Biden’s ATF Begs Supreme Court to Save its “Ghost Gun” Regulations


The United States Solicitor General’s Office under President Joe Biden has asked the Supreme Court to hear Garland v. VanDerStok, which concerns federal “ghost gun” rules.

This is one of several Second Amendment-related cases the Supreme Court could hear next term. Although technically speaking, the VanDerStok case presents questions about the ATF’s legal authority under a specific Congressional statute, the implications of the high court’s decision in this matter will have significant ramifications on America’s firearms community.

Recently, the U.S. Court of Appeals for the Fifth Circuit found that the ATF could not regulate “unfinished” frames and receivers because they are not actually frames or receivers but are (as Judge Andrew Oldham put it) “unformed, unfinished pieces of metal.”

The Supreme Court doesn’t have to grant cert in this case, but it likely will: the Court usually grants an overwhelming majority of the cert petitions filed by the U.S. Solicitor General, particularly when a federal law or regulation has been declared invalid. This case has already gone up to the Supreme Court twice on emergency applications seeking a stay, which have been granted in favor of the federal government both times. Most recently, the Fifth Circuit ruled that the ATF lacked the authority when they promulgated their rule under the Gun Control Act of 1968 regulating so-called “ghost guns.” At that time the GCA was passed, a firearm was defined as having a “frame” or a “receiver,” one of which is also imprinted with a serial number pursuant to federal law.

Today, Americans are able to make and sell partially-formed raw materials to be made into do-it-yourself frames and receivers (without the serial number imprinted on them).

However, Biden’s Department of Justice wants to expand the scope of the regulation in order to include such raw materials as “unfinished” frames and receivers.

The entire point of the regulation is to regulate so-called “ghost guns” [aka homemade guns] out of existence and crush an important ancillary right to the Second Amendment, the right to build your own firearms. The Biden administration wishes to accomplish all of this without persuading Congress to pass such a statute.

The two questions presented by the Solicitor General to the Supreme Court are:

  1. “Whether ‘a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive,’ 27 C.F.R. 478.11, is a “firearm” regulated by the Act.
  2. Whether ‘a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,’ 27 C.F.R. 478.12(c), is a ‘frame or receiver’ regulated by the Act.”

It’s likely going to be very difficult to persuade the Supreme Court to broaden the statutory definition of “frame or receiver” to include the laundry list of items the Solicitor General named in her questions. The Court’s antipathy to the administrative state has been demonstrated repeatedly, including during oral argument in the Loper Bright case, where the Court is on the verge of eliminating the Chevron doctrine of deference.

Thus, I believe it is very likely that the Supreme Court will rebuke this sort of “pen and phone” regulation done by the Biden administration.

Some Second Amendment supporters may be concerned about VanDerStok given that Chief Justice Roberts and Justice Barrett sided with the government and agreed to stay the case pending appeal.  However, as I argued in a previous article, their prior rulings on emergency stay requests do not indicate future results or their final decision on the merits. Their decisions up to this point were likely influenced by factors extrinsic to the merits of the claims in the case, such as the desire for a more developed lower court record. Indeed, I think the Second Amendment community has a high likelihood of winning this case. The do-it-yourself firearm tradition has a long history in America. When it comes to the actual statutory dispute of whether a so-called “unfinished frame or receiver” constitutes a firearm, the Supreme Court will likely agree that it doesn’t.

The Supreme Court has demonstrated its impatience with administrative overreach in recent years. Last term’s Sackett v. EPA decision shrinking the scope of the federal Clean Water Act that had previously been used by the Biden Administration to interfere with individual citizens’ lives illustrates the point. So, too does the Supreme Court’s decision in Biden v. Nebraska striking down Biden’s attempt to forgive student loans. The fact that the Biden administration has continued to make end-runs around this ruling will only serve to increase the Court’s ire towards administrative overreach.

We are also likely to see another series of Second Amendment cases hit the Court’s docket next year in addition to VanDerStok. One such example is Reese v. ATF out of the Fifth Circuit, which the ATF is likely to lose. This case concerns the federal law, which prohibits 18-20-year-olds from purchasing a firearm from someone with a Federal Firearms License.

As a result, I think we are in for another productive year (2024-2025) for the Second Amendment before the Supreme Court. So, take heart and keep your powder dry as we gear up for another term filled with Second Amendment cases.

Read Related: Et tu, Justice Amy Coney Barrett? No, Justice Barrett is NOT a Traitor to 2A

About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.

His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
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