals who assemble homemade firearms to add serial numbers to them. The rule also mandates background checks for consumers who buy gun-assembly kits from dealers.
Gun components that are shipped qualify as guns subject to existing laws, the government argued.
In the majority opinion, Gorsuch wrote that the Gun Control Act of 1968 allows the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to regulate “some weapon parts kits and unfinished frames or receivers, including those we have discussed.”
After displaying a photograph of gun kit components supplied by seller Polymer80, he wrote: “Plainly, the finished ‘Buy Build Shoot’ kit is an instrument of combat. No one would confuse the semiautomatic pistol pictured above with a tool or a toy.”
The ATF rule includes background checks for buyers.
“Thousands of law-enforcement agencies nationwide depend on the [Gun Control] Act’s tracing system to link firearms involved in crimes to their owners,” Gorsuch wrote.
Citing evidence presented to the court, he wrote that sales of gun kits “have grown ‘exponentially,” and criminals “find them attractive.” This has led to “an explosion of crimes” involving ghost guns.
Law enforcement agencies reported in 2017 that they had “submitted about 1,600 ghost guns to the federal government for tracing,” Gorsuch noted.
“By 2021, that number jumped to more than 19,000. Efforts to trace the ownership of these weapons, the government represents, have proven ‘almost entirely futile,’” he said.
Describing the gun kit components as a weapon is justifiable, Gorsuch wrote.
The word “‘weapon’ is an artifact noun—a word for a thing created by humans,” he wrote. In everyday speech, people “sometimes use artifact nouns to refer to unfinished objects—at least when their intended function is clear.”
“An ordinary speaker might well describe the ‘Buy Build Shoot’ kit as a weapon, [even though] a half hour of work is required before anyone can fire a shot,” Gorsuch said.
The Supreme Court reversed a 2023 ruling of the U.S. Court of Appeals for the Fifth Circuit that held that the Gun Control Act did not allow the ATF to regulate homemade guns and returned the case to that court “for further proceedings consistent with this opinion.”
In his dissent, Thomas wrote that the majority in this ruling has inserted language into the statute that isn’t there.
In a 2024 case, the Supreme Court declined to “rewrite” statutory wording “so that it could regulate semiautomatic weapons as machineguns,” he wrote.
“The Government now asks us to rewrite statutory text so that it can regulate weapon-parts kits,” Thomas said. “This time the Court obliges.
“The statutory terms ‘frame’ and ‘receiver’ do not cover the unfinished frames and receivers contained in weapon-parts kits, and weapon-parts kits themselves do not meet the statutory definition of ‘firearm.’
“That should end the case. The majority instead blesses the Government’s overreach based on a series of errors regarding both the standard of review and the interpretation of the statute.”
Congress could have given the ATF authority “to regulate any part of a firearm or any object readily convertible into one,” but it failed to do so, he said.
“I would adhere to the words Congress enacted,” he wrote.
The justice noted that the artifact noun methodology adopted by the majority was “novel” and “invites unforeseeable consequences and offers no limiting principle.”
