Ghost Guns and the Mischief Rule

Yesterday's argument in Garland v. VanDerStok was about a statutory interpretation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. At issue is whether the statute allows the ATF to regulate "ghost guns," which are made from do-it-yourself kits and which allow users to evade serial number and background check requirements. Given the tenor of oral argument, the Court seems likely to side with the ATF.

Solicitor General Prelogar made a reference to an "anti-circumvention" principle, and there is a good basis for that principle in a traditional statutory interpretation doctrine. In The Mischief Rule, I describe two functions of the mischief rule: providing a stopping point (a phrase borrowed from Richard Re) and preventing evasion close to the line. The first function predominates and the second is rare. The first function prevents the executive or the courts from taking an old statute and applying it to a new mischief. The second function lets the executive or the courts keep someone from circumventing an old statute with respect to the old mischief.

The ghost guns case, and perhaps most of the recent spate of cases involving expansive agency definitions of gun terms in statutes, can be thought of as instances of the second, less common function of the mischief rule. A ghost gun kit is an obvious circumvention of the tracing related rules (serial numbers, background checks, etc.). The anti-circumvention idea the Solicitor General mentioned is well within the mischief rule, a traditional principle of statutory interpretation.