A 7-2 opinion allowing the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to continue treating certain gun-parts kits as if they were completed firearms came late yesterday (March 26) – but it did not come as a surprise. Despite its label as a conservative court, SCOTUS leaned into the argument that these kits – which include the essentials of building what leftists call a ghost gun after just a bit of fabrication work – are complete enough that they should be treated as any other firearm.
At issue was a Biden-era regulation that permitted the ATF to restrict access to these kits. The decision by the High Court can be viewed as a win for those who advocate for robust gun control.
The Ghost Gun Controversy
A “ghost gun” is simply a firearm that doesn’t have a serial number. Any gun made or imported into the United States by a commercial manufacturer is required by law to have one, which can be used to trace the weapon if it is ever used in a crime. Privately made firearms, or PMFs, don’t share that requirement, however, unless they’re going to be sold.
The other type of ghost gun – the one that spawned the term – is the commercial firearm with its serial number illegally removed. This was once the far more common unmarked gun, simply because of the work required to build a homemade firearm. Enter the newer kits, which contain partially completed pistol or rifle parts that require just some milling (which can be done with a drill, if one is careful enough) to have all the parts needed to build an unmarked firearm. According to the Department of Justice, “From January 2016 to December 2021, ATF received approximately 45,000 reports of suspected privately made firearms (PMFs) recovered by law enforcement in criminal investigations — including 692 homicides or attempted homicides.”
In 2022, as part of a wide-ranging effort to control firearms, President Joe Biden made the Gun Control Act of 1968 applicable to these gun kits, giving the ATF authority over their sales. Yesterday’s ruling by the Supreme Court will allow ATF intervention in the purchase of “some ghost guns, although they left open the possibility that the rule might not apply in individual challenges to particular ghost guns,” according to Amy L. Howe, whose article was posted on SCOTUSblog. Howe summarized the issue in writing:
“The ATF contended that the 2022 rule was consistent with the language of the law because it defines ‘firearm’ to include products, such as gun kits, that can be converted into an operational gun or a functional frame (the basic structure of the gun) or receiver (the part of the gun that houses the firing mechanism). The rule also clarified that the terms ‘frame’ and ‘receiver’ include partially complete or disassembled frames or receivers that can be ‘readily’ completed or converted to work as a frame or receiver.”
The Duck Test
Without getting too far into the weeds, the Court found that these frames and receivers were easy to turn into usable firearms. In writing for the majority, Justice Neil Gorsuch used the old duck test (“If it looks like a duck and quacks like a duck, it’s a duck”) as a keystone of his argument. For an example, he used “Polymer80’s ‘Buy Build Shoot’ kit.” He found that “an individual who had never before encountered the kit was able to produce a gun from it in 21 minutes using only ‘common’ tools and instructions found in publicly available YouTube videos.”
In a 26-page dissent, Justice Clarence Thomas wasn’t buying what Gorsuch was selling. He complained that “the Government asked this Court just last Term to ‘rewrite’ statutory text so that it could regulate semiautomatic weapons as machineguns. Garland v. Cargill, 602 U. S. 406, 428 (2024). We declined to do so. The Government now asks us to rewrite statutory text so that it can regulate weapon-parts kits. This time, the Court obliges. I would not. The statutory terms ‘frame’ and ‘receiver’ do not cover the unfinished frames and receivers contained in weapon-parts kits, and weapon-parts kits themselves do not meet the statutory definition of ‘firearm.’ That should end the case. The majority instead blesses the Government’s overreach based on a series of errors regarding both the standard of review and the interpretation of the statute.”
Justice Samuel Alito also issued a dissent to the majority opinion. The only bit of daylight that stalwart Second Amendment advocates have to hold on to in this ruling is that it does not apply to every gun kit sold. This likely means the ghost gun controversy is far from over.
