The Supreme Court announced Monday it will take up a dispute over ghost guns — firearms that can be assembled and lack serial numbers — during its next term.
The Biden administration had asked the justices to review a case in which a federal appeals court struck down a federal regulation governing sale of kits to make ghost guns, saying it stretched the definition of “firearm” found in the Gun Control Act of 1968.
Justice Department lawyers say ghost guns have turned into an end-run around federal gun controls, allowing “anyone with access to the internet to anonymously buy a parts kit or partially complete frame or receiver that can be assembled into a working firearm in as little as 20 minutes.”
Gun-rights advocates say if that’s what the government wants to do, it must pass a new law. But it cannot stretch the 1968 law that far.
“Americans have always had the right to make personal firearms without Presidential permission. The Second Amendment both stems from and protects this right, which has utmost support in the nation’s history and tradition,” they argued in their filing, urging the justices not to take the case. “There is no historical tradition of regulating, let alone criminalizing, the self-manufacture of firearms.”
The question before the justices is at what point something becomes a firearm.
Under the 1968 law a firearm is “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.” The law also applies to “the frame or receiver of any such weapon.”
Firearms sold in commerce are required to have serial numbers so they can be traced.
Troubled by the availability of firearm parts kits and the proliferation of internet videos showing how to complete them in minutes, the Biden administration announced a regulation in 2022 that reinterpreted the 1968 law to cover the kits.
The Bureau of Alcohol, Tobacco, Firearms and Explosives says has long considered frames or receivers that could be made operable through a few quick alterations to be firearms, and said that’s what the kits amount to.
ATF’s rule was challenged by gun-rights groups and companies that sell kits.
They won injunctions at the district court and again at the appeals court. The Supreme Court stayed the injunctions, allowing the rule to take effect while it’s being litigated.
The federal government argued that it’s nearly impossible to track unserialized guns, noting that from 2016 to 2021, 45,240 were collected but only 445 were traced to individuals by law enforcement.
“Police departments around the Nation confronted an explosion of crimes involving ghost guns. In 2017, law enforcement agencies submitted roughly 1600 ghost guns to [Bureau of Alcohol, Firearms, Tobacco and Explosives] for tracing. By 2021, that number was more than 19,000 — an increase of more than 1000% in just four years,” the feds said in their filing.
The case is the latest in a string of gun cases en route to the justices. They heard oral argument earlier this term on the constitutionality of a federal law prohibiting those with domestic violence-related restraining orders from purchasing a firearm.
And cases involving bans on drug users and illegal immigrants obtaining weapons are percolating in circuit courts.
Cody J. Wisniewski, president of the Firearms Policy Coalition Action Foundation, which is representing the gun-rights groups, hailed the justices’ decision to take the ghost guns case.
“By agreeing to hear our case, the Supreme Court will have the opportunity to put ATF firmly in its place and stop the agency from unconstitutionally expanding its gun control agenda,” Mr. Wisniewski said.
The case is Merrick Garland v. Jennifer VanDerStok.
Oral arguments are expected in the court‘s next term, which begins in October.