Potential swing members of the Supreme Court’s conservative majority seemed receptive Tuesday to the Harris-Biden administration’s arguments defending its regulation of so-called ghost guns.
At issue before the high court was a regulation mandating manufacturers of gun kits to comply with rules for typical firearms under the Gun Control Act of 1968 including mandating they have serial numbers, among other requirements. Plaintiffs essentially argued that the administration had stretched the meaning of the law.
But during oral arguments, US Solicitor General Elizabeth Prelogar, who defended the policy, largely seemed to satisfy questions from Justices Amy Coney Barret and Brett Kavanaugh, in particular.
“[Plaintiffs] claim that if a firearm isn’t 100% functional, if it’s missing just one hole that could be drilled in seconds and immediately assembled into a working gun, that product can be sold to anyone online with no background check, no records, and no serial number,” Prelogar argued.
“That contradicts the [Gun Control Act] Act’s plain text, and it also contradicts common sense.”
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives brandished the regulation in 2022 that requires manufacturers and distributors of gun kits to add serial numbers, ensure that purchasers are 21 years or older and conduct background checks in keeping with the Gun Control Act.
The case was not focused on the Second Amendment.
“Here’s a blank pad and here’s the pen. All right. Is this a grocery list?” Justice Samuel Alito asked Prelogar at one point.
“I don’t think that that’s a grocery list. But the reason for that is because there are a lot of things you can use those products for to create something other than a grocery list,” Prelogar shot back.
After a back-and-forth using the example of a grocery list and as well as another about ingredients that could be used to cook an omelet, Alito concluded the line she drew was over a “group of components that can readily be converted into something and have no other use.”
“What about the [ghost gun] seller who is truly not aware they are violating the law and get charged,” Kavanaugh asked.
Prelogar countered that the rule requires offenders to show willfulness.
Barrett pointed to prior court deliberations in which there were concerns that “AR-15 receivers can be readily converted into machine gun receivers” and that “this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal.”
“That is wrong,” Prelogar shot back. “We are not suggesting that a statutory reference to one thing includes all other separate and distinct things that might be readily converted into the thing that’s listed in the statute itself.”
When it came time for attorney Pete Patterson, who represented the plaintiffs in the case, justices seemed skeptical and he seemingly struggled to allay their concerns.
One of the key arguments Patterson made is that a better standard for ATF instead of readily convertible would be “critical machining,” contending that gun kits may not necessarily “readily be converted” into a firearm.
“It doesn’t appear in the statute. It seems a little made up right?” Barret asked at one point, referring to Patterson’s critical machining test.
Patterson effectively countered that his “critical machining” test came from longstanding practice and understanding of the law.
He also argued that hobbyists have long been able to see gun parts. Prelogar later hit back at that, stressing during her rebuttal that those kits “can be sold to hobbyists — you just have to comply with the requirements of the Gun Control Act.”
The text of the Gun Control Act refers to “any weapon…which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” as well as “the frame or receiver of any such weapon.”
“Congress in the Gun Control Act did not seek to pursue its purposes of controlling access to firearms to the nth degree and notably, Congress did not regulate the secondary market for firearms, and that secondary market is a much bigger source of firearms for criminals than privately made firearms,” Patterson argued.
President Biden pushed for the ghost gun rule over concerns about law enforcement seizures of ghost guns exploding over recent years.
In 2018, for instance, authorities confiscated fewer than 4,000, but by 2021 that exploded to roughly 20,000, per Justice Department data. Just shy of 700 homicides were linked to those guns.
The spread of ghost guns in the time since appears to have dropped considerably in the wake of the regulation, according to court documents.
Gun rights organizations and manufacturers mounted a challenge based on Jennifer VanDerStok and Michael Andren, citizens who possessed components and wanted to construct guns out of them.
Last year, a district judge in Texas sided with the plaintiffs in Garland v. VanDerStok and nixed the federal rule. Later during an appeal, the very conservative US 5th Circuit Court of Appeals largely upheld that ruling, teeing up the challenge before the Supreme Court.
This would not be the first time that a 5th Circuit Court ruling has gone too far for the conservative-majority US Supreme Court.
Garland v. VanDerStok is one of the most high-profile cases pending before the high court during its current term which kicked off Monday.
The Supreme Court has generally leaned in favor of gun rights groups over recent years. In June, for example, the high court overturned a Trump-era ban on bump stocks, enhancements that enable a semi-automatic weapon to unleash gunfire quickly without having to pull the trigger directly each time.
Also in June, the Supreme Court upheld a law that restricted individuals with certain types of restraining orders from owning firearms.
