The Supreme Court on Wednesday gave the federal government narrow authority to limit the spread of do-it-yourself kits that are used to make guns that cannot be traced after being used in a crime. The ruling on so-called “ghost guns” was important, but it also could easily be misunderstood as broader than it actually was.
At issue in the case was the legality of a three-year-old rule adopted by the Biden Administration that sought to restrict spreading access to home-assembled guns that did not have serial numbers, on which buyers did not have to have background checks and manufacturers, and dealers did not have to have licenses or keep records on their sales.
By a vote of 7-to-2, an unusually large majority among Justices of widely differing views on gun control, the Court rejected a broad legal challenge to the rule by home users and manufacturers of the increasingly popular kits.
The mere fact that the ruling had the support of seven of the nine Justices, and even some support from an eighth, was itself an indication that the ruling was not intended to be a sweeping endorsement of federal gun control policy. There were these other indications to demonstrate how narrow it was:
• The decision said nothing about the gun-rights provisions of the Constitution’s Second Amendment, so it set no new constitutional boundaries and Congress would be free to overturn the 2022 rule whenever it wished.
• The Court did not put a complete end to the challenge to the rule, sending the case back to lower courts to weigh the dispute using the guidance that the decision newly provided.
• It was left to a single Justice, Clarence Thomas, the Court’s most avid defender of gun rights, to file a dissent contending that the rule was completely void.
• Justice Samuel A. Alito, Jr., who also dissented, could be counted as an eight Justice at least partly in favor of the rule’s validity because he said he could support the bottom line rejecting the challenge if the other seven Justices had used a different way to interpret the rule’s validity.
• The majority opinion, written by conservative Justice Neil M. Gorsuch, gave only a few specific examples of the kind of gun kits that will be regulated under the rule, leaving manufacturers with what could be considerable leeway to try to modify their products to stay free of the licensing, serial number labeling, record-keeping and background check requirements. Some further guidance may emerge after the new review in lower courts.
• Finally, the ruling examined the 2022 rule by treating the challengers as having made the most difficult-to-prevail argument: that is, that the rule could not operate in any factual situation in which it would be legally valid. While not totally impossible, that rigorous test can seldom be met; one can imagine that almost any rule or regulation might be used in some legal way. (It was the use of this most-difficult test that led Justice Alito to dissent. He argued that the approach that the Gorsuch opinion took had never been raised by anyone as an issue in this case and that, in general, it should only be used when a court is judging a law, not a government agency’s regulation.)
Still, any time that the conservative-dominated Court allows a form of gun control to withstand challenge, it can have the real-world effect of helping to reduce the broad circulation of weapons that leads to continuing gun violence across the nation. The current Court majority is well known as a staunch supporter of Second Amendment rights.
The core of Wednesday’s ruling is that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives had not gone beyond the authority given to it by Congress in 1968 when it wrote the kit regulations three years ago, and thus could impose restrictions on at least some versions of the kits. The rule had not yet gone into effect, because lower courts had struck it down after it was challenged.
While the opinion did not provide a detailed definition of what kind of kit would be covered by the rule, it stressed that the kit had to be one that could be rather quickly assembled by a person of ordinary skill into a functioning weapon capable of firing bullets. A second part of the rule applied to the partly assembled parts of a gun that will house the hammer and the chamber when a bullet is to be fired and sent down the barrel.
The Court concluded that Congress, in authorizing the Firearms Bureau to regulate “weapons” or “firearms,” did not intend to restrict that agency only to writing rules for finished guns, already fully capable of being fired.
The 1968 gun control law at issue in the case was passed by Congress following the assassinations of Senator Robert Kennedy and the Rev. Martin Luther King, Jr. Congress apparently believed that criminals could too easily obtain guns that could not be traced.
When that law was enacted, the process of making a working gun was too technically complex for anyone other than a manufacturing firm. Later developments in technology allowed the creation of kits that home craftsmen could assembled. The number of “ghost guns” recovered from crime scenes has grown “exponentially” in the past eight or so years, the Court’s opinion noted. Tracing of such guns to the source, the Court said, has proved to be “almost entirely futile.”
The decision obviously was not an easy one for the Court to reach. The case was heard on the second day of the current term, last October, thus taking more than five months to reach its limited result.
The majority opinion by Justice Gorsuch had the support of Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, Brett M. Kavanaugh and Sonia Sotomayor. Justices Jackson, Kavanaugh and Sotomayor also filed brief opinions reacting to the dissenting Justices or stressing how narrow the ruling was.
Very likely, a good many more court cases will have to unfold before the full scope of this controversy becomes clear.
