Ghost guns

Does the ATF have the authority to regulate ghost guns? Viewpoints from multiple sides.

Oct 11, 2024

Snippets

The US consumer price index (CPI) increased 0.2% for September, putting the annual inflation rate at 2.4%, a continued cooling but 0.1% higher than expectations. Jobless claims for the week ending Oct 5 rose to 258,000, the highest since Aug 5 2023, with some observers blaming Hurricane Helene and recent labor strikes.
Hurricane Milton made landfall in Florida as a Category 3 storm before weakening to Category 1. At least 16 people have died and at least 3 million were without power with relief efforts ongoing.
Nasir Ahmad Tawhedi, an Afghan national living in Oklahoma on a Special Immigrant Visa, was arrested and charged with plotting an election-day terrorist attack on US soil. He reportedly previously worked as a security guard for the CIA in Afghanistan.
The US Department of Justice said it was considering a forced breakup of Google, which could require Google to spin off business units such as its Chrome browser or Android operating system. A federal court ruled in August that Google holds an illegal monopoly in online search. (See our previous coverage.)
The Georgia Supreme Court reinstated the state’s 6-week abortion ban after a lower court reversed it last week. The ruling left intact the lower court’s blocking of access to abortion patient medical records by district attorneys.

What’s happening

The Supreme Court heard oral arguments this week in Garland v. VanDerStok on the regulation of “ghost guns,” unserialized firearms that are assembled from separate components or a weapon parts kit.

The case centers around a new 2022 rule implemented by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that requires dealers of weapon parts kits to adhere to the same regulatory standards as sellers of commercial firearms. Those requirements include conducting background checks on kit buyers, adding serial numbers to make the parts traceable, and obtaining federal licenses to sell them.

How we got here: A group of gun owners and manufacturers appealed the ATF’s 2022 rule and the Fifth US Circuit Court of Appeals ultimately blocked it on grounds it exceeded the ATF’s statutory authority under the Gun Control Act of 1968 (GCA).

In 2023, the Supreme Court ruled 5-4 to pause that lower court decision, enabling the new rule to go into effect while it considers the case, bringing us to this week’s arguments.

What is a “firearm”: The ATF justified its 2022 rule by saying weapon parts kits fall under the GCA’s definition of “firearm,” giving it authority to regulate them. That definition is as follows:

“(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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.”

The language of part (B), focused on the frame or receiver, has become a focal point in the case. Frames or receivers are essentially the skeletal parts of guns that house their core firing mechanisms. Part of the debate centers on whether components that can be converted into frames or receivers count as frames or receivers.

What’s next: Observers note the Supreme Court seems poised to side with the ATF based on the context of the proceedings, with a ruling expected by summer 2025. Earlier this year, in a decision favorable to gun rights advocates, the Supreme Court ruled 6-3 to overturn the ATF’s ban on bump stocks, gun components that enable semiautomatic weapons to fire at rates similar to machine guns. (See our coverage of the bump stock ruling here.)

The ultimate decision in this case stands to have a significant impact on US gun regulation and perceptions of the Court’s stance on the scope of federal agency authority. This week, we bring you the viewpoints from multiple sides. Let us know what you think.

Notable viewpoints

Opposed to the ATF’s 2022 rule:

The ATF’s 2022 rule exceeds its statutory authority.

Congress did not authorize the expansion of firearm regulation or expand the definition of “firearm;” therefore the ATF’s 2022 rule is in direct opposition to Congress’s will in creating the Gun Control Act of 1968 (GCA).
The Biden administration’s ATF is attempting to enforce a rule that is outside its statutory authority given to it by Congress; Congress has the constitutional power to write laws and federal agencies have the power to enforce them, not write them.
“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.” (Zack Smith and Jack Fitzhenry, Daily Signal.)

The ATF’s 2022 rule stretches reasonable interpretation of the Gun Control Act.

The defense (i.e., ATF) argues a “weapon parts kit” that can be used to assemble a firearm is covered under the GCA’s definition of a “firearm” partly because the GCA definition includes a “weapon…which…may…be converted to expel a projectile.” Their logic conflates the text, however, replacing the term “weapon” from the GCA definition with the term “weapon parts kit.” The GCA says nothing about a “weapon parts kit.”
While the defense argues a hypothetical scenario of a person buying an “omelet-making kit” containing all of the ingredients and instructions for making an omelet at Trader Joe’s could be said to have bought an omelet, such a statement is a stretch. That person, in fact, bought an omelet-making kit, akin to a weapon parts kit. The GCA does not refer to just any “thing” (or ingredient) that can be converted into a firearm, it refers specifically to a “weapon” that can be converted into a firearm.
The ATF’s 2022 rule relies on an interpretation of what “readily converted” means. While the defense contends gun kits can be assembled to be functional in as little as 20 minutes, former Acting Chief of the ATF's own Firearms Technology Branch (FTB) Rick Vasquez says that individuals assembling a gun need patience, tools, and skills that exceed those of the average person.

Frame or receiver components aren’t the same as frames or receivers.

The defense argues a component that can be converted into a frame or receiver through further manipulation (e.g., drilling holes and/or removing parts) qualifies as a frame or receiver. This argument is problematic because the GCA says nothing about converting something into a frame or receiver; their argument takes wording from a separate part of the GCA’s “firearm” definition (part A, which is about a “weapon” that can be converted into something that fires a projectile) and tries to apply it to another part (part B, which is about a “frame or receiver,” not a part that can be converted into a frame or receiver). (Summarized from attorney Peter Patterson, representing the gun owners and manufacturers, in oral arguments.)
The defense’s argument that an unfinished frame or receiver qualifies as a frame or receiver is problematic because it contradicts previous stances taken by the ATF that unfinished frames or receivers don’t meet the definition of “firearm.” (Summarized from attorney Peter Patterson, representing the gun owners and manufacturers, in oral arguments.)

Supportive of the ATF’s 2022 rule:

Loose regulation of weapon parts kits makes it too easy for criminals to acquire guns.

Crimes from ghost guns have risen sharply in recent years, with the ATF reporting a 1,000% increase in crimes that used ghost guns between 2017-2021; the number of ghost guns collected at crime scenes decreased in 2023 after the ATF implemented its new rule.
It is critical to regulate “untraceable guns” that enable people otherwise unable to purchase firearms from easily assembling them and using them in a crime. (Summarized from Solicitor General Elizabeth Prelogar, representing the ATF, in oral arguments.)
With some gun manufacturers publicly touting their weapon parts kits as circumventing existing law, the ghost gun industry is clearly designed to dodge prosecution and equip people with untraceable weapons.

The ATF’s 2022 rule falls within a reasonable interpretation of the Gun Control Act.

In line with the GCA’s language, a weapon parts kit that can be easily converted to function as a gun is a covered firearm and should be within the ATF’s authority to regulate. (Summarized from Solicitor General Elizabeth Prelogar, representing the ATF, in oral arguments.)
“Should so-called ghost guns — assembled at home from kits in as little as 20 minutes — be counted as guns for purposes of federal law? If you have an ounce of common sense, the answer is obviously yes…The definition specifically includes ‘the frame ... of any such weapon.’ And the undoubted purpose of the law is to protect Americans from untraceable guns being used in crimes.” (Noah Feldman, Bloomberg.)
The GCA emphasizes the term “readily converted,” and manufacturers of weapon parts kits frequently advertise they can be assembled into weapons in as little as 15 minutes. Such speed and simplicity of assembly can be accurately equated to “readily convertible” into a firearm. (Summarized from Solicitor General Elizabeth Prelogar, representing the ATF, in oral arguments.)

Frame or receiver components are the same as frames or receivers.

The plaintiffs (i.e., gun owners and manufacturers) argue that weapon parts kits do not include a “frame or receiver” covered under the GCA because the components are incomplete and require a user to drill holes into them in order to convert them into functioning frames or receivers. This argument is a stretch – these parts are easily manipulated to become fully functioning frames or receivers and therefore should be covered under the GCA’s “firearm” definition. (Summarized from Solicitor General Elizabeth Prelogar, representing the ATF, in oral arguments.)
It is often very easy to convert an incomplete frame or receiver into a fully functioning frame or receiver; some kits require the drilling of a single hole or sanding off a single piece of plastic.

Other viewpoints:

The conservative-majority Supreme Court’s potential siding with the administration on ghost guns would be a departure from its more conservative rulings on other gun laws (e.g., bump stocks), suggesting some unpredictability with this Court.
Given the Supreme Court’s recent emphasis on textualism, the Court will ultimately have to conclude that a component that can easily be turned into a gun frame is, in fact, a gun frame in order to rule in favor of the ATF.

From the source

Music on the bottom

A certain Netflix hit has this pop-romantic jam by Francis and the Lights, “See Her Out (Thats Just Life),” back in the zeitgeist. Enjoy.

Listen on Spotify, Apple Music, or Amazon Music.

Michael Thompson

Oct 12

It appears that the plaintiffs have some valid arguments about the ATF's stretch of the language in the GCA's defintion of a firearm. If the current Supreme Court rules in favor of the ATF, they would have to depart slightly from their strict relaince on text to adopt a position based more on common sense. It would also seem to be taking the opportunity - in a case that clearly even the right leaning members of Congress should have little stake - to appear less political in its rulings; a sort of bone to throw at the left? The case is a good example of how the composers of a piece of legislation cannot reasonably anticipate every future scenario that might cause disagreement as to the legislation's applicability. Great topic!

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