Ghost Gun Crackdowns and Foreshadowing Future Regulation

On October 8th, the U.S. Supreme Court heard oral arguments in the Garland v. VanDerStok case that will determine the answer to this contestation: are firearms parts kits technically classified as firearms under the Gun Control Act (GCA) of 1968? Spectators anticipate the Court will say yes. These kits, colloquially known as “ghost guns,” are officially classified as privately made firearms by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). They are untraceable, unserialized, unregulated, and do not require any background checks to purchase. As U.S. Solicitor General Elizabeth Prelogar points out, kits manufacturers advertise their guns as “ridiculously easy to assembl[e] and dummy-proof,” touting that you can go from opening the mail to having a fully functional gun in as little as 15 minutes by merely drilling a couple of holes. The Biden Administration and Attorney General cracked down on ghost gun manufacturing with the ATF 2021R-05F Final Rule following a ten-fold increase in ATF seizures, arming of mass shooters, extremist groups, and children as young as 13 years old.

Under the GCA, a “firearm” is defined as “any weapon…which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon” 18 U.S.C. 921(a)(3)(A) and (B). Everytown for Gun Safety explains these parts for those unfamiliar with the jargon. Lawyer Pete Patterson, representing gun rights groups primarily under the Firearms Policy Coalition, argued that the barrier of drilling holes in the frame or receiver does not constitute the “readily converted” standard stated in the GCA that falls under government regulation. He suggests instead that the “critical machining operations” standard be adopted, colloquially known as “the 80 percent rule”. This “rule” states that  items at a preliminary manufacturing stage (defined by challengers as less than 80% complete) does not meet the definition of “firearm frame” or “receiver”. Last reviewed in 2020, the “80% rule” is not an enforced statute and the ATF does not enforce its use– a decision made two years prior to the ATF 2021R-05F “Final Rule” spearheaded by the Biden Administration and the U.S. Department of Justice’s launch of the National Ghost Gun Enforcement Initiative.

To many conservatives’ chagrin, even the current Supreme Court has substantial reservations regarding ghost guns’ legal status. Supreme Court Justice Amy Coney Barrett dismissed Patterson’s proposed legal framework as “a little made up” and noted that it has no basis in statute, not to mention it is elusive and inscrutable to adjudicate. Dismissing the difference between ghost guns and completed guns as immaterial, Barrett says, “It’s just sort of a way of allowing for a de minimis exception, right?” When asked about the purpose of selling a receiver without the holes drilled in, Patterson harkened that people may buy a ghost gun kit because they enjoy building guns. Striking down Patterson’s hobbyist argument, Chief Justice John Roberts 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.” The Court’s skeptical responses suggest that even among conservative justices, there is limited support for ghost gun protections under such unconvincing arguments. Experts anticipate the court will uphold the Final Rule permanently after having granted certiorari in “shadow docket” Case No. 23-852 and allowing the Final Rule to remain in effect pending definitive resolution on the merits (after the Fifth Circuit had declined to issue such a stay) (Willinger, Duke Center for Firearms Law). 

At first glance, this might indicate that Biden was able to move the needle towards commonsense public protection through the Final Rule’s enforcement. However, in many ways, this decision is a red herring – though any movement on gun regulation adds a layer of protection for the American public, the reality is that Patterson’s argument is simply not compelling enough to hold up under scrutiny. “I think it’s really notable,” Solicitor General Elizabeth Prelogar said, addressing the Court on behalf of the Biden Administration, “that none of the major gun manufacturers [are] suing us about this [Biden’s Final] rule, and the reason for that is because they have abided by the ‘readily converted’ standard for more than 50 years, since the Gun Control Act became law.” The decision is a momentary departure from allowing bump stocks, which convert semi-automatic rifles into machine guns, in Garland v. Cargill – another gun case that interestingly, does not implicate the 2nd Amendment. Yet New York State Rifle & Pistol Association v. Bruen (2022) requires courts to strike down any gun law that is not “consistent with this Nation’s historical tradition of firearm regulation,” a test so ambiguous that more than a dozen judges have published judicial opinions pleading for clarification on what, exactly, Bruen means (Millhiser). 

Prelogar urged the Court to consider the “practical ramifications” of Patterson’s argument “that a single undrilled hole is enough to exempt a product from regulation.” Also in the oral arguments, she said, “They’ve advertised the products, in their words, as ‘ridiculously easy to assembly and dummy-proof’ and touted that you can go from opening the mail to have a fully functional gun in as little as 15 minutes, no serial number, background check, or records required,” she said. In fact, Prelogar said, she herself had put one together.

The Final Rule intends to address advances in firearm part accessibility and manufacturing, merely keeping pace with technological changes in assembly and component distribution while preserving the original intention of the law. Regardless of the decision ultimately made, it will have an immense impact on the firearm industry for manufacturers, consumers, and law enforcement.

Margo Donohue is a junior concentrating in International and Public Affairs (POL/GOV) and Environmental Studies (Inequality). She can be contacted at margo_donohue@brown.edu.