U.S. Supreme Court Revives Ghost Gun Regulation

Ghost guns remain regulated in the United States for a while longer. The U.S. Supreme Court temporarily revived the Biden administration’s regulation of these firearms—kits that can be bought online and used to build untraceable homemade guns that lack serial numbers.

In a 5-4 decision, the Court reinstated the 2022 Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) rule that federal laws governing the sale of firearms—such as background checks and imposing recordkeeping obligations—also apply to ghost guns.

The regulation broadened ATF’s interpretation of the definition of “firearm” in the Gun Control Act of 1968 and required manufacturers and sellers of ghost gun kits or parts to obtain licenses, mark their products with serial numbers, and conduct background checks, The New York Times reported. The requirements would apply regardless of how the firearm would be constructed, either from individual parts, kits, or 3-D printers. The regulation did not ban the sale or possession of parts that could be assembled to make homemade guns.

Ghost gun kit manufacturers and sellers challenged the rule in court, claiming that the regulations were not authorized by the 1968 law, which defines firearms to include weapons that “may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.” A brief from the challengers also objected to the term “ghost gun,” which they called “a propaganda term that appears nowhere in federal law.”

U.S. District Judge Reed O’Connor vacated the rule nationwide on 30 June, writing that it exceeded the ATF’s authority and that Congress could instead change the law.

The Fifth Circuit fast-tracked the government’s appeal of O’Connor’s decision (oral argument is scheduled for 7 September). U.S. Solicitor General Elizabeth Prelogar asked the Supreme Court to step in to freeze O’Connor’s order and uphold the rule in the meantime, SCOTUSblog reported.

Prelogar argued that the ATF rule fits comfortably within the current definition of a firearm, regardless of the fact that the parts require assembly, The Washington Post noted.

“If a state placed a tax on the sale of tables, chairs, couches, and bookshelves, IKEA surely could not avoid that tax by claiming that it does not sell any of those items and instead sells ‘furniture parts kits’ that must be assembled by the purchasers,” according to Prelogar. “So too with guns: An ordinary speaker of English would recognize that a company in the business of selling kits that can be assembled into firearms in minutes—and that are designed, marketed, and used for that express purpose—is in the business of selling firearms. A contrary conclusion blinks reality.”

The District of Columbia and 20 U.S. states filed a brief supporting the Biden administration’s request to freeze the order, describing the 2022 rule as a “vital backstop to states’ efforts to stem the flow of ghost guns and combat the violence engendered by prohibited persons possessing untraceable weapons.”

Biden administration officials say that the popularity of ghost gun kits has soared in recent years, especially among people who are barred from buying ordinary firearms, such as felons, minors, or other prohibited individuals. Gun kits are often sold online as DIY options, and they are typically shipped 80-percent complete, with 20 percent of assembly required. Sellers boast that building time is quick, and guns can be ready to fire within an hour or two, the Times noted. They are often inexpensive, too—a report from gun violence prevention organization Everytown for Gun Safety found that an AR-15 build kit can cost as little as $345. An entry-level manufactured AR-15 (which is the most popular rifle in America, according to firearms blog PrimaryArms) costs anywhere between $500 and $1,000.

While there is no way of knowing how many ghost guns are in circulation (the rule requiring serial numbers and background checks went into place only last year and gun kits have been available since the 1990s), use of the weapons appears to be growing. According to law enforcement officials in California, 25 to 50 percent of firearms recovered at crime scenes in an 18-month period in 2020 and 2021 were ghost guns. The majority of suspects caught with them were legally prohibited from having guns, the Times reported.

The U.S. Department of Justice told the Court that local law enforcement agencies seized more than 19,000 ghost guns at crime scenes in 2021—a tenfold increase in five years, according to the Associated Press.