Supreme Court justices seem inclined to OK Biden’s 'ghost-gun' rule

A Supreme Court argument about the government’s ability to ban so-called ghost guns took some unusual turns Tuesday as the justices mused about grocery orders, western omelets and the challenges of assembling IKEA furniture.

By the end of the oral arguments, it appeared that a rule the Biden administration issued two years ago cracking down on the sale of often-untraceable gun kits on the internet would likely get enough votes from the justices to survive a challenge from makers of the products.

The case prompted the justices to turn to real-world examples as they wrestled with the question of how complete a firearm — or the frame or receiver of a gun — must be before they are subject to a federal law that mandates background checks for purchasers and the recording of serial numbers that can be used to trace the use of weapons in crimes.

“Is it the case that components that can easily be converted into something constitute that thing before they are converted as a matter of ordinary usage?” Justice Samuel Alito asked Solicitor General Elizabeth Prelogar, who argued in favor of preserving the ghost-gun rule.

“I’m going to show you: here’s a blank pad and here’s a pen,” Alito said, holding up a yellow notepad in one hand and a pen in the other. “Is this a grocery list?”

“There are a lot of things you could use those products for to create something other than a grocery list,” Prelogar replied, prompting Alito to shift to another example to make his point that a kit of parts to build a gun isn’t necessarily a “weapon.”

“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?” Alito asked.

Prelogar again said no, because even that collection of ingredients could be used to make something else, while the parts kits at issue in the case “have no other conceivable use” beyond making a firearm.

Alito’s foray down the grocery aisle prompted Justice Amy Coney Barrett to chime in.

“Would your answer change if you ordered it from Hello Fresh and you got a kit and it was like turkey chili, but all of the ingredients are in the kit?” Barrett asked.

“We would recognize that for what it is,” Prelogar responded. “It doesn’t stretch plain English to say I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them.”

Barrett’s in-court rebuttal to Alito Tuesday morning was notable because she was one of two conservative justices who joined with the three liberal justices last year to allow the ghost-gun rule to take effect despite lower-court rulings that put it on hold on the grounds that it exceeded the authority Congress granted to federal officials in the Gun Control Act of 1968.

Chief Justice John Roberts also sided with the liberals in that vote and he, too, sounded skeptical Tuesday about the notion that the federal government could regulate weapons but not kits that could be fashioned into them.

A lawyer for the gun-kit makers, Peter Patterson, told Roberts that some hobbyists relish the opportunity to build their weapons rather than buy them off the shelf.

“Just like some individuals enjoy working on their car every weekend, some individuals want to construct their own firearms,” Patterson said.

But Roberts noted that many of the kits at issue require only very modest efforts, like some drilling, to convert them into operable firearms.

“Well, I mean, drilling a hole or two, I would think, doesn’t give the same sort of reward that you get from working on your car on the weekends,” the chief justice responded.

In addition to Barrett and Roberts, the liberal justices sounded supportive of the legality of the gun-kit rule.

Conservative Justice Neil Gorsuch, who voted last year to leave the rule blocked, seemed to be struggling with his position Tuesday and possibly inclined to accept at least part of the regulation.

Another conservative who voted earlier to keep the rule on ice, Justice Brett Kavanaugh, expressed concerns that it could allow criminal prosecution of hobbyists or others who genuinely believed the gun parts they had didn’t constitute a firearm subject to regulation.

Alito also insisted that the lines the government was seeking to draw were unduly murky, including the question of when a parts kit could be “readily” turned into a weapon.

“Some of us who do not have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we have purchased,” Alito said.

“I’m with you on that one, Justice Alito, as someone who struggles with Ikea furniture,” Prelogar replied, alluding to a line in the government’s brief asserting that IKEA couldn’t avoid charging sales tax on couches or bookshelves by claiming that it was only selling kits to make them.

The ghost guns case went before the high court just months after a decision that rejected a Trump administration regulation aimed at banning so-called bump stocks — attachments that allow semi-automatic weapons to fire volleys of bullets in a similar fashion to automatic weapons. That 6-3 ruling divided the court along ideological lines, with all six conservatives voting that the rule exceeded congressional authority and all three liberal justices indicating they would have upheld it.

The case argued Tuesday turns only on how the existing law should be interpreted and whether the Bureau of Alcohol, Tobacco, Firearms and Explosives went further in the ghost-gun regulation than Congress authorized. The arguments did not address whether the rules or other aspects of the federal law infringe on the constitutional right to bear arms. That right was dramatically broadened by the court two years ago, in a decision that is still reverberating in courts across the country as they address challenges the ruling spurred to longstanding gun-control measures.