Supreme Court ghost busters
It’s a good day when the Supreme Court doesn’t wipe out a common-sense federal gun regulation.
Such was Wednesday, when the court ruled that a Biden-era rule by the Bureau of Alcohol, Tobacco, Firearms and Explosives placing “ghost guns” — untraceable firearms sold in quick-assembly kits — under the same regulations as other firearms did not exceed the agency’s authority.
This should have been, and turned out to be, a no-brainer. Gun manufacturers can’t get around background checks, serial number requirements, and other federal regulations by simply placing all the pieces of a firearm in a build-it-yourself kit. If they could, what are regulations good for?
But this is a court that has expressed increasing hostility to the idea that federal agencies have much wiggle room to make rules based on their understanding of the law. And it was clear during oral arguments in October that not every justice was fond of the ATF’s decision making.
“I put out on a counter some eggs, some chopped up ham, some chopped up pepper, and onions. Is that a Western omelet?” Justice Samuel Alito asked during oral arguments in the case. The implication, I think, was that such a grocery list could not be regulated under any rule that applies only to fully cooked and served breakfast items.
Luckily the seven justices in the majority, in an opinion penned by President Trump appointee Justice Neil Gorsuch, thought Alito’s point wasn’t all it was cracked up to be. (Sorry.)
The court held that the ATF’s regulation on ghost guns, on its face, is not inconsistent with the Gun Control Act of 1968. It left open the possibility for future challenges to the regulation as it applies to specific products. But the rule, as enacted by the ATF, need not be struck down as applied to all ghost guns.
I agree with the Constitutional Accountability Center’s senior appellate counsel Miriam Becker-Cohen, who filed an amicus brief in the case, when she called the court’s opinion a “cogent and straightforward analysis.”
But Justices Alito and Clarence Thomas dissented in the case, claiming among other things that the ruling puts the justices in the shoes of regulators and makes new rules that gun manufacturers could not have anticipated.
Justice Sonia Sotomayor addressed those dissents in a separate concurrence.
“For more than half a century, firearms dealers, manufacturers, and importers have complied with the Gun Control Act’s requirements,” Sotomayor 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.”
In short, any confusion was caused by manufacturers’ attempts to circumvent the rules, not by the court’s decision clarifying them, Sotomayor deduced. I think her assessment is wise. And in a world full of uncertainty, I’m happy that there are at least some rules that still carry the force of law.