Ghost Guns Haunt SCOTUS

Guns are scary. And unless you're Ray Parker, Jr., ghosts are scary. So it's perhaps understandable that many U.S. regulators have a good deal of trepidation about "ghost guns." These are guns that you assemble yourself at home, and up until now, they've been unregulated.

With the Biden Administration’s recent efforts to change gun laws to include ghost guns, the legal debate over the right to bear arms — a debate as old as the country itself — continues to play out. The Supreme Court recently got involved in the matter, and we’ll sum up the legal arguments on both sides. But first, a refresher on what exactly ghost guns are and a brief history of packing heat.

What Are "Ghost Guns"?

"Ghost guns" used to refer mainly to firearms assembled by individuals from separate parts (such as receivers and frames), as opposed to finished, functioning guns purchased from distributors. "Gun kits" that let you D.I.Y. your own piece at home have been available for decades. They can be purchased at gun shows, stores, or online, without the background check requirements that finished guns have.

But this isn’t quite like building your own birdhouse. The key fact when it comes to firearms is that they are only regulated by the government when "finished" to a certain degree. Break guns down into their component parts, and you have technically legal, technically harmless individual pieces. But like Frankenstein’s monster, once put together, these pieces combine to form a whole that is greater — and deadlier — than its parts.

More recently, phantom firearms evolved to take a new form that is potentially even more difficult to regulate: 3D-printed guns. With the advent of 3D printing, it became even easier to make a working firearm from the comfort of your own home — and without tying your name to any record of a transaction. A few years ago, one Cody Wilson famously released 3D printer blueprints for his gun designs to the world. Since then, there has been some amount of pushback, including regulation prohibiting making guns that don't set off metal detectors (i.e., all-plastic guns). But for the most part, to this day, anyone with a few hundred dollars can buy a 3D printer and pop out a working firearm in their own living room — without a trace.

Why Ghost Guns Are So Scary

Why is the idea of a spectral shotgun potentially more problematic than their professionally manufactured counterparts? Remember, ghost guns are every bit as functional as "real" guns — yes, even ones made of plastic from a 3D printer. But due to the fact that they're relatively new on the scene, combined with a loophole in the law, they aren't required to have a lot of the checks that keep traditional guns (somewhat) in place. For example, the fact that they’re not regulated means that there are no measures in place to moderate who can buy them. Someone with a criminal record or someone otherwise deemed a potential threat to society might be prevented from purchasing an intact gun, through the background check process. With ghost guns, this isn’t possible.

Additionally, ghost guns aren't required to display serial numbers, meaning that they're untraceable. This has the consequence of making them more attractive to individuals who would otherwise be deterred from buying guns. For example, individuals with criminal records or those with documented substance abuse or psychological issues would find it hard to clear a background check. They would normally find it difficult or risky to try procuring a firearm. But with ghost guns, these individuals don't have to worry about getting stopped or caught doing something illegal.

A History of Gun Regulation in the U.S.

Even though ghost guns may be relatively new, self-made firearms have been around since, well, firearms themselves. A notable example from post-Constitutional America is the man who was known as "the Edison of guns": frontiersman John Moses Browning. Browning went from a childhood of playing around with gun parts and fashioning crude versions of firearms at home to designing some of the most influential firearms in the world. His company, Browning Arms Company, still exists today, and its designs continue to be manufactured by companies you might recognize better (Colt, Remington, and Winchester, to name just a few). Clearly, there was no issue with making your own guns for much of our country's history.

How did all that change? Well, for a long time, it didn’t. Guns were pretty much unregulated since the Second Amendment gave us the right to bear arms in 1791. Much, much later, during Prohibition, gun violence really got out of hand. If you've heard of the 1929 St. Valentine's Day Massacre in Chicago, it's just one example of the mafia-related violence on the rise throughout the country. And while gangs had been running amok for a few years, the real kicker was the attempted assassination of FDR in 1933, also in Chicago. While Roosevelt dodged that bullet, it did instead kill the local mayor, Anton Cermack.

From Gangbusters to Ghostbusters

Nothing wakes up a sleepy legislature like the threat of a presidential assassination. The following year, in 1934, Congress passed the National Firearms Act (NFA), which regulated the manufacturing of, sale to, and purchase by civilians of firearms of various types. It also placed a tax on the sales of these weapons and created a system of regulating their transportation across states and importation into the country. Further, it required anyone wanting to buy a gun to go through an extensive background check, and once cleared, to register their piece with ATF (now known as the Bureau of Alcohol, Tobacco, Firearms, and Explosives). This law is commonly referred to as "Title I," and lives on, after a few modifications throughout the years, at 26 U.S.C. § 5845.

That was the first in a series of federal and state firearms laws throughout the century. The Gun Control Act (GCA), signed into law by LBJ in 1968, is what’s known as "Title II." It deals mostly with selling guns from one state to another (a.k.a. "interstate commerce"). In 1994 came the Brady Act, which to this day requires you to get a background check before you buy a gun. As a result, it imposed a de facto waiting period of several days. Later, with technological advances and computerized background checks, waiting periods became obsolete, and you could be cleared to buy a gun instantly. These are just some examples of many other gun laws passed throughout the past half-century, during which time states passed their own laws that would impose further restrictions on top of the federal laws.

Who You Gonna Call?

That’s all well and good, but where do ghost guns fall? As we mentioned, ghost guns aren’t entire guns, but parts. These individual parts — namely, the receivers and frames — were arguably not considered guns in and of themselves. When President Biden stepped into office a few years ago, he was already determined to make American neighborhoods safer by cracking down on gun violence.

When the new president noticed "something strange" in our neighborhoods (rather alarming rates of unserialized guns popping up out of seemingly nowhere), he promised to do everything in his power to change the glaring hole in gun regulation. According to sworn testimony by ATF officials, the number of suspected ghost guns recovered by law enforcement increased by 1,083% from 2017 to 2021. Around the last ten months, about 23,452 of these had turned up at crime scenes.

Biden set out to tackle what he saw as a "gun violence public health epidemic" through legislation aimed at curtailing different types of risks in firearm regulation. This included a new "Frame and Receiver Rule" that would ban ghost guns by rewriting existing gun laws to broaden the definition of "frame" and "receiver." ATF redefined these words to include "partially complete, disassembled, or nonfunctional" frames and receivers, as well as gun kits.

The Legal Debate Over Biden's New Rule

Is that law fair? Is it constitutional? Is the government allowed to expand existing law in such a way? To nobody’s surprise, it’s been a hot debate, and arguments abound on both sides.

Some scholars think that the fact that self-made firearms have always been part of our country’s history since before John Moses Browning’s time indicates that the Second Amendment was always intended to cover guns assembled piecemeal, including ghost guns. To them, ghost guns are no different from Frankenstein firearms cobbled together from parts. As President Biden put it, "if you buy a couch you have to assemble, it’s still a couch."

The Case Goes to Court

But the challengers of the rule saw things differently and took the matter to federal court in a case called VanDerStock v. Garland.

Attorneys for the government (i.e., those trying to uphold the rule) analogized guns to bicycles. They argued that a bike is still a bike even if it lacks pedals, a chain, or another part necessary to make it work correctly, and it's still a bike even if it is shipped "with a seat tube that the user must cut to length before installing." Similarly, they argue, "a frame or receiver is still a frame or receiver even if the buyer must drill a few holes or remove some plastic tabs before attaching other parts of the firearm."

The challengers didn't buy the government's analogies. They countered, "an IKEA bookshelf is shipped with all the completed parts necessary to construct a bookshelf, whereas a parts kit requires additional manufacturing on the key component to become a firearm." They argue that the better analogy would be to a "taco kit," which is "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." They argue that "[n]"No one would call the taco kit a taco." In addition to having to assemble things, they argue that turning a taco kit into a taco "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."

The challengers agree that disassembled firearms are basically the same as firearms, just like "leftovers from taco night that have been stored in separate containers in the refrigerator but that could be quickly turned back into tacos for lunch the next day" are still tacos. They find no problem with extending the law to guns that have been merely disassembled. But when it comes to kits with gun parts that have never been assembled before, the challengers maintain that this is too far removed to be included in the definition of a gun.

The district court ruled that ATF had overstepped its authority in making the new rule. The judge reasoned that if Congress wanted to include ghost guns in its regulation of firearms, it would have written or modified the text of statutes such as the NFA and GCA to say so explicitly. Basically, his argument was that a federal agency like ATF can't just ignore the laws that Congress made by singlehandedly redefining "frame" and "receiver" to include ghost guns.

The judge wrote, "[e]ven if it is true that such an interpretation creates loopholes that as a policy matter should be avoided, it not [sic] the role of the judiciary to correct them. That is up to Congress. And until Congress enacts a different statute, the Court is bound to enforce the law as written." He then "vacated" (undid) the new rule. Unsurprisingly, the Feds rushed to appeal.  

SCOTUS Steps In

The debate is now going to the Supreme Court. After some back and forth at federal trial and appellate courts, the federal government asked SCOTUS to issue an emergency stay that would allow Biden’s new law to remain in effect, at least until the Court decides what to do with the case. Last week, a narrow 5-4 vote in favor of keeping the new law in place included not only the predictable liberal members (Justices Sotomayor, Kagan, and Jackson) but also Chief Justice Roberts and Justice Barrett. Justices Thomas, Alito, Gorsuch, and Kavanaugh voted against granting the stay.

As is the case in short opinions for emergency injunctions, the justices did not explain their reasoning. We will have to wait for a more robust ruling from SCOTUS in order to know where they stand. For now, Americans might want to choose another option for their next D.I.Y. project.

 Related Resources

• More Cities and States Eyeing 'Ghost Gun' Crackdowns (FindLaw Courtside ​blog)
• A Summary of the Second Amendment (FindLaw's U.S. Constitution pages)
• Gun Control Laws by State (FindLaw's Learn About the Law)