Supreme Court Lets ATF Regulate (Some) DIY Firearms Kits
More litigation is required to find out which kits and unfinished parts are subject to regulation.
When is a paperweight a firearm? When the U.S. Supreme Court overrules sensible lower court decisions so the federal government can regulate inert objects as if they were capable of firing bullets. That's the result of the high court's 7–2 ruling last week in Bondi v. Vanderstok permitting the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to enforce its "ghost gun" rule reinterpreting the law so it can treat at least some unfinished gun parts kits as functioning firearms. The case avoided the Second Amendment and dealt only with the permissible extent of administrative legal interpretations.
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Scary 'Ghost Guns' and the Limits of the Law
At stake are so-called ghost guns, a term encompassing firearms made by hobbyists and lacking serial numbers. Specifically, "ghost gun" most often refers to firearms made from unfinished parts or kits that require work with tools such as drills and milling machines—less work in some cases than in others—in order to produce a functioning gun. Making DIY guns has become a popular hobby in recent years, and that upsets the usual ranks of control freaks.
In response, the late Biden administration instructed the ATF to administratively reinterpret the law to require serial numbers and background checks for the trade in unfinished gun parts, just as if they were firearms, even though they're not by any stretch of the imagination capable of firing ammunition. Logically enough, lawsuits ensued. Lower courts were unimpressed by the government's unilateral reinterpretation of law without congressional action. A case originally called VanDerStok v. Garland before the changing of the guard in D.C. ended up before the Supreme Court.
"Shortly after the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. stunned the Nation, Congress adopted the Gun Control Act of 1968 (GCA). Existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily," Justice Neil Gorsuch wrote on March 26 for the majority. "When Congress adopted the GCA in 1968, 'the milling equipment, materials needed, and designs were far too expensive for individuals to make firearms practically or reliably on their own.'… With the introduction of new technologies like 3D printing and reinforced polymers, that is no longer true. Today, companies are able to make and sell weapon parts kits that individuals can assemble into functional firearms in their own homes."
This, to put it plainly, concedes that the law as passed does not address modern unfinished parts kits and new technology. The appropriate solution, as judges at the district and appeal level pointed out, is for Congress to pass new legislation, or else to leave matters alone.
"The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy," wrote Judge Kurt D. Engelhardt for three judges of the Fifth Circuit Court of Appeals in a November 2023 ruling on VanDerStok v. Garland. "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."
That makes sense. If existing laws don't address newly arisen situations, you can't just pretend the old laws anticipated changing circumstances; you should make new laws. Bizarrely, the Supreme Court majority disagreed.
Does a Weapon Have To Be a Weapon To be a Weapon?
Gorsuch's opinion acknowledged the lower courts' point that the GCA imposes a two-part test that allows the ATF to regulate a "weapon" that is "able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way." The lower courts concluded that no collection of inert objects could meet that test.
Gorsuch disagreed. In a tendentious discourse on English usage, he argued that "weapon" is an "artifact noun" and that "everyday speakers sometimes use artifact nouns to refer to unfinished objects."
In his dissent, Justice Clarence Thomas rejected these linguistic gymnastics. "The statutory terms 'frame' and 'receiver' do not cover the unfinished frames and receivers contained in weapon-parts kits, and weapon-parts kits themselves do not meet the statutory definition of 'firearm.' That should end the case," he wrote. According to Thomas, the majority "substitutes novel linguistic labels for traditional statutory interpretation; mistakes outlier definitions for exemplars; and improperly imports attributes of one provision into another." The majority did this, he charges "to rewrite statutory text so that [the government] can regulate weapon-parts kits."
In a separate dissent, Justice Samuel Alito accused the majority not just of reinterpreting the law, but of misinterpreting plaintiffs' arguments to arrive at its conclusion that the ATF's reinterpreted rules are not "facially inconsistent" with the GCA. He calls the court's action "unwarranted and extremely unfair."
Some, but Not All, DIY Gun Kits Subject to New Rules
That said, the majority allows that there are limits to its decision, presumably to avoid background checks of anyone attempting to enter the plumbing aisles of hardware stores: "Just because some kits, like Polymer80's, qualify as 'weapons' that 'can readily be converted' into working firearms does not mean all do." The decision, then, stops at finding that ATF's reinterpretation of the rules are not "facially inconsistent with the statute." Specifically called out, Polymer80's kits are clearly within the ATF's newly legislated—err, litigated—power to regulate. Eighty-percent receivers may not be. Ghost Gunner's ability to mill raw blocks of material into firearm receivers is almost certainly beyond the ATF's grasp.
But precisely which kits and unfinished gun parts are within reach of ATF's reinterpreted rules and which are not will have to be determined by future litigation. The Supreme Court only ruled that the ATF wasn't completely out of bounds. We still don't know where the bounds are.
"The Supreme Court cynically built up a falsework to shore up the ATF's improper rule in spite of the text and history of the statutes," the Firearms Policy Coalition, which participated in the case, responded to the ruling. "FPC and our allies will, to the benefit of our cause and the American people, thoroughly review this decision to find and exploit every feature of the Court's sophistic construction of the law."
Yet to be heard from is the Trump administration, which has a different take than its predecessor on gun policy and the proper role of the ATF. In February, the White House instructed the Department of Justice to review all rules regarding firearms issued from January 2021 through January 2025. It's likely that the ATF will be instructed to back off its rule reinterpretation, at least for the duration of this presidency.
