The so-called ghost gun has made a lot of news. It's the terrifyingly untraceable firearm that we just had to do something about, so President Joe Biden's ATF issued regulations that sought to require serial numbers on incomplete receivers and other measures designed to make these guns more traceable.
Never mind that gun tracing doesn't work the way some people actually think, but that's what happened.
After the Cargill decision upended the similar bump stock ban, though, I was confident that the "ghost gun" regulations (Bondi v. Vanderstok) weren't going to be upheld by the Supreme Court. After all, this was another regulatory action that seemed to me to be a clear overreach.
Unfortunately, it seemed the Supreme Court disagreed. To the tune of 7-2, at that.
In writing the majority's opinion, Justice Neil Gorsuch argued that the federal Gun Control Act regulates firearm sales in total, and that nothing the ATF did in regulating "frames and receivers" – basically kits for making your own firearm that come with an incomplete receiver – wasn't "facially inconsistent" with the act.
My friend Cam Edwards, writing at our sister site Bearing Arms, notes, "Remember, under a facial challenge the rule must be found to always violate a particular statute; in this case the APA." He added, "Even after today's decisions, manufacturers could bring an as-applied challenge to the rule, and the Trump administration could also formally repeal the rule on its own."
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So, there's a bit of good news.
However, I also disagree with Gorsuch.
My issue with Gorsuch's argument that the ATF isn't "facially inconsistent" with the Gun Control Act lies in the fact that these aren't guns in the first place. They can't be assembled into a functioning firearm without a certain degree of work being done before that's remotely possible. They're just hunks of material, be they plastic or steel.
They're simply not firearms.
This was the ATF's official stand for decades. In fact, it still says as much.
Essentially, the fact that these incomplete receivers that most assuredly aren't guns might be sold with other parts that could feasibly be turned into a gun somehow turns them into actual firearms, even though no actual assembly can be completed without the work needed to make the receiver itself – the part of the firearm that is considered a gun by the ATF – a functional firearm.
It's beyond ridiculous.
If there's an upside here, it's in the fact that this isn't a Second Amendment case. This was a regulatory case – could the ATF decide to dictate serial numbers on parts that weren't actually firearms without an act of Congress?
That means, hypothetically, any Second Amendment argument regarding the regulation has remained untouched.
I wouldn't hold my breath on that meaning all that much, though.
Then, there are the possible challenges noted by Edwards in his piece on the decision. That might provide a far more profitable outcome should someone pursue that, though I can't say for certain.
Honestly, if this ruling is what we were supposed to expect to get out of a pro-gun Supreme Court, I'm not sure that it's doing us nearly as much good as I'd expected. Gorsuch, Kavanaugh, and Barrett were incredibly disappointing in this one.
Roberts, well, is always disappointing.
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