The Supreme Court on Tuesday agreed to freeze a lower court order that bars the government from regulating so-called ghost guns – untraceable homemade weapons – as firearms under federal law.
The brief order grants the Biden administration’s request to allow the regulations to remain in effect while legal challenges play out.
Ghost guns are kits that a user can buy online to assemble a fully functional firearm. They have no serial numbers, do not require background checks and provide no transfer records for easy traceability. Critics say they are attractive to people who are legally prohibited from buying firearms.
The vote was 5-4. Chief Justice John Roberts and fellow conservative Justice Amy Coney Barrett joined with the court’s three liberals to allow the rule to take effect.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have denied the application.
In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives updated its regulations to define the kits as firearms under the law so that the government could more carefully track them.
The rule does not prohibit the sale or possession of any ghost gun kit, nor does it block an individual from purchasing such a kit. Instead, it requires compliance with federal laws that impose conditions on the commercial sale of firearms. Those conditions include requirements that commercial manufacturers and sellers mark products with serial numbers and keep records to allow law enforcement to trace firearms used in crimes.
In late June, Judge Reed O’Connor of the United States District Court for the Northern District of Texas held that the agency had exceeded its authority in promulgating the rule and blocked it nationwide. A federal appeals court declined to put on hold two key challenged provisions of the regulation.
In the emergency filing with the Supreme Court, Solicitor General Elizabeth Prelogar warned the justices that over the last several years “police departments around the Nation have confronted an explosion of crimes involving ghost guns.”
“Congress recognized that limiting the federal firearms laws to functional firearms would invite evasion, and it thus broadly defined ‘firearm’ to include any weapon ‘that will or is designed to or may readily be converted to expel a projectile by the action of an explosive,’” Prelogar wrote.
The challenge to the ATF regulations was brought by two Texas residents who own components that they intend to manufacture into ghost guns for their personal use. The rule blocks them from being able to directly purchase additional parts. A handful of retailers of ghost gun kits as well as a gun rights’ group also challenged the rule.
Lawyers for the challengers said that the lower court judge had “correctly held” that the ATF had exceeded its authority in agreeing to “extend the definitions” of firearms to include ghost gun components.
“The Gun Control Act of 1968 reflects a fundamental policy choice by Congress to regulate the commercial market for firearms while leaving the law-abiding citizens of this Country free to exercise their right to make firearms for their own use without overbearing federal regulation,” David Thompson, their attorney, argued in court papers.
O’Connor noted in his order that Congress’ definition of a firearm does not cover “parts, or aggregations of weapons parts” regardless of whether the parts can be “readily assembled into something that may fire a projectile.”
“Even if it is true that such an interpretation creates loopholes that as a policy matter should be avoided, it is not the role of the judiciary to correct them,” O’Connor wrote at the time.
This story has been updated with additional details.
