Ghost guns at Supreme Court: The ATF once again seeks an expansive view of its own authority

It’s like déjà vu all over again.

Another Supreme Court term has started and another government agency finds itself before the justices trying to justify taking an expansive view of its own authority.

In Garland v. VanDerStok, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) seeks to defend a rule it promulgated two years ago expanding its ability to regulate so-called ghost guns and their parts by expansively interpreting certain terms in—and adding others to—the Gun Control Act of 1968.

For those unfamiliar, ghost guns are guns, or gun parts, that can be assembled from online kits and typically do not have serial numbers because the manufacturers argue that these items are not covered by the Gun Control Act’s definition of a “firearm.”

That act defines a “firearm” as “(A) 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] (B) the frame or receiver of any such weapon.”

But the Gun Control Act does not define what constitutes a frame or receiver. And from shortly after the act’s enactment until 2022, the ATF had defined those terms by regulation as “that part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward position to receive the barrel.”

That changed in April 2022 when the ATF promulgated its new rule. As counsel for the challengers explained:

The Rule added to the definition of firearm in two pertinent respects. First, the Rule expanded the definition of frame or receiver to include precursors that “may readily be . . . converted to function as a frame or receiver.” Second, the Rule expanded the definition of firearm to include weapon parts kits that “may readily be . . . converted to expel a projectile by the action of an explosive.” The Rule also changed the regulatory definition of frame or receiver to require housing only of the breechblock (for receivers) or one component of the firing mechanism (for frames.

Several entities and individuals challenged this new rule, and both the district court and the 5th Circuit Court of Appeals agreed with the challengers that the ATF exceeded its authority in promulgating this rule. The Supreme Court then granted the Biden-Harris Justice Department’s petition to hear the case, which it did on Tuesday, Oct. 8th.

At oral argument Solicitor General Elizabeth Prelogar (the Biden-Harris administration’s lawyer) made much of the supposed ease with which criminals might buy ghost-gun kits to avoid the background checks and serial numbers required for buying a fully assembled firearm. She continued that no sensible reading of the law would deprive the ATF of authority to regulate ghost guns because such a reading would defeat the congressional purpose behind the Gun Control Act.

That summed up the administration’s view of why the ATF’s regulation was desirable as a policy matter. But as Pete Patterson, representing the challengers, made clear, those policy concerns are for Congress to consider—not the ATF, which is simply supposed to implement and enforce the law that Congress has passed.

Justice Samuel Alito seemed concerned that the ATF is essentially trying to regulate components that could at some future point become a firearm but that themselves wouldn’t meet the statutory definition of a firearm. He asked whether his pen and blank paper could be considered the equivalent of a grocery list because it could become that at some point. He also asked whether putting “on the counter some eggs, some chopped up ham, some chopped up pepper and onions” could be considered the equivalent of a completed western omelet.

Prelogar said that standing alone, it couldn’t because those ingredients could be used to make other dishes too. But she said that if someone went to Trader Joe’s and bought an omelet-making kit that contained all the necessary ingredients and other helpful items to make omelets, it would fair to say someone bought omelets from Trader Joe’s. And by analogy, if someone bought a kit containing all, or most, of the components for making a firearm, those should be treated as the equivalent of the firearm itself.

The eventual ruling in this case will be interesting not only because of the implications for owning or making certain types of guns, but also because of how it will relate to two cases the court decided last term.

First, in Garland v. Cargill, in a 6-3 decision, the Supreme Court held that the ATF exceeded its authority by interpreting the term “machine gun” too expansively as to include bump stocks (which can cause semi-automatic firearms to function similarly to automatic firearms but in a mechanically different way). Here, like there, the VanDerStok challengers argue that the ATF has twisted the relevant statutory language and interpreted it too expansively.

Second, and more peripherally, is the Supreme Court’s momentous decision in Loper Bright v. Raimondo. There, the court rejected its longstanding practice of deferring to agency interpretations of law. While Loper Brightwas not a case about guns, its holding that courts must enforce only the best reading of a given law applies as forcefully to the Gun Control Act as it did to the Magnuson-Stevens Act in Loper Brightor to any other law on the books. And it constrains the ATF as much as any other agency. No more can agencies get by, arguing that their interpretation of the law is reasonable. Accordingly, Prelogar took pains to assure the court that the ATF had the “best” reading of the act, one that was based on the agency’s “longstanding” interpretation, which is another criterion whose relevance the Loper Bright decision has renewed.

At bottom, this case provides an opportunity for the court to consider whether administrative agencies like the ATF can grant themselves regulatory authority over new objects and items simply through their own reinterpretation and expansion of statutory terms. Here, the ATF has sought to use wordsmithing to exert control over gunsmithing in a way Congress never intended.

While it’s hard to predict how the court will ultimately rule, Chief Justice John Roberts and Justice Amy Coney Barrett both seemed sympathetic to the government’s arguments. And it would be difficult for the challengers to prevail without both of their votes.

Barrett seemed sympathetic to Prelogar’s meal-prep analogy asking if these gun kits could be thought of as similar to a HelloFresh meal-prep kit, which contains all of the needed ingredients and recipes for a given meal. And Roberts seemed skeptical during Patterson’s arguments that converting the gun kits into functional firearms could take significant skill. Roberts said, “my understanding is, is that it’s not terribly difficult for someone to do this, and it’s certainly not terribly difficult to take the plastic piece out [as required by some of these gun kits].”

While we don’t know when the Supreme Court will issue its decision in this case, we expect the decision no later than the end of the court’s term in June 2025.

[Editor’s note: This story originally was published by The Daily Signal.]

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