The Supreme Court may be only one vote away from a wide expansion of the constitutional right to obtain a gun, and that prospect will get a test today when the Justices go to the bench for a historic hearing. The Court opened its new term yesterday.
At the center of the new gun rights case is something called a “ghost gun” – a kind of do-it-yourself kit that can be put together at home in a little more than 20 minutes using ordinary tools and how-to films found on the Internet.
A leading gun control group, the Brady Center to Prevent Gun Violence, sees the threat behind that kind of kit this way: “Once assembled, a ghost gun looks, feels, and functions like a traditional gun, whether a handgun or assault weapon, and is just as deadly and dangerous in the wrong hands.”
They are called “ghost guns” because, before the federal government took action two years ago, they could not be traced: a company or gun dealer offering such a kit did not have to get a federal license, did not have to do a background check on buyers, did not have to keep records on sales, and – perhaps most significantly – did not have to put a serial number on it, so the government could not follow the gun’s path of sale and ownership if the resulting gun had been used during a crime.
Background: Under a 56-year-old federal gun control law, each of those requirements must be obeyed by dealers, manufacturers and importers of traditional guns. That law broadly defines the word “firearms” to include a complete gun or the firing parts of an unassembled gun if sold separately. Those categories were spelled out more fully in government regulations adopted over several decades.
The gun industry’s developing technology in recent years found how to make easy-to-assemble kits, such as a fully-functioning Glock pistol that can be put together in 21 minutes, according to government descriptions. Some of the handful of companies making the kits insisted that they were not “firearms,” so they contended that the federal requirements did not apply.
Federal officials, reacting to worries expressed by police departments over the easy availability of guns by people forbidden by law to have them, checked and found a marked increase in availability of the kits – from 1,600 in 2017 to more than 19,000 in 2021. Police had recovered the guns and asked federal officials to trace them, but that seldom occurred without serial numbers or transfer records. Traces were successful in fewer than 1 percent of the incidents, federal data showed.
In April 2022, the federal firearms agency spelled out new regulations, defining “firearm” to include any weapon that can “readily” be converted into a functioning gun, including kits of gun parts. The wording was designed expressly to put “ghost guns” under the requirements long enforced on the industry, applying to some 80,000 gun companies or distributors. The new regulation does not ban outright the sale of such kits, except to someone found to be not entitled legally to have a gun, such as a person convicted previously of a serious crime. The new controls went into effect in August 2022.
The legal challenge: The 2022 rules were challenged in federal court by five manufacturers or distributors of the kits, two gun rights groups (the Second Amendment Foundation and the Firearms Control Council), and two individuals.
Their challenge was based mainly on the argument that Congress had not given the federal government the specific authority to expand its regulations to “ghost gun” kits. A federal trial court and a federal appeals court ruled that the regulations were not permitted by the underlying law as written by Congress. Both courts concluded that the term “firearms” did not include “weapon parts kits” even though those could be assembled into a firing gun. Those courts disputed the government’s claim that the kits could be assembled quickly.
The Supreme Court gets involved: As the challenge was making its way through the lower courts, the Biden Administration succeeded, twice, last year in requests to the Supreme Court to temporarily put on hold the lower court rulings against the rules.
However, four of the nine Justices noted that they would have allowed those decisions to remain in place while the controversy continued to unfold in the courts. While that did not mean that they had made up their minds against the “ghost gun” rules, the most significant reason for voting as they did, under the Court’s normal procedures, is a belief that the lower courts very likely would be upheld when the Justices themselves ruled in a final way on the controversy.
In April, the Court voted to decide the dispute itself, leaving the lower court decisions on hold. It will now take five votes for the Court to settle the dispute, for or against the disputed controls. If the four Justices who dissented earlier opt to vote against the controls when the Court rules, they would need only one more vote to prevail.
Those four are Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Significance: For the federal government and gun-control advocates, the risk that the 2022 rules will not survive in the Court is a significant one, threatening the effort to regulate the apparently expanding market for “ghost guns.” Americans’ apparent fondness for guns in general appears to have spread to having untraceable guns.
But the risk looming in this case may be even greater. On the other side of the controversy, gun rights organizations that have joined in the case (including the National Rifle Association) are making a serious effort to push the case beyond just a test of what Congress meant in the old law, into a test of whether such restrictions actually are unconstitutional under the Second Amendment.
Since the Supreme Court first ruled in 2008 that the Second Amendment guarantees a personal right to have a gun for self-protection, the Court has steadily expanded that right. So far, though, the right only is held by individuals. But the gun rights groups have asked the Court to extend the amendment’s protection also to the manufacturers of the kits on the theory that restricting their business of selling the kits would put an unconstitutional burden on gun owners’ rights.
The federal government’s filings in the Court spend little effort discussing the constitutional claims of those organizations, apparently regarding them as unlikely to be given much weight by the Court. It is a long tradition of the Court not to decide constitutional questions unless that is unavoidable – although the Court under Chief Justice John Roberts has been less willing lately to be limited by that tradition.
The government’s arguments are focused mainly on the need to control the spread of “ghost guns,” saying in one of its filings that, under the lower courts’ interpretation, “anyone could buy a kit online and assemble a fully functional gun in minutes – no background check, records or serial numbers required. The result would be a flood of untraceable ghost guns into our nation’s communities, endangering the public and thwarting law enforcement efforts to solve violent crimes.”
Even if the Court were to rule only on the scope of the underlying law, leaving aside the constitutional point, the regulation of “ghost guns” may run afoul of another recent trend in this conservative-dominated Court: a deep skepticism about federal agencies that use their powers expansively, without explicit permission from Congress. As a result, agency rule-writing has been sharply curtailed.
Government lawyers appear to be counting heavily on the fact that at least a majority of the Court was willing, twice earlier, to keep the 2022 rules in operation while the courts review them.
Tuesday’s hearing: Merrick Garland, U.S. Attorney General v. Vanderstok. The hearing begins at 10 a.m. and is scheduled for one hour.
This will be the first hearing of the day. The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
The final decision on “ghost guns” is not likely to emerge until some time next year.
