The fight over “ghost guns” is back before the justices.
The Supreme Court announced on Monday that it will hear Garland v. VanDerStok, a case that could open up a massive loophole in US gun laws, effectively neutralizing federal laws requiring gun buyers to submit to a background check, and also requiring guns to have a serial number that law enforcement can use to track them.
That outcome, however, is fairly unlikely. The Court has already heard this case twice on its “shadow docket” — a mix of emergency motions and other matters that the Court typically handles on an expedited basis. And the Court has twice ruled against gun manufacturers seeking to weaken federal law, albeit on a temporary basis both times.
So the Court’s decision in VanDerStok is likely to make permanent what the Supreme Court already said in these two temporary decisions. Nevertheless, the stakes in this case are high and the outcome is not entirely certain. The first time this case arrived at the Court, the justices split 5-4 on whether to drastically weaken US gun laws, with Chief Justice John Roberts and Justice Amy Coney Barrett crossing over to vote with the Court’s three Democratic appointees.
The case involves “ghost guns,” weapons that are sold dismantled and in ready-to-assemble kits. A decision by three Trump appointees on the United States Court of Appeals for the Fifth Circuit would exempt these ghost guns from the laws requiring background checks and serial numbers. The decision of these three Trump judges is now before the Supreme Court.
The laws mandating background checks and serial numbers apply to “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” It also applies to “the frame or receiver of any such weapon,” the skeletal part of a firearm that houses other components, such as the barrel or trigger mechanism. Thus, even if someone purchases a series of firearm parts to assemble a gun at home, they will still face a background check when they purchase the gun’s frame or receiver.
According to the Justice Department, it is often trivially easy to convert a ghost gun kit’s incomplete frame into a fully operational one. For example, some kits allow a ghost gun buyer to build a working firearm after drilling a single hole in the kit’s frame. Others merely require the user to sand off a small plastic rail.
So ghost guns are a fairly obvious effort to evade federal gun regulations by selling weapons that are about 99 percent complete, and then claiming that they do not meet the federal definition of a firearm subject to certain laws.
The Fifth Circuit bought this argument, claiming that a frame that is missing a single hole, or a receiver that needs to be sanded down a little are “not yet frames or receivers.” The three Trump judges also claimed that ghost guns do not count as a weapon that “may readily be converted” into a working gun because this phrase “cannot be read to include any objects that could, if manufacture is completed, become functional at some ill-defined point in the future” — even if only a trivial amount of work would be necessary to make the gun function.
It is likely that a majority of the justices will again vote that ghost guns must be subject to the laws governing background checks and serial numbers. But, given how close the Court’s first vote in this case was, there is at least some risk that a justice could flip their vote and allow ghost guns to proliferate.
