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Left: Samuel Alito (YouTube/The Heritage Foundation). Center: Clarence Thomas (YouTube/Library of Congress). Right: Neil Gorsuch (Erin Schaff-Pool/Getty Images)
The Supreme Court ruled 7-2 Wednesday to uphold a federal agency’s rule regulating so-called “ghost guns,” with the conservatives breaking ranks as Justices Clarence Thomas and Samuel Alito dissented from a majority opinion penned by Justice Neil Gorsuch.
“Ghost guns” and “weapons”
The case, Bondi v. Vanderstok, stems from a 2022 Bureau of Alcohol Tobacco and Firearms (ATF) regulatory revision of the Gun Control Act of 1968 (GCA) that defines firearm, firearm frame, and receiver. The GCA authorizes the ATF to regulate “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”
That revision followed a 2021 statement from Merrick Garland in which the then-attorney general said: “Criminals and others barred from owning a gun should not be able to exploit a loophole to evade background checks and to escape detection by law enforcement.”
The revision incorporated so-called “ghost guns” — also known as “weapon parts kits,” which individuals can assemble into functional firearms — into its definition of “firearms.” According to the Court, sales of these kits has grown exponentially in recent years, and law enforcement agencies have reported a sharp rise in the use of “ghost guns” in crimes, from 1,600 in 2017 to more than 19,000 in 2021. Under the revised language, weapon part kits and similar equipment must follow the same laws as traditional firearms with respect to licensing.
Gorsuch summed up the underlying problem the revision attempted to solve in his opinion Wednesday:
The upshot? “[P]olice departments around the Nation” have “confronted an explosion of crimes” involving these “ghost guns.” In 2017, law-enforcement agencies submitted about 1,600 ghost guns to the federal government for tracing. By 2021, that number jumped to more than 19,000. Efforts to trace the ownership of these weapons, the government represents, have proven “almost entirely futile.”
At the trial level, U.S. District Court Judge Reed O’Connor, a George W. Bush appointee, agreed with the plaintiffs, and in 2023 he granted summary judgment against the ATF, vacating the rule nationwide. The federal government appealed, and a split Supreme Court allowed the rule to stay in effect while legal challenges worked their way through the courts.
In November 2023, the ultraconservative U.S. Court of Appeals for the Fifth Circuit affirmed O’Connor’s summary judgment ruling and unanimously found that the rulemaking exceeded ATF’s statutory authority.
Gorsuch writes to overturn the Fifth Circuit
In a 24-page opinion for the Court’s majority, Gorsuch noted that the dispute before the justices is a “facial” challenge — one that does not challenge the ATF regulation with respect to a particular case, but rather, one that challenges ATF’s right to make the rule in the first place. The justice explained that under the GCA, ATF is authorized to regulate as long as there is a “weapon” that is “able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way.”
Gorsuch continued, saying that while the Fifth Circuit believed that the rule would always be invalid because no weapons parts kits could ever satisfy those requirements, “at least some kits” would fall within the parameters of GCA’s authority.
He went on to describe exactly the kinds of kits he was talking about.
“Take a weapon parts kit featured prominently in the record before us: Polymer80’s ‘Buy Build Shoot’ kit,” the justice offered. “It comes with ‘all of the necessary components to build’ a Glock-variant semiautomatic pistol.”
Gorsuch helpfully included an example with pictures to illustrate his reasoning.
(image via Supreme Court Opinion).
Gorsuch concluded, “Plainly, the finished ‘Buy Build Shoot’ kit is an instrument of combat.”
“No one would confuse the semiautomatic pistol pictured above with a tool or a toy,” he continued. While the kit would require some assembly, Gorsuch reasoned, it still qualifies as a “weapon” given its intended purpose.
Gorsuch analogized the kit to a rifle disassembled for cleaning: “It may take time to render the rifle useful for combat, but its intended function is clear.” Whether the item is “combat ready” or not, Gorsuch reasoned, its function is clearly one of a weapon.
He wrote, bluntly, “Really, the kit’s name says it all: ‘Buy Build Shoot.””
Congress, Gorsuch said, did not choose to simply regulate weapons ready for firing, but rather, included anything “designed to” or “capable of” of being fired with explosives. The justice qualified that there are indeed limits to this logic and allowed that there might be some kits that are “so incomplete or cumbersome to assemble” that they would not fairly be described as a “weapon.”
The seven-member majority reversed the Fifth Circuit’s ruling and remanded the case for further proceedings.
Justice Sonia Sotomayor penned a brief concurrence that called out the gun industry for what she said was its true motivation in the case.
“For more than half a century, firearms dealers, manufacturers, and importers have complied with the Gun Control Act’s requirements,” she wrote. “They have marked their products with serial numbers, kept records of firearm sales, and conducted background checks for prospective buyers.”
“What is new,” Sotomayor continued, “is that some manufacturers have sought to circumvent the Act’s requirements by selling easy-to-assemble firearm kits and frames, which they claim fall outside the statute’s scope.”
“ATF’s rule simply confirms what was already clear,” she concluded, “The Gun Control Act does not tolerate such evasion” — and noted that if any particular manufacturer were ever unclear about what counted as a “weapon,” it could simply ask for clarification from ATF.
Justice Brett Kavanaugh also penned a concurrence in which he warned that an individual or business might have be acting in good faith while still having “substantial difficulty” figuring out whether a weapon kit or unfinished frame is subject to GCA regulations, thereby unfairly exposing them to criminal prosecution.
Justice Ketanji Brown Jackson also penned a brief concurrence in which she underscored the simplicity of the case and the correctness of the majority’s decision.
Thomas and Alito dissent
Justices Clarence Thomas and Samuel Alito, however, did not agree. Each issued their own dissent.
Over 26 pages, Thomas chastised his fellow justices for an decision he said “blesses the Government’s overreach based on a series of errors.” Thomas went on to lament the ever-widening definition of “firearms” under federal law and say that ATF has only offered “one meager limit” on its definitions by excluding raw materials or unformed blocks of metal.
Thomas went on to say that the majority’s analytical framework had been incorrect and should not have been more lenient because the challenge at hand was a “facial” challenge rather than an “as applied” one. Thomas also included a photo of his own, including the below image, to demonstrate how, in Thomas’s words, “mere presence of things distinct from the object at issue can somehow transform the character of the object itself.”
“Unlike a disassembled firearm, a weapon-parts kit requires more than merely assembling the parts to become a functional gun,” Thomas wrote. “Special tools and an indeterminate amount of time are required to convert an unfinished weapon-parts kit into a functional weapon.” Therefore, he reasoned, gun kits are not “weapons” within the meaning of the regulations.
U.S. Supreme Court.
In Alito’s separate and shorter — and picture-free — dissent, he disagreed with the majority’s analysis and said there were relevant questions beyond whether the rule exceeded statutory authority.
Alito ended his dissent with a footnote aimed directly at Sotomayor.
“Although Justice Sotomayor obviously wishes that the Court had gone further, all that the Court has actually held is that the ATF rule is not facially invalid because at least some applications of the rule are consistent with the statute,” Alito said, emphasizing the limited scope of the majority’s analysis.
Alito wrote that the only examples that the Court cited are “(1) a kit that contains all the parts needed to make a semiautomatic pistol and that can be assembled in 21 minutes,” and “(2) a frame that can be made functional simply by clipping off two plastic tabs and drilling a few holes.”
“The Court has not held that any other kits or presently non-functional receivers are covered,” he reminded.
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