Biden Ghost Gun Rule Appears Safe, as SCOTUS Justices Defend Its Reasoning

During a Supreme Court hearing on Tuesday, a majority of justices indicated support for continuing a Biden administration rule that places restrictions on “ghost gun” mail-order kits that allow people to assemble their own weapons.

Such guns, which are often untraceable because they lack a serial number, have become a growing problem. In 2017, law enforcement submitted about 1,800 ghost guns to the Justice Department, seeking help in tracing how they were purchased. In 2021, that number rose to 19,000 such weapons.

A rule crafted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulates how those ghost guns can be sold, requiring serial numbers on the kits and for sellers to perform background checks on purchasers. Some of those sellers, however, challenged that rule, arguing that their products should not be regulated the same way guns are because, in their minds, the disassembled pieces are technically not being sold as a full weapon.

The far right Fifth Circuit Court of Appeals ruled in favor of that argument, prompting the Biden administration to appeal that decision to the Supreme Court, which agreed to hear the case and placed a hold on that lower court’s order, keeping the rule intact for the time being. During oral arguments on Tuesday, most of the justices expressed skepticism over arguments made by the ghost guns kit sellers.

All members of the Supreme Court’s liberal bloc questioned the legitimacy of the sellers’ claims, while some of the conservative bloc members indicated they weren’t buying them either. The commentaries showcased a rare instance in which most of the justices, across ideological lines, appeared to agree on a rule or law restricting the selling of guns.

Only one conservative member of the court, Justice Samuel Alito, indicated out loud some sympathies to the ghost gun sellers. In questions he made to Solicitor General Elizabeth Prelogar, who argued on the government’s behalf to keep the ATF rule in place, Alito compared the assembling of a weapon to the creation of a list on a notepad.

“Is this a grocery list?” Alito asked, holding the pad and a pen up before him.

Prelogar argued against that notion, but Alito continued, wondering aloud whether gathering food items at a grocery store could constitute the purchasing of an omelet. Again, Prelogar rejected that notion, pointing out that the ingredients collected could be used for something else, whereas a gun kit was purchased for a very specific purpose.

“The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use,” Prelogar said.

Justice Amy Coney Barrett, another conservative member of the court, then stepped in, offering a rare challenge to Alito’s assertions by asking if a meal could be considered a meal if it was purchased from a mail-delivery kit. Prelogar accepted that premise, noting that the ingredients in such a kit were intended to make that meal.

Alito didn’t stop there, however, and also questioned whether assembly time matters in determining regulation standards.

“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,” Alito said.

“I’m with you on that one, Justice Alito, as someone who struggles with Ikea furniture,” Prelogar joked in response. But ultimately, the purchasing of a piece of furniture yet to be assembled was still buying that piece of furniture, she maintained.

Chief Justice Roberts also questioned the idea that parts of a gun do not constitute a gun itself, especially when they’re sold together with assembly instructions. Directing his questions to Peter Patterson, the lawyer representing the challengers to the ATF rule, Roberts asked what the purpose of selling the parts “without the holes drilled in it” was if it wasn’t to sell a gun but just parts of one.

Patterson responded by comparing the construction of a gun from parts sold by ghost gun sellers to a person who enjoys “working on their car every weekend.” Just like that hobby, “some individuals want to construct their own firearm,” but the purchasing of parts doesn’t mean they intend to create the full product.

Roberts forcefully rejected that premise. “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,” the chief justice said.

Patterson tried to argue otherwise, but Roberts cut him off, saying that the purchaser probably believes they bought a gun, not that they built it themselves. Said Roberts:

If someone who goes through the process of drilling the one or two holes and taking the plastic out, he really wouldn’t think that he has built that gun, would he?

According to an analysis from Law Dork’s Chris Geidner, liberal justices did comment several times throughout the proceeding. However, they appeared “happy letting the conservatives break down the challengers’ argument,” Geidner wrote.

The Supreme Court’s decision to issue a temporary stay on the Fifth Circuit Court’s ruling may indicate a reluctance to block the ATF rule. Other court observers, listening to oral arguments on Tuesday, also said it appeared likely that a majority of the justices would leave the rule in place, when the court makes a final ruling on it next June.

“The Supreme Court will likely uphold the Biden administration’s restrictions on the sale of ghost guns, thereby preventing the resurrection of an industry that has essentially collapsed,” Slate’s Mark Joseph Stern wrote on X, predicting it will “probably” be “a 6-3 vote” by the court.

The Nation’s Elie Mystal agreed. “I went in worrying we’d lose 6-3 like the bump stock case,” Mystal wrote. “But I’m coming out thinking we’re gonna win 6-3.”