Supreme Court casts skeptical eye toward unregulated ‘ghost’ guns

The Supreme Court on Tuesday appeared sympathetic to the Biden administration’s attempt to regulate “ghost” guns, whose kits and disassembled parts allow users to cobble together fully functional firearms.

Solicitor General Elizabeth Prelogar said the only reason someone would seek out a kit is to avoid a background check or a gun with a serial number — indicative of a person who wants a weapon for nefarious purposes.

“These guns were being purchased and used in crime. They were sold to be crime guns,” Ms. Prelogar said, arguing the government’s case before the justices. “The reason why you want a ghost gun is specifically because it’s unserialized and can’t be traced.”

She was defending a 2022 regulation by the Bureau of Alcohol, Tobacco, Firearms and Explosives that said gun kits that include all the parts, or receivers that include the main body of a weapon that just needs to have the final holes drilled and material scraped away, are close enough to manufactured guns that they fall under the 1968 Gun Control Act.

But Second Amendment advocates and the gun kit industry argued that the ATF stretched the law beyond what Congress intended.

“The agency’s interpretation is incorrect,” said Peter Patterson, who argued for gun rights groups. “ATF has expanded the definition of frame or receiver.”

The industry prevailed in a lower appellate court, but the justices have allowed the ATF rule to remain in place while the case is being argued.

During Tuesday’s oral arguments, the justices focused on the ease of converting a gun kit into a functioning firearm.

“My understanding is it’s not difficult for someone to do this,” said Chief Justice John G. Roberts Jr.

He wondered who is in the market for ghost guns. Mr. Patterson said it is hobbyists who want to have the satisfaction of completing a gun on their own.

But the chief justice said he doubted that was the case with the type of kits and parts being sold for fast completion.

“Someone who goes through the process of drilling one or two holes, taking the plastic out, he wouldn’t think he built that gun, would he?” Chief Justice Roberts asked.

Ms. Prelogar said ghost guns appeal to criminals specifically because the kits don’t require background checks and don’t come with serial numbers that allow the ATF to track them back to their purchase if they are recovered by police.

“Our nation had an explosion of crimes committed with those guns,” she said.

The justices invested a good bit of time trying to figure out the right analogy for where to draw lines between parts and a nearly finished weapon.

Justice Samuel A. Alito Jr. suggested a list of recipe ingredients, including eggs, chopped ham, onions and peppers. “Is that a western omelet?” he asked.

“No, because again, those items have well-known uses to become something other than an omelet,” Ms. Prelogar said.

“So your definition is a group of components that can readily be converted to something and have no other use,” Justice Alito said.

Justice Amy Coney Barrett then wondered what would happen if the ingredients were sold together and labeled as an omelet. “All of the ingredients are in the kit,” she said.

Ms. Prelogar said that would cross the line.

“If you bought from Trader Joe’s some omelet-making kit … that’s what is being recognized and sold,” the solicitor general said.

Justice Brett M. Kavanaugh worried about the government going after a seller who was “truly not aware” that what he was doing was illegal under the new standard. “You truly believe you’re not violating the law, could you be charged?” he asked.

Ms. Prelogar said she doubted the government would bring that case.