Supreme Court majority may embrace ATF's ghost gun rule (original) (raw)

SCOTUS-ghost guns arguments

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The conservative Supreme Court has been largely hostile to gun regulations in recent years. But today there were tentative signs that a majority of the justices have found a regulation they like. The question was whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority when it issued a new regulation that requires build-it-yourself gun kits to be treated the same way other gun purchases are treated. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: They're called ghost guns because the kits can be bought anonymously. They have no serial numbers, so they can't be traced, and there are no background checks on the buyers. In 2022, as the numbers of these build-it-yourself guns grew exponentially at crime scenes, the ATF issued a new rule classifying the kits as firearms under the 1968 Gun Control Act. The statute defines a firearm as any weapon that is, quote, "designed to or may readily be converted into a functional firearm."

The kit manufacturers challenged the rule in court, asserting that the ATF had exceeded its authority, and the Conservative Fifth Circuit Court of Appeals struck the rule down. The Biden administration appealed to the Supreme Court, which voted 5-4 to leave the regulation in place while it reviewed the case. And today a majority of the justices seem to think that the gun sellers were on pretty shaky ground. Arguing in support of the regulation, Solicitor General Elizabeth Prelogar said that if the manufacturers and sellers of these kits prevail, it would work a sea change in the nation's firearm laws.

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ELIZABETH PRELOGAR: They claim that if a firearm isn't a hundred percent functional, if it's missing just one hole that could be drilled in seconds and immediately assembled into a working gun, that product can be sold to anyone online with no background check, no records and no serial number.

TOTENBERG: Justices Thomas, Alito, Gorsuch and Kavanaugh all expressed some skepticism about that argument. The four were the likely dissenters when the court allowed the ghost gun regulation to remain in effect. Kavanaugh said his main concern was whether a kit seller who didn't know he was violating the law would be prosecuted. Prelogar responded that the U.S. Criminal Code requires willfulness in order to bring a criminal charge and that any manufacturer or seller who has doubts is able to get a dispositive ruling from the ATF as to whether the gun or gun kit is legal.

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BRETT KAVANAUGH: But if you haven't done that and you truly believe you're not violating the law, could you be charged under that provision? Is that something the government would do?

TOTENBERG: Prelogar said she couldn't imagine such a prosecution, and she noted that the gun kit sellers advertise their products as, quote, "ridiculously easy to assemble and a way to have a fully functional gun in as little as 15 minutes." Justice Kagan noted that sometimes there's an old statute that didn't contemplate a new problem. And if Congress can't get its act together, she asked, should an agency be able to take over what is really Congress' business? Here's Kagan.

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ELENA KAGAN: Is that a storyline that the respondents here can tell about this regulation?

TOTENBERG: No, relied Prelogar. This is an age-old problem that Congress was trying to fix and knew that there would be attempts to evade the law, and it wrote a statute to deal with that. I think it's really notable she said that none of the major gun manufacturers is suing us about this 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. Next up to the lectern was lawyer Pete Patterson, representing the gun sellers. He maintained that just because the kit buyer only has to drill a hole or holes in the frame or receiver part of the gun, that doesn't convert it into a weapon that can be regulated by the government. Rather, he said, the standard should be whether critical machining was necessary. Justice Barrett.

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AMY CONEY BARRETT: Doesn't appear in the statute. It seems a little made-up - right? - the critical machining test.

TOTENBERG: Chief Justice Roberts was just as doubtful.

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JOHN ROBERTS: I'm just - what is the purpose of selling a receiver without the holes drilled in it?

TOTENBERG: A decision is expected by the end of this term.

Nina Totenberg, NPR News, Washington.

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