The Supreme Court Votes in Favor of Biden Administration’s Regulation on “Ghost Guns”
The Supreme Court has temporarily reinstated the Biden administration’s regulation on “ghost guns” – kits that can be purchased online and used to assemble untraceable homemade firearms. The court’s order did not provide any reasons for its decision, which is customary for emergency applications. The regulation will remain in effect while it goes through the legal challenge.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett aligning with the court’s liberal members – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. On the other hand, Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh filed dissenting opinions but did not provide an explanation for their reasoning.
The regulation, introduced by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in 2022, expanded the definition of “firearm” in the Gun Control Act of 1968. Solicitor General Elizabeth B. Prelogar argued in the administration’s emergency application that the regulation was necessary to address the growing public safety and law enforcement concerns surrounding untraceable firearms.
Prelogar clarified that the regulation did not ban the sale or possession of gun kits. Instead, it required manufacturers and sellers to obtain licenses, mark their products with serial numbers, and conduct background checks. However, gun owners, advocacy groups, and kit manufacturers challenged the regulation, arguing that it exceeded the authority granted by the 1968 law.
Judge Reed O’Connor of the Federal District Court for the Northern District of Texas ruled in favor of the challengers in July, declaring the regulation invalid. He argued that a weapon parts kit should not be considered a firearm, emphasizing that “it is not the role of the judiciary to correct [loopholes]; that is up to Congress.”
The U.S. Court of Appeals for the Fifth Circuit refused to stay key aspects of Judge O’Connor’s ruling. This prompted the Biden administration to submit an emergency application to the Supreme Court, where they made an analogy between gun kits and other assembly projects, like Ikea furniture.
The administration likened gun kits to Ikea selling boxes of parts and the tools to assemble bookshelves, stating that both would be subject to taxation. However, the challengers argued that a better analogy would be a “taco kit” sold at a grocery store, consisting of taco shells, seasonings, and toppings. They emphasized that, until the raw meat is cooked, it would be incorrect to call the kit a taco.
The two sides also disagreed on whether there has been an increase in homemade firearms. The government cited a significant rise in recovered firearms without serial numbers, while the challengers questioned the accuracy of the data and argued that firearms made by individuals for personal use do not contribute to higher crime rates.
Furthermore, the challengers criticized the use of the term “ghost guns,” considering it a propaganda tool that is not mentioned in federal law. They asserted that the phrase encompasses both legally manufactured firearms by individuals and those with illegally obliterated serial numbers.
While the Supreme Court’s decision reinstating the Biden administration’s regulation on “ghost guns” is provisional, it has given the administration a chance to defend the regulation in court. The outcome of this legal battle will have significant implications for the regulation of homemade firearms.