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The Supreme Court agreed on Monday to hear a challenge to the Biden administration’s regulation of “ghost guns” — kits that can be bought online and assembled into untraceable homemade firearms.
In defending the rule, a critical part of President Biden’s broader effort to address gun violence, administration officials said such weapons had soared in popularity in recent years, particularly among criminals barred from buying ordinary guns.
The regulation, issued in 2022 by the Bureau of Alcohol, Tobacco, Firearms and Explosives, broadened the bureau’s interpretation of the definition of “firearm” in the Gun Control Act of 1968.
The new regulation did not ban the sale or possession of kits and components that can be assembled to make guns, but it did require manufacturers and sellers to obtain licenses, mark their products with serial numbers and conduct background checks.
Gun owners, advocacy groups and companies that make or distribute the kits and components sued to challenge the regulations, saying that they were not authorized by the 1968 law, which defined firearms to include weapons that “may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.”
Judge Reed O’Connor, of the Federal District Court for the Northern District of Texas, sided with the challengers and struck down the regulation in July, saying that “a weapon parts kit is not a firearm” and “that which may become or may be converted to a functional receiver is not itself a receiver.”
Judge O’Connor, who was appointed by President George W. Bush, added: “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. That is up to Congress.”
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge O’Connor’s ruling. All three members of the panel were appointed by President Donald J. Trump.
“Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct,” Judge Kurt D. Engelhardt wrote for the panel, “the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”
In urging the Supreme Court to hear the administration’s appeal in the case, Garland v. VanDerStok, No. 23-852, Solicitor General Elizabeth B. Prelogar said the appeals court’s ruling would produce “a flood of untraceable ghost guns into our nation’s communities, endangering the public and thwarting law-enforcement efforts to solve violent crimes.”
She asked the justices to consider an analogy.
“If a state placed a tax on the sale of home goods, such as tables, chairs, couches and bookshelves, Ikea surely could not avoid that tax by claiming that it does not sell any of those items and instead sells ‘furniture parts kits’ that must be assembled by the purchaser,” she wrote. “So too with guns: An ordinary speaker of English would recognize that a company in the business of selling kits that can be assembled into firearms in minutes — and that are designed, marketed and used for that express purpose — is in the business of selling firearms.”
A Supreme Court brief from some of the challengers in an earlier phase of the case said the comparison was flawed.
“A better analogy would be to a ‘taco kit’ sold as a bundle by a grocery store that includes taco shells, seasoning packets, salsa and other toppings, along with a slab of raw beef,” the brief said. “No one would call the taco kit a taco. In addition to ‘assembly,’ turning it into one would require cutting or grinding and cooking the meat — and until that was done, it would be nonsensical to treat it as food and the equivalent of a taco.”
In an unusual move, the challengers joined the administration in urging the court to hear the case.
The case had already reached the court once, in an emergency application from the administration in July that asked the justices to temporarily revive the regulations after an the appeals court had blocked them.
The court agreed to do so in August by a 5-to-4, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett joining the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to form a majority.
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