Interesting -- as far as it goes. It serves as a reminder of the importance of winning elections, as we'll see soon, or so gun-rights groups have to hope. 

In 2022, the Biden administration passed new restrictions on so-called "ghost guns," kits from which hobbyists and others could build firearms. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE, or more commonly the ATF) promulgated a rule using the Gun Control Act of 1968 (GCA) to require that such home-built firearms comply with all other regulations that apply to fully manufactured firearms. That requires federal licensing for the manufacturers and sellers, properly assigned serial numbers, and conducting background checks on buyers, among other mandates.

Gun-rights advocates immediately sued to block implementation of the new ATF rule, and succeeded at the district court and on appeal. In a somewhat surprising result, however, a 7-2 Supreme Court majority led by Justice Neil Gorsuch reversed those decisions and reinstated the rule:

The Supreme Court on Wednesday upheld federal restrictions aimed at curtailing access to kits that can be easily assembled into homemade, nearly untraceable firearms.

In a 7-to-2 decision, written by Justice Neil M. Gorsuch, one of the court’s conservatives, the justices left in place requirements enacted during the Biden administration as part of a broader effort to combat gun violence by placing restrictions on so-called ghost guns.

The ruling in favor of gun regulations is a departure for the court, which has shown itself to be skeptical both of administrative agency power and of gun regulations. Two conservative justices — Samuel A. Alito Jr. and Clarence Thomas — each filed dissents.

This may not even be all that surprising. While the Supreme Court has grown noticeably skeptical about agencies and regulation, this isn't a case where the now-repealed Chevron deference would have applied. The key question here was whether the GCA could apply to component parts that did not qualify as firearms in and of themselves. Despite the rulings of the lower courts, the majority did find that the GCA (and therefore the ATF's jurisdiction) applies to component parts that are manufactured with the intent to assemble a firearm. 

Does that mean that the rule will automatically go into effect against "ghost guns"? Gorsuch cautions that this is a "facial" challenge to the rule itself and the ATF's authority to enforce it. Plaintiffs may have other ways to challenge the specifics of the rule itself, Gorsuch suggests:

As presented to us, this case does not ask us to resolve whether ATF’s new regulations in §478.11 and §478.12 may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a “facial” pre-enforcement challenge to the agency’s authority to regulate any weapon parts kits or unfinished frames or receivers. 680 F. Supp. 3d, at 766; 86 F. 4th, at 186. In a challenge like that, the government represents, “the possibility that [ATF’s regulation] may be invalid as applied’ in some cases ‘does not mean that the regulation is facially invalid.’ Instead, [the plaintiffs’] burden is to show that the Rule itself is inconsistent with the statute on its face.” Brief for Petitioners 27–28 (quoting INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 188 (1991) (addressing a facial challenge under the Immigration and Nationality Act)). Nowhere in either of their briefs before us do the plaintiffs dispute that assessment.  Accordingly, we take it as given for our purposes here.

With that said, the majority see the kits as having only one real purpose -- to assemble firearms. They see that as satisfying the criteria for regulation within the statutory language of the GCA:

In doing so, we turn first to the question whether §478.11’s provisions addressing weapon parts kits are inconsistent on their face with the GCA. The answer turns on subsection (A) of §921(a)(3). There, remember, the GCA authorizes ATF to regulate “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Inhering in this language are two requirements. First, a “weapon” must be present. Second, that “weapon” must meet one of three criteria: It must be able to expel a projectile by the action of an explosive, designed to do so, or susceptible of ready conversion to operate that way. As the Fifth Circuit saw it, §478.11’s provisions addressing weapon parts kits are facially invalid because no weapon parts kit can ever satisfy the statute’s two requirements. We disagree because, to our eyes, at least some kits will satisfy both.

This argument didn't satisfy Justice Samuel Alito during oral arguments, as the New York Times reports:

“If I show you — I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper and onions, is that a Western omelet?” Justice Alito asked.

Nor did Alito sound any more convinced in his dissent, minus the Western omelette. Alito rebuked the court for not using the proper test for challenging a rule, which would have instructed them to not intervene at this stage. As a result, Alito's dissent provides a highly technical argument against this decision which is somewhat opaque to this layman's eyes.

Justice Clarence Thomas offered a lengthier dissent that rebuked the court for its reinterpretation of terms in the GCA to uphold the rule. The issue of firearms "kits" or "ghost guns" should have gone to Congress to add statutory jurisdiction for the ATF, he writes in his conclusion:

Congress could have authorized ATF to regulate any part of a firearm or any object readily convertible into one. But, it did not. I would adhere to the words Congress enacted. Employing its novel “artifact noun” methodology, the majority charts a different course that invites unforeseeable consequences and offers no limiting principle. I respectfully dissent. 

That argument is convincing, although disputed by Gorsuch in a footnote on page 17:

Separately, the dissent seems to dismiss the possibility that Congress might use an artifact noun in a way that encompasses incomplete objects. Post, at 15–16 (opinion of THOMAS, J.). But the dissent does not dispute that our task here, as ever, is to interpret the words Congress enacted “consistent with their ordinary meaning.” Wisconsin Central Ltd. v. United States, 585 U. S. 274, 278 (2018). Nor does the dissent dispute that ordinary speakers sometimes uses artifact nouns to reach incomplete objects. In fact, the dissent ultimately concedes that even Congress “might sometimes” do the same. Post, at 16, n. 7 (opinion of THOMAS, J.). At bottom, then, the dissent’s only point appears to be that “traditional methods of statutory interpretation” should guide us in assessing whether Congress meant for a particular artifact noun to reach incomplete objects. Ibid. On that, we agree. And here, as we have seen, one of the most traditional tools for discerning statutory meaning—contextual clues found in the pertinent statute itself—suggest that Congress used the term “weapon” to reach at least some unfinished instruments of combat. In saying as much, we do not suggest that Congress always uses artifact nouns to reach incomplete objects—only that we are persuaded it did so here.

That argument is unconvincing. Homemade firearms existed at the time of the GCA too; if Congress wanted to grant authority and jurisdiction over components to the ATF as well as completed firearms, Congress could have written it into the statutes. And in fact, Congress could have acted at any time between then and now to do so. Congress could have acted in 2022 at the time of the regulation to add that authority; Democrats controlled both chambers at that time, after all.

At any rate, this may all become moot shortly. The ATF issued the rule, and the ATF can revoke it, too. Will Attorney General Pam Bondi order a repeal of the rule? We'll see shortly; she will have to follow the Administrative Procedure Act to do so, which will take a few months. Now that the Supreme Court has reinstated it, the onus now falls on Bondi and Donald Trump to deal with it politically -- which is where it properly belongs. 

Cam Edwards and I will likely discuss this in our VIP Gold chat in less than an hour. Be sure to join us!

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