Most Justices Seem Inclined To Uphold the ATF’s New Restrictions on Homemade Firearms
The Supreme Court on Tuesday considered whether the Biden administration’s restrictions on homemade firearms are consistent with the Gun Control Act (GCA) of 1968. As with the Trump administration’s ban on bump stocks, which the Court rejected in June, the issue is not whether the rule violates the Second Amendment but whether it exceeds the authority that Congress gave the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Unlike in that case, however, most of the justices seem inclined to uphold the new regulations, which the ATF began enforcing in August 2023 after the Supreme Court temporarily blocked a ruling that vacated them.
The ATF’s final rule, which was published in April 2022, is aimed at banning what the administration calls “ghost guns,” which are assembled from commercially available kits. Under prior regulations, manufacturers and sellers of those products did not have to obtain federal licenses, mark the parts with serial numbers, or conduct background checks on buyers. The new rule applies all three requirements to “any kits or nearly complete frames or receivers that can be readily converted into a firearm.”
Defending the rule, Solicitor General Elizabeth Prelogar told the Supreme Court it was necessary to control “untraceable guns” that “are attractive to people who can’t lawfully purchase them or who plan to use them in crimes.” Thanks to the availability of “easy-to-assemble kits and frames and receivers that require minimal work to be made functional,” she said, “our nation has seen an explosion in crimes committed with ghost guns.”
Whatever you make of that policy argument, it is distinct from the legal question of whether the ATF has the statutory authority to ban “ghost guns.” Congress may be free to crack down on the kits and parts that worry Prelogar, but that does not necessarily mean the ATF can do so without new legislation. The agency’s attempt to do so hinges on the legal definition of “firearm,” which is what triggers the licensing, serial number, and background check requirements.
The GCA’s definition of “firearm” covers “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 covers “the frame or receiver of any such weapon.” The law does not define “frame or receiver.” But as Peter Patterson, the attorney representing the individuals and gun rights groups that challenged the ATF rule, explained to the Court, “a frame or receiver is basically the part of a firearm that holds the components that allow a firearm to function, so the firing mechanism, the trigger and such, and the sealing component that makes sure that the barrel is sealed off so that the round goes out of the barrel and the energy from the explosion doesn’t go elsewhere.”
Under the ATF rule, Prelogar said, “a weapon parts kit that can readily be converted to function as a gun with common tools, often in under an hour, is a covered firearm.” That interpretation seems counterintuitive, since the ATF is equating “a weapon parts kit” with what the GCA describes as a “weapon.”
Under the same logic, Justice Samuel Alito wondered, would “a blank pad” and “a pen” constitute “a grocery list”? No, Prelogar said, “because there are a lot of things you could use those products for to create something other than a grocery list.”
Alito tried a different hypothetical. Suppose “I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper and onions,” he said. “Is that a Western omelet?” Again no, Prelogar replied, because “those items have well-known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat,
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