Supreme Court Rules ‘Ghost Guns’ May Be Regulated by 1968 Gun Control Act

On March 26, the Supreme Court ruled in a 7-2 opinion that, “…some weapon parts kits and unfinished frames or receivers” are firearms subject to regulation by the ATF under the Gun Control Act of 1968.

The 63-page decision in Bondi v. Vanderstok, addresses a challenge to the 2022 rule that the ATF imposed attempting to regulate so-called “ghost guns,” which the ATF defined as, weapon parts kits that are “designed to or may readily be converted to expel a projectile.” The briefest version of the Supreme Court’s opinion is that, “The ATF’s rule is not facially inconsistent with the GCA.” (Why the Supreme Court prefers to use double negatives is anyone’s guess.)

Importantly, this case does not address the Constitutionality of the Gun Control Act itself, which conservatives have long argued is unconstitutional.

Judge Gorsuch delivered the opinion of the Court, joined by Justices Roberts, Sotomayor, Kavanaugh, Barrett, and Jackson. Justices Sotomayor, Kavanaugh and Jackson each filed concurring opinions, while only Justices Thomas and Alito filed dissenting opinions.

The implication of the ruling is that firearms parts kits now require serial numbers and background checks (the case has been reversed and remanded to the lower court).

In an ironic twist, the Supreme Court begins its opinion with a historical analysis of the Gun Control Act linked to what we now know is likely a government-facilitated murder:

Shortly after the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. stunned the Nation, Congress adopted the Gun Control Act of 1968 (GCA). Existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily.

The Supreme Court decision acknowledges the two lower courts’ pro-Second Amendment rulings on the ATF rule (see our reporting on the 5th Circuit ruling here):

At summary judgment, the district court agreed with the plaintiffs and vacated the agency’s new rule. On appeal, the Fifth Circuit largely affirmed.

So, why did those courts get it wrong, as this is ultimately a facial challenge to Administrative Procedural Act (APA) cases?

The Supreme Court rejected the “facial challenge” argument put forth by gun manufacturers:

As presented to us, this case does not ask us to resolve whether ATF’s new regulations in §478.11 and §478.12 may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a “facial” pre-enforcement challenge to the agency’s authority to regulate any weapon parts kits or unfinished frames or receivers. In a challenge like that, the government represents, “the possibility that [ATF’s regulation] may be invalid as applied” in some cases “does not mean that the regulation is facially invalid.”

Section 478.11’s provisions addressing weapon parts kits are not facially invalid under §921(a)(3)(A). That subsection contains two requirements: a “weapon” must be present, and that weapon must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. Some weapon parts kits meet that description.

And this facial challenge revolves around the government’s clever use of “artifact nouns” in determining what a weapon is:

The term “weapon” is an artifact noun—a word for a thing created by humans. Artifact nouns are typically “characterized by an intended function,” rather than by “some ineffable ‘natural essence.'”

The ultimate question is just how far along does a parts kit need to be to qualify as a firearm. The court reaches for analogies, just as it did in oral arguments:

Think of the problem of the heap: Start with a heap of sand and begin removing grains; at some point, a heap no longer exists. That problem attends many artifact nouns. Even when used to capture unfinished products, artifact nouns generally reach only so far. It would be extravagant to speak of a novel when the author has dashed off only a few lines.

Even the Supreme Court recognizes that there are limits on the reasoning behind this decision:

Admittedly, our reasoning here has its limits. Just because some kits, like Polymer80’s, qualify as “weapons” that “can readily be converted” into working firearms does not mean all do.

But the court doesn’t seem to be too concerned with the unintended consequences of such a decision:

While we recognize the problem, this case does not require us to untangle exactly how far subsection (A) reaches. The plaintiffs argue only that §478.11’s provision addressing weapon parts kits is facially inconsistent with the statute.

Extremely problematic is Justice Kavanaugh’s “trust the government” approach:

…at oral argument, the Government represented that it would “likely” decline to “charge someone” for a background-check violation in the “kind of situation” where the individual was not aware that he was violating the law. I expect that the Government will seek to avoid that potential fairnotice problem by adhering to its oral-argument representation that it would likely decline to bring charges in those circumstances.

The dissenting opinions offer a great deal of insight into the minds of the two pro-Second Amendment Justices. Justice Thomas’s dissent is 25 pages long and he summarizes:

Congress could have authorized ATF to regulate any part of a firearm or any object readily convertible into one. But, it did not. I would adhere to the words Congress enacted. Employing its novel “artifact noun” methodology, the majority charts a different course that invites unforeseeable consequences and offers no limiting principle. I respectfully dissent.

Justice Alito summarized his view of the case this way:

The Court decides this case on a ground that was not raised or decided below and that was not the focus of the briefing or argument in this Court.

What do we make of this ruling? Second Amendment scholar and host of the Four Boxes Diner YouTube channel, Mark Smith, wrote the following on X:

But this is NOT a major loss for 2A or gun rights. First, it is not a 2A case so it does [not] matter at all to Heller/Bruen analysis. Second, SCOTUS clearly left open the door for Trump to repeal the Biden ATF regulations (or even rewrite them in a very favorable way for the “home-made gun” industry–I have ideas). In fact, this ruling is extremely narrow.

The Second Amendment Foundation made the following statement on X:

In denying Plaintiffs’ facial challenge and upholding the rule the Court notably left the door open for future as-applied challenges.

Firearms Policy Coalition made the following statement:

We are disappointed with the Supreme Court’s misguided decision but recognize this is only one battle in a multi-generational war over the scope of government and pre-existing right to keep and bear arms.