Supreme Court Takes Up ATF's Unilateral 'Ghost Gun' Rules

Can the government regulate objects that resemble unfinished firearm parts as if they are guns because, with tools and effort, they might be turned into working components? More specifically, can a federal agency start doing that via a reinterpretation of the law, and threaten noncompliant people with prosecution on its own initiative, without an act of Congress? The Supreme Court has now agreed to weigh in on those issues after lower courts rejected federal efforts to turn many Americans into felons by reinterpreting established legislation.

The Supreme Court's announcement that it will consider arguments came in the form of a brief Monday notice that certiorari was accepted in the case of Garland v. VanDerStok.

Government Regulators Chase Ghosts

At issue are so-called "ghost guns"—homemade firearms that are often crafted from "80 percent" kits including unfinished parts that hobbyists complete in their own workshops. The "ghost" designation comes from the absence of factory-provided serial numbers, making the DIY guns harder to trace and record. To this day, on its website, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) specifies that "ATF has long held that items such as receiver blanks, 'castings' or 'machined bodies' in which the fire-control cavity area is completely solid and un-machined have not reached the 'stage of manufacture' which would result in the classification of a firearm according to the GCA," referring to the Gun Control Act of 1968.

Like any craft, gun-making has always had fans. It became increasingly popular in recent years, spurring the creation of an industry that serves the needs of aficionados who want to evade monitoring and restrictions by intrusive government officials. It's also a lot of fun; my son and I made an AR-15 from an 80 percent receiver as a homeschooling project. Former Reason producer Mark McDaniel similarly built a pistol from a kit.

Since government officials don't like rebellious subjects, the Biden administration, knowing new gun control measures were unlikely to survive a trip through Congress, pressured the ATF to act unilaterally. The result was a redefinition of the law in an attempt to regulate non-functional objects—paperweights for all intents and purposes—that I described at the time as "hundreds of pages of firearms regulations that are as clear as mud and leave experts in the field disagreeing over the interpretation." Henceforth, items that are "readily convertible" into firearms in the eyes of ATF agents will be regulated as such. Well, maybe.

Redefined Laws Meet Skeptical Judges

"A part that has yet to be completed or converted to function as frame or receiver is not a frame or receiver," Judge Reed O'Connor of the U.S. District Court for Northern Texas wrote last year in ruling on a lawsuit brought by Jennifer VanDerStok, Blackhawk Manufacturing Group, and other plaintiffs. "ATF's declaration that a component is a 'frame or receiver' does not make it so if, at the time of evaluation, the component does not yet accord with the ordinary public meaning of those terms."

Since the law gives the ATF the power to regulate firearms and not stuff that, like much of the plumbing section of a hardware store, might be turned into firearms with work, O'Connor found the rewriting of the rules to be an "unlawful agency action taken in excess of the ATF's statutory jurisdiction. On this basis, the Court vacates the Final Rule."

The federal government had no better luck at the appeals court level before a panel of equally unreceptive Fifth Circuit judges.

"ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to 'do something' with respect to gun control. But it is not the province of an executive agency to write laws for our nation," Judge Kurt D. Engelhardt wrote for himself and Judge Don Willett in largely upholding O'Connor. "That vital duty, for better or for worse, lies solely with the legislature."

"Unless and until Congress so acts to expand or alter the language of the Gun Control Act, ATF must operate within the statutory text's existing limits," Engelhardt continued. "The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law. This it cannot do, especially where criminal liability can—and, according to the Government's own assertions, will—be broadly imposed without any Congressional input whatsoever."

"The Final Rule is limitless," marveled Judge Andrew Oldham in a pointed concurrence that supported the majority "without qualification" but sought to more harshly spank the ATF. "It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn't stop regulating the metal or plastic until it's melted back down to ooze. The GCA allows none of this."

Both Plaintiffs and Defendants Wait on the Supreme Court

Despite the brutal courtroom slapdown, the ATF's new frame and receiver rule remains in place. Last August, the Supreme Court issued a stay of O'Connor's ruling, pending the case's journey through the legal system to the Court of Appeals for the Fifth Circuit Court and, ultimately, the highest court in the land. With the acceptance of VanDerStok, arguments will be heard in the fall, with a final decision coming some time after.

Despite obvious disagreement between the federal government and the VanDerStok plaintiffs over the limits of the ATF's authority to unilaterally rewrite law, both wanted the Supreme Court to take the case.

"By agreeing to hear our case, the Supreme Court will have the opportunity to put ATF firmly in its place and stop the agency from unconstitutionally expanding its gun control agenda," commented Firearms Policy Coalition Action Foundation President Cody J. Wisniewski, counsel for plaintiffs. "We look forward to addressing this unlawful rule in the Court's next term."

Even if the Supreme Court rejects the lower court rulings and decides against VanDerStok and for the ATF, that might be the final word on the law, but not on ghost guns. Home manufacture of firearms developed from a hobby into an act of resistance against an intrusive state. Reinterpreting how the rules define guns won't do anything to dissuade people from trying to exercise liberty and escape control.