Supreme Court’s ‘ghost guns’ case could make criminals’ gun acquisition trivial

On Tuesday, October 8, a day after the justices convene for another term on the Supreme Court, the Court will hear a case that could open a huge gap in U.S. gun law. The plaintiffs in Garland v. VanDerStok ask the Court to effectively neutralize a federal law requiring gun buyers to submit to background checks, as well as a separate law requiring firearms to have a serial number to allow the forces to the order to follow the firearms.

The case concerns “ghost guns,” weapons sold disassembled and in ready-to-assemble kits. Three Trump appointees to the U.S. Court of Appeals for the Fifth Circuit previously concluded that guns sold in these kits were exempt from laws requiring background and serial number checks, allowing people convicted of violent crimes of obtaining weapons simply by purchasing them. them in a disassembled state.

According to the law, the background check and serial number requirements apply to “any weapon…which will or is designed to or can be readily converted to expel a projectile by the action of an explosive.” They also apply to the “frame or receiver of such a weapon,” the skeletal part of a firearm that houses other components, such as the barrel or firing mechanism. So, if someone purchases a set of gun parts with the intention of making a firearm at home, they must still undergo a background check when they purchase the frame or carcass of the weapon.

Ghost gun manufacturers seek to circumvent these requirements by selling a kit with an incomplete frame or receiver – although, according to the Department of Justice, it is often very easy to convert the incomplete part of the kit into a frame or receiver. fully functional receiver. Some kits can be transformed into a working firearm once the buyer drills a single hole in the kit’s frame. Others require the user to sand down a small plastic rail.

The Fifth Circuit upheld these attempts to evade the law. He said frames without a single hole are “not frames or receivers yet.” The three Trump judges also argued that the phantom weapon kits could not “readily be converted” into functional weapons, because that phrase “cannot be construed to include any object that could, if manufactured, become functional at an ill-defined moment in the process. future” – even though only a negligible amount of work is required to operate the weapon.

So the question now is whether a majority of this Supreme Court, which often takes a broad view of gun rights, will embrace this attempt to neutralize background check and serial number laws.

The good news for proponents of gun regulation is that the Court has already indicated that it will not do so. The Court first heard this case, albeit under an expedited process, in August 2023, and it voted to temporarily leave the background check and serial number requirements in effect while the case was progressing through the lower courts. The bad news is that the vote in that August 2023 decision was 5-4, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the Court’s three Democrats. So, if only one judge switches, the VanDerStok the plaintiffs could win their case.

VanDerStok ” raises the question of when a partially manufactured weapon becomes sufficiently similar to a firearm that it must be regulated as if it were a fully operational firearm. Congress, in applying relevant laws to operational weapons, frames, receivers, and items that “can readily be converted” into an operational weapon, clearly intended that a firearm need not be fully complete to be regulated.

At the same time, it is also clear that there comes a time when an incomplete gun is not yet subject to background check and serial number laws. For example, if someone buys a bucket filled with raw steel and wood that a skilled gunsmith, after many hours of work with the proper tools, could turn into a firearm, that bucket does not need to be sold. be accompanied by a background check.

Until recently, this question of “at what point does a firearm become sufficiently complete to trigger certain federal laws?” reportedly resolved by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In Chevron c. Natural Resources Defense Council (1984), the Supreme Court held that when an agency has the authority to issue regulations interpreting a federal law (and the ATF has this authority over the gun laws at issue in the case VanDerStok), courts should generally defer to how the agency decides to resolve ambiguities in this law.

Thus, in a less imperious Supreme Court, VanDerStok would be an easy case. The ATF issued a regulation in 2022 that clarifies that background check and serial number laws apply to ghost guns. Below ChevronThat should be enough to solve this case.

However, last June, all six Republican justices voted to overturn the decision. Chevron. Their decision in Loper Bright Enterprises v. Raimondo (2024) establishes that from now on, whoever controls the majority on the Supreme Court will have the final say on thousands of policy issues that, according to Chevronused to be resolved by federal agencies. SO VanDerStok will give us a first glimpse of how these judges intend to use their new decision-making power that they have given themselves.

If these judges are interested in the text of the federal firearms law, however, it is still difficult to see how they could uphold the Fifth Circuit’s decision to exempt ghost guns from the background check and license number requirements. series.

The reason is that federal firearms law does not simply announce a vague standard – that incomplete weapons that “can readily be converted to expel a projectile by the action of an explosive” are still subject to federal regulations. It also provides an example of a particular type of not-yet-ready-to-fire firearm that is subject to background check and serial number laws.

The relevant federal law explicitly states that a “starter gun” – that is, a gun with a stoppered barrel designed to fire blanks and which is typically used to start track or swim races – is considered as a federally regulated pistol. So if someone purchases a starter gun, they must undergo a background check, even though starter guns cannot be used to shoot someone without significant modifications.

In its brief, the Justice Department suggests that this reference to starter guns was inserted into the law because of a “do-it-yourself gunsmith” who “distributed firearms to gang members by purchasing starter guns in fat “. He would then disassemble these starter guns and “using a hand-held electric drill mounted on a drill press stand, drilled the plugged barrel and enlarged the cylinder chambers to accommodate .22 caliber cartridges.”

This is a lot more work than is required to assemble many ghost guns. The fact that Congress intended to regulate devices that must be disassembled and “pierced” using reasonably specialized equipment before they can be used as weapons suggests that Congress also intended to enact a weapon already dismantled which is missing a single hole in its frame or the receiver is subject to regulations. A ghost gun is much closer to a fully operational firearm than a starter gun.

However, while VanDerStok should not be a difficult case, the fact that four Justices have already voted to exempt ghost guns from background and serial number checks suggests that this Court will make this case more difficult than it needs to be.

By canceling Chevronthe Court said it should have far more control over American politics than it has had in recent decades. Now we’ll get a taste of how this GOP-dominated court intends to use that power.