On Monday, the U.S. Supreme Court agreed to consider the Biden administration’s appeal of a decision that rejected the administration’s regulation of ghost guns.
In 2022, the Biden administration’s Bureau of Alcohol, Tobacco, Firearms and Explosives broadened the interpretation of the definition of “firearm” in the Gun Control Act of 1968. “The 1968 Gun Control Act, the 1988 Undetectable Firearms Act and other federal laws all govern firearms produced by a 3D printing process or any other process, just as they apply to conventional manufacturing processes using machine tools,” NSSF notes. The Gun Control Act interpreted “firearm” to mean “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.”
The rule claimed that the parts in ghost guns lay under the rubric of “firearm” under the federal Gun Control Act so the federal government could regulate them. It required “manufacturers and sellers to obtain licenses, mark their products with serial numbers and conduct background checks,” The New York Times reported.
In August 2023, in a 5-4 vote, the Supreme Court allowed the Biden administration’s rule to stay in effect despite the fact that it had been challenged. In November, the 5th U.S. Circuit Court of Appeals found the Biden administration’s regulation unlawful. “Only Congress may make the deliberate and reasoned decision to enact new or modified legislation regarding firearms,” the court wrote. “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will,” they added.
Solicitor General Elizabeth Prelogar countered that if the 5th U.S. Circuit Court of Appeals’ decision were implemented, “Anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records, or serial number 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.”
“If a state placed a tax on the sale of home goods, such as tables, chairs, couches and bookshelves, Ikea surely could not avoid that tax by claiming that it does not sell any of those items and instead sells ‘furniture parts kits’ that must be assembled by the purchaser,” she argued. “So too with guns: An ordinary speaker of English would recognize that a company in the business of selling kits that can be assembled into firearms in minutes — and that are designed, marketed and used for that express purpose — is in the business of selling firearms.”
A brief for the Supreme Court asserted, “Consistent with Congress’s decision not to interfere with the making of firearms by private citizens, commercial production and sale of other items that may be used by private citizens to make firearms for their own use is outside the scope of the Act.”
Additionally, it offered another perspective, stating:
A better analogy would be to a “taco kit” sold as a bundle by a grocery store that includes taco shells, seasoning packets, salsa and other toppings, along with a slab of raw beef. No one would call the taco kit a taco. In addition to “assembly,” turning it into one would require cutting or grinding and cooking the meat — and until that was done, it would be nonsensical to treat it as food and the equivalent of a taco.
