Even Supreme Court’s Right Wing Expresses Skepticism Towards Proposed Ghost Gun Free-For-All

While the conservative supermajority of the Supreme Court plainly wields an expansive view of gun rights (and a shrinkingly narrow one of agency power), it occasionally butts up against a plea for deregulation with ramifications too extreme for even these justices. 

Tuesday’s oral arguments in Garland v. VanDerStock seemed to fit that bill: a case where firearm parts makers are trying to get ghost guns — guns that can be assembled in minutes from a kit, often with minor modifications like drilling a hole or removing plastic — exempted from regulations mandating serial numbers and background checks. 

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), responding to an explosion in ghost gun use, clarified in a 2022 rule that gun regulations requiring serial numbers and background checks applied to these “readily convertible” kits too.

The gun-part makers, likely enticed by this Court’s hostility towards federal agencies, lobbed their argument that these kits are somehow entirely different from fully assembled guns, and shouldn’t be subject to those regulations. They may have been encouraged by a ruling from last term on bump stocks in which the Court’s conservatives found that bump stocks could not be regulated as machine guns, despite the fact that their sole purpose is to convert non-machine guns into them. 

Still, the conservatives seemed much less amenable to the pro-unregulated-guns argument this time. Chief Justice John Roberts all but smirked at the gun companies’ lawyer’s attempt to argue that hobbyists — and not just felons, minors and other people who would have trouble buying a gun legally — would derive great pleasure from assembling the kits.

“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,” he said dryly. 

When lawyer Peter Patterson countered with an anecdote of a reporter who struggled mightily to assemble the kit, Roberts brought the house down — or the Supreme Court equivalent of that (polite snickers from the courtroom crowd). 

“I don’t know the skills of the particular reporter, but my understanding is that it’s not terribly difficult for someone to do this,” he said to laughter. “It’s certainly not terribly difficult to take the plastic piece out — is that part of the gun smithing?” he asked sarcastically.

Justice Amy Coney Barrett, who seemed eager to differentiate this case from the bump stock one, was similarly openly derisive of Patterson’s proposed alternative to ATF’s standard for when these guns should be regulated, saying that it seemed “a little made-up.” 

Justice Samuel Alito, who could usually be counted on to help the gun lobby, served up a series of hypotheticals to Solicitor General Elizabeth Prelogar to try to make her argument — that these gun components are no different than a completed gun — sound silly. He mulled whether a blank pad of paper and a pen is a grocery list, whether the assembled ingredients constituted a western omelet. 

Justice Brett Kavanaugh, too, expressed excessive sympathy for gun manufacturers who simply don’t know the law and may break it accidentally, asking Prelogar for assurances that manufacturers who don’t keep up with the regulations of their industry won’t be criminally prosecuted.

Still, the conservatives’ attack was muted and half-hearted. Prelogar’s central warning, that allowing ghost gun makers to circumvent basic regulation here will incentivize all firearms manufacturers to similarly evade serializing and background checking, proved hard to dismiss. 

Justice Ketanji Brown Jackson, alone, articulated an agency power argument that reads as one made for history in a Court where the question isn’t whether the conservatives will further weaken the administrative state this term, but how aggressively they’ll do it.

“Justice Kagan talked about the problem of the agency potentially taking over what is Congress’ business, and I guess I’m worried about the different concern, which is about the Court taking over what Congress may have intended for the agency to do in this situation,” she said, the lone call for judicial restraint. 

“We just compare what the agency believes qualifies as a firearm with what we think qualifies as a firearm, and if the agency has something in its definition we wouldn’t have put there, we say the agency has exceeded its authority?” she asked. “Those seem not right to me.”