Washington — The Supreme Court will convene Tuesday to consider a challenge to the Biden administration’s efforts to regulate untraceable firearms known as ghost guns, as major American cities report the measure seems to have caused a reduction in the use of these weapons within their borders.

The court fight involves a 2022 regulation from the Bureau of Alcohol, Tobacco, Firearms and Explosives that sought to ensure the difficult-to-trace weapons known as ghost guns are subject to the same requirements as commercial firearms sales. The issue before the justices is not whether Second Amendment rights were violated, but rather if the Biden administration went too far when it issued the rule.

The case may sound similar to one before the high court in its last term that involved a ban on bump stocks put in place during the Trump administration. In that instance, the Supreme Court’s conservative majority invalidated the regulation that outlawed the devices, finding that ATF exceeded its authority by issuing a rule that classified a bump stock as a “machine gun.”

But legal experts say the Supreme Court’s ruling four months ago may not be a harbinger of whether the ghost gun regulation will fall, and in this case, Chief Justice John Roberts and Justice Amy Coney Barrett, two members of the court’s conservative wing, will be the key members to watch.

“The government has a much stronger case here that the products the challengers are selling should be covered under a plain reading of the Gun Control Act,” said David Pucino, deputy chief counsel and legal director at Giffords Law Center, which is urging the Supreme Court to uphold the rule. “The products are readily convertible into firearms.”

The ghost gun regulation

The 2022 measure at the heart of the case clarified the definition of “firearm” in the Gun Control Act of 1968 to include a weapon parts kit that can be readily assembled into an operational firearm and the incomplete frame of a handgun and receiver of a rifle. The 56-year-old law regulates the commercial firearms market, and it lays out requirements for gunmakers, sellers and purchasers.

The rule is intended to address a proliferation of crimes using ghost guns, which can be made from 3D printers or kits and parts available to buy online. In a four-year span from 2017 to 2021, there was a roughly tenfold increase in the number of ghost guns submitted to ATF by law enforcement agencies for tracing, according to the Biden administration.

But ghost guns don’t have serial numbers or transfer records, as required for commercially sold firearms, which makes it difficult for ATF to trace them to their buyers. The Biden administration argues this makes ghost guns attractive to those who legally cannot buy firearms or plan to use them in crimes.

To address the spike in these untraceable firearms, the Biden administration issued its rule regulating ghost guns, which it said allow anyone with “basic tools and rudimentary skills” to build a fully functional firearm in less than 30 minutes.

By amending the definition of a firearm under federal law to cover weapons parts kits, the rule requires the manufacturers and sellers of ghost guns to be licensed, mark their products with serial numbers, run background checks of buyers and keep transfer records, as commercial makers and sellers of firearms must do.

A group of 20 major cities, including Baltimore, Boston and Chicago, said in filing the rule is starting to curb the prevalence of ghost guns in their municipalities and around the country. In New York, for example, ghost-gun recoveries dropped last year for the first time in four years, and in Baltimore, they decreased in 2023 for the first time since 2019.

If it is left intact, the cities said they believe “the problem of ghost guns will be further ameliorated over time.”

Garland v. VanDerStok

The Biden administration’s rule doesn’t prohibit people who can legally have guns from buying weapon parts kits or making a firearm at home. But after the new requirements took effect, a group of gun owners, advocacy groups and the makers of weapon parts kits challenged the legality of the rule, arguing that ATF’s definition of firearm exceeds the one written by Congress decades ago.

A federal district judge invalidated the rule last year, finding that ATF cannot regulate the firearm components in keeping with federal law. A three-judge panel on the U.S. Court of Appeals for the 5th Circuit agreed, concluding that the rule exceeded Congress’ limits on agency authority.

The Supreme Court agreed to review the 5th Circuit’s decision, and when it did, it had already been asked to provide emergency relief in an earlier stage of litigation. In August 2023, the high court divided 5-4 in agreeing to halt the district court’s order striking down the ghost gun rule. Roberts and Barrett joined with the three liberal justices to allow the Biden administration to enforce the measure, and it will remain in place until the Supreme Court issues its decision, likely by the end of June 2025.

Andrew Willinger, executive director of the Duke Center for Firearms Law, said the court’s earlier action provides “some clues about how the justices may be thinking.”

Because four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh —  noted their opposition to letting ATF enforce the regulation last year, he said it’s a “pretty clear indication” they would vote to uphold the 5th Circuit’s ruling invalidating the measure.

“That suggests it could be a 5-4 decision upholding the rule or at least in part, and key votes would be the chief justice and Justice Barrett,” Willinger said. “It seems like there’s more of an intuitive case that these gun assembly kits are firearms in natural parlance.”

The Biden administration has likened an assembled ghost gun to Ikea furniture, and said the Swedish furniture giant couldn’t get away with not paying a hypothetical tax on the sale of tables, chairs, couches and bookshelves by saying it sells “furniture parts kits” that have to be assembled by the buyer.

“So too with guns: A company in the business of selling kits that can be assembled into working firearms in minutes — and that are designed, marketed, and used for that express purpose — is in the business of selling firearms,” Solicitor General Elizabeth Prelogar, who argues on behalf of the government before the Supreme Court, wrote in a filing for the justices. 

She warned that affirming the 5th Circuit’s decision would transform the 1968 law’s definition of firearm into an invitation to skirt its requirements, since felons, minors and others who can’t legally have guns could just buy and build them from online parts retailers and circumvent a background check.

“Anyone seeking an untraceable gun for use in crime could do the same thing, evading the act’s serialization and record-keeping requirements,” Prelogar said. “As it has done before, the court should decline to adopt such a self-defeating construction of the act.”

But the challengers have argued that the changes made by ATF when it issued the regulation two years ago are “inconsistent” with the definition of a firearm. An incomplete collection of parts isn’t a “weapon,” they wrote in a Supreme Court filing, and it’s up to Congress, not ATF, to decide whether privately made guns should be regulated.

“The expected result of ATF’s Rule was not simply to regulate this industry but to destroy it,” lawyers for Jennifer VanDerStok, a Texas woman who owns firearms components and challenged the measure, wrote.

The retailers and advocacy groups put forth their own comparison for the parts kits used to make ghost guns, juxtaposing the components a hobbyist would buy to build their own firearms with the tools and materials that a hardware store would sell with plans for a woodworking project.

“By turning to the market for assistance with making firearms, modern do-it-yourselfers are similar to their Founding-era forebears,” they argued. “The government’s regulations will make this much more difficult.”

But Willinger, of Duke, said the statute at issue in this case is better for the government, because it includes language about things that “may be readily converted to a firearm.”

The Supreme Court has through numerous recent decisions sought to rein in federal agencies that it believes have exceeded the authority granted by Congress, including in the bump stock case and when it struck down President Biden’s plan to provide sweeping relief from student loan debt last year. 

But the most significant of its decisions on regulatory power was its overturning of a 40-year-old decision that required courts to defer to an agency’s interpretation of an unclear law passed by Congress if it is reasonable.

Pucino, of Giffords, said that if the Supreme Court adds the ghost guns regulation to that string of decisions, it could not only hamstring future administrations who may seek to impose firearms restrictions unilaterally but also empower a subset of the gun industry that is selling its products outside of the regulatory system already in place.

Pointing to the explosion of crimes involving ghost guns, he said “the very system of regulating guns in this country for the purpose of keeping them out of the hands of criminal actors” is at stake in this case.

A decision is expected by the end of June 2025.