The motivation for the rule may be questionable, but the statutory grounds for it are not.
The motivation for the rule may be questionable, but the statutory grounds for it are not.
L ike any good libertarian, I’m no fan of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) — or any other administrative agency, for that matter. But the Supreme Court was right to allow the ATF to proceed with its regulation of “ghost guns.”
The ATF’s rule interprets the definition of “firearm” in the Gun Control Act of 1968 (GCA) to include firearm kits and components. Previously, the definition was understood not only to apply to assembled guns, but to “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”
One might fairly argue, as the opponents of the ATF regulation did, that parts of a weapon are not to be confused with an actual weapon. But this isn’t the only definition of “firearm” in the GCA.
To quote the law verbatim, “The term ‘firearm’ means . . . any destructive device.” A destructive device is then defined as, among other things, “any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B)” (emphasis added).
And what does subparagraph (B) describe? “any type of weapon . . . by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant.”
As a born-and-raised Brooklynite, I’m not too familiar with firearms, but kits that can be assembled “into a fully functional firearm in as little as 20 minutes,” if Solicitor General Elizabeth B. Prelogar is to be believed, clearly fit the bill’s definitions.
Prelogar also defended the ATF rule on the grounds of “the urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms.” This raised the question: Are so-called “ghost guns” really responsible for an uptick in gun crime?
Debates surrounding ATF statistics and classifications of “ghost guns” abound, as Adam Liptak describes in his piece for the New York Times. Data from the Centers for Disease Control and Prevention are less contentious: Between 1968 and 2021, gun murders stayed between four and seven per 100,000, as described by Pew.
The ATF’s regulation of these guns does not ban the sale of kits and components; it merely requires manufacturers and sellers to inscribe serial numbers and conduct background checks, respectively, as is already required of those selling assembled firearms.
While the Court released neither an explanation for its majority opinion nor any dissents, creative analogies to self-assembled Ikea furniture and taco ingredients were provided by proponents and opponents of the rule, respectively. Judge Reed O’Connor of the Federal District Court of Northern Texas was unpersuaded by the Ikea metaphor and struck down the regulation in July.
I agree with Judge O’Connor that “it is not the role of the judiciary to correct” legislative loopholes in order to achieve a certain outcome. But this is not a case of an administrative agency violating the non-delegation doctrine and assuming legislative powers. The ATF is instead fulfilling a core constitutional duty of the executive branch: enforcing the law.