WASHINGTON – The Supreme Court seemed likely Tuesday to uphold a Biden administration regulation on ghost guns, the difficult-to-trace weapons found in increasing numbers at crime scenes.
In arguments that ranged from classic cars to Western omelets, key conservative justices seemed open to the government's argument that kits allowing people to make nearly untraceable guns at home can be regulated like other firearms.
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Two conservative justices, Chief John Roberts and Amy Coney Barrett, previously joined with the three liberals to allow the rule to go into effect and seemed skeptical of the arguments that the Biden administration overstepped by trying to regulate gun parts rather than finished weapons.
Many of the justices' questions focused on whether the kits were close enough to functioning weapons to be regulated as guns.
Justice Samuel Alito compared the components to food, suggesting eggs, peppers and ham aren't necessarily a Western omelet so shouldn't be treated like one.
Barrett, though, proposed gun kits are more like meal kits ordered online that contain everything needed to make a specific dinner, like turkey chili.
Roberts, for his part, seemed skeptical of the challengers' position that the kits are mostly popular with hobbyists who enjoy making their own weapons, like auto enthusiasts might rebuild a car on the weekend.
Many ghost gun kits require only the drilling of a few holes and removal of plastic tabs.
“My understanding is that it’s not terribly difficult for someone to do this," he said. “Drilling a hole or two, I would think, doesn't give the same sort of reward that you get from working on your car on the weekend."
A ruling is expected in the coming months.
While guns are at the center of the case, Garland v. VanDerStok, the legal issues are about the power of federal agencies rather than Second Amendment rights. The case comes after the high court struck down another firearm regulation, a Trump-era ban on gun accessories known as bump stocks that enable rapid fire. In that case, the court found that the Bureau of Alcohol, Tobacco, Firearms and Explosives wrongly categorized the accessories as machine guns.
The ghost gun regulation came after their numbers around the country soared, going from fewer than 4,000 recovered by law enforcement in 2018 to nearly 20,000 in 2021, according to Justice Department data. The number of ghost guns has since flattened out or declined in several major cities, including New York, Los Angeles, Philadelphia and Baltimore, according to court documents.
Finalized at the direction of President Joe Biden, the rule requires companies to treat the kits like other firearms by adding serial numbers, running background checks and verifying that buyers are 21 or older.
Challengers to the rule argue that most people who commit crimes use traditional guns and that the kits can be hard to assemble.
“Congress, in the Gun Control Act, did not seek to pursue its purposes of controlling access to firearms to the nth degree,” said attorney Peter Patterson, representing manufacturers, gun rights groups and people who own firearms parts.
U.S. District Judge Reed O’Connor in Texas agreed with the challengers and struck down the rule in 2023. The U.S. 5th Circuit Court of Appeals largely upheld his decision. The administration appealed to the Supreme Court, which allowed the rule to go into effect while the litigation played out.
Justice Brett Kavanaugh said he was concerned that businesses might accidently run afoul of the regulation. Solicitor General Elizabeth Prelogar responded that the regulation is not aimed at unwitting sellers, an answer Kavanaugh called helpful.
Prelogar argued that regulation of weapons that can be “readily converted” to shoot is well within ATF's authority, and law-abiding hobbyists can still buy the kits with the regulation place.
“Our nation has seen an explosion in crimes committed with ghost guns,” she said. “The evidence shows that these guns were being purchased and used in crime.”