The U.S. Supreme Court on Wednesday upheld the Biden administration’s regulation of so-called “ghost guns,” by a 7-2 vote. Justice Neil Gorsuch wrote the opinion, joined by Chief Justice John Roberts, as well as Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson. Justices Clarence Thomas and Samuel Alito dissented.
At issue was whether the devices meet the federal definition of a “firearm” and “frame and receiver,” and whether the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority to regulate and enforce their sale.
Ghost guns are do-it-yourself functional weapons that are often purchased online and marketed by some sellers as easy to assemble. The Justice Department said more than 19,000 hard-to-trace ghost guns were seized by law enforcement in 2021, a more than tenfold increase in just five years.
That was driven in part by recent technological advances, many containing polymer-based unassembled firearm components.
Final home assembly typically requires the use of some readily available tools, including drilling holes and milling or sanding the unfinished frame or receiver, which enable the installation of parts. The 1968 Gun Control Act was revised in 2022 to regulate the growing market for certain “buy build shoot” kits.
The seven-justice majority found that the Gun Control Act “permits ATF to regulate…some weapon parts kits and unfinished frames or receivers.”
The law defines a “firearm” to include “any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon.”
“Congress could have authorized ATF to regulate any part of a firearm or any object readily convertible into one,” Thomas wrote in his dissent. “But, it did not. I would adhere to the words Congress enacted. Employing its novel ‘artifact noun’ methodology, the majority charts a different course that invites unforeseeable consequences and offers no limiting principle.”
The administration said it was not seeking to ban the sale or use of these kits, merely requiring them to comply with the same requirements of other commercial firearms dealers. That includes serial numbers on the parts and background checks on the purchasers.
A federal appeals court struck down the updated rules after a legal challenge from kit sellers and buyers, but the Justice Department appealed to the Supreme Court.
Gun rights groups say that the rule is “unconstitutional and abusive,” arguing the ghost gun kits consist of “non-firearm objects.”
The devices can also be made from 3D printers or from individual parts. That is part of separate legal challenges in the lower courts.
The ATF’s rule requires unfinished parts of a firearm, like the frame of a handgun or the receiver of a long gun, to be treated like a completed firearm. These parts need to be licensed and must have serial numbers.
The rule also requires manufacturers to run background checks before selling these parts, as they are required to do for whole commercial firearms.
The justices have been revisiting the Second Amendment in recent years, after the conservative majority in 2022 made it easier to carry handguns outside the home for protection.
In June, a federal ban on bump stocks, devices that can convert semi-automatic rifles into weapons that can fire hundreds of rounds a minute, was struck down by the high court.
However, that same month, the justices upheld a federal ban on firearm possession for people subject to certain domestic violence restraining orders.
The case is Garland v. VanDerStok (23-852).
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