Citing omelets and chili, justices seem poised to uphold ghost gun rules

The Supreme Court seems likely to uphold a major gun regulation imposed by the Biden administration that requires background checks, serial numbers and sales records for the nearly untraceable firearms known as ghost guns.

A majority of the justices seemed skeptical during oral argument on Tuesday of the position taken by gun owners, parts makers and Second Amendment groups: that the government exceeded its authority in 2022 when it imposed new rules for the weapons.

Ghost guns, which have been used in a growing number of crimes over the past decade, are typically assembled at home using parts, kits or pieces printed by 3D printers. Manufacturers say they don’t have to comply with regulations on other guns sold commercially because ghost guns don’t meet the legal definition of a firearm under the nation’s main gun control law and are marketed for hobbyists.

Chief Justice John G. Roberts Jr. expressed incredulity at the latter idea, given how easy it is to assemble some ghost guns.

“I mean, drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends,” Roberts told an attorney for the plaintiffs in the case, known as Garland v. VanDerStok.

A decision upholding the Bureau of Alcohol, Tobacco, Firearms and Explosives rules for ghost guns would be a departure for the high court, whose conservative supermajority has been generally skeptical of gun regulations and issued a landmark 2022 ruling that made it far easier to challenge restrictions.

Solicitor General Elizabeth B. Prelogar argued the ghost gun rules were consistent with more than 50 years of firearms regulation and said not treating ghost guns like others made by licensed manufacturers is dangerous.

“Our nation has seen an explosion in the crimes committed by ghost guns,” Prelogar said.

In 2017, police submitted about 1,800 ghost guns for tracing. That number rose to more than 19,000 in 2021, according to the Justice Department. The 2021 figures included weapons linked to nearly 700 homicides or attempted homicides. Without serial numbers and purchase records, law enforcement officials said, less than 1 percent of those ghost guns could be traced.

The lack of background checks for ghost guns allowed people barred from owning weapons, such as felons and young people, to purchase them with ease.

The ATF responded to the situation by issuing a new interpretation of the 1968 Gun Control Act, requiring ghost guns be regulated in the same way as other firearms sold commercially. Steven M. Dettelbach, the agency’s director, attended the oral argument on Tuesday.

Peter A. Patterson, who represented gun owners, groups and makers, told the justices ATF had gone beyond the scope of the law by redefining parts kits and partially assembled bodies of weapons as equivalent to finished firearms. Patterson said that as recently as 2021 the government held in a court brief that gun pieces did not meet the definition of a firearm.

“There definitely has been a sea change here,” Patterson said.

He also pushed back on the notion that ghost guns were as easy to assemble as the government claimed.

In ruling on the case, the justices will have to answer two specific questions: whether weapons parts kits that can be readily assembled count as guns under the Gun Control Act, and whether a partially completed frame or receiver - the body of the firearm that holds the firing mechanism and barrel - can be regulated under the same law. The case does not directly implicate Second Amendment rights.

The Gun Control Act defines a firearm as “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.” It also includes the “frame or receiver” of a weapon, but Congress didn’t define those terms when it passed the law.

The justices spent much of the oral argument grappling - in sometimes colorful and humorous terms - with when a partly assembled gun may be considered a firearm under the law and how much work qualifies as “readily converted.” Prelogar, arguing on behalf of the Biden administration, said ghost gun kits were analogous to tennis rackets without the strings or bicycles without pedals. Anyone would classify them as guns, she said, even though they were not fully assembled.

But Justice Samuel A. Alito Jr., a conservative, raised questions about what fell under the legal definition of a firearm. At one point, he held up a yellow legal pad and pen and asked: “Is this a grocery list?” He went on to ask whether eggs, chopped ham, peppers and onions could be considered a western omelet.

Prelogar said no, because the ingredients could be used to make other things.

Justice Amy Coney Barrett, also a conservative, followed up as the discussion approached the lunch hour: “Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?”

Prelogar said that was a better comparison, since the kit is intended to be made into chili.

At another point, Alito noted the “readily converted” language in the Gun Control Act and asked Prelogar how much assembly time for ghost guns would fit within that definition.

“Some of us who are not — who don’t have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we’ve purchased,” he quipped.

“I’m with you on that one, Justice Alito, as someone who struggles with Ikea furniture,” Prelogar joked in response.

Justice Sonia Sotomayor, a liberal, seemed to embrace the government’s contention that ghost guns were fit to be regulated under the law, citing ATF letters back to 1978 that used similar language as the new rules. But conservative Justice Clarence Thomas was more skeptical, saying ATF “wasn’t regulating in this way for half a century.”

A federal judge in Texas granted a summary judgment last year to the plaintiffs challenging the law, and the conservative 5th Circuit Court of Appeals upheld the lower court’s ruling. The government then asked the Supreme Court to take up the case.

The justices ruled 5-4 to allow the ghost gun regulations to take effect while the case plays out. Roberts and Barrett sided with the court’s three liberals, signaling they might be inclined to uphold the regulations when the high court issues its ruling.

Nearly two dozen states and the District of Columbia filed a friend of the court brief arguing that the federal ghost gun regulations complement their own efforts to regulate the weapons and have led to a decrease in how often ghost guns are found at crime scenes.

“Indeed, without meaningful federal oversight, unserialized guns have increasingly fallen into the hands of prohibited persons, with often deadly results,” the states and D.C. wrote.

A decision in the case is expected before the term ends in June.