In November 2023 we discussed the Fifth Circuit Court of Appeals’ decision to strike down a Biden-era firearm regulation concerning “ghost guns,” concluding that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) stepped into the shoes of Congress and essentially rewrote the law in violation of the separation of powers.
On Wednesday, the United States Supreme Court upheld the ATF’s 2022 regulation. Also known as privately made firearms (PMFs), ghost guns refer to an assemblage of firearm parts purchased to be constructed or completed by consumers themselves. The parts can come in kits or they can be purchased separately. Some kits do not contain all the needed parts. The amount of work and level of skill required for assembly varies greatly.
ATF finalized a rule in 2022 expanding the term “firearm” to include “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 CFR §478.11. By deeming kits “firearms,” ATF subjected kit consumers to background checks, mandated serial numbers on PMFs, and required sellers to retain records until they cease to operate as a seller. Further, frames and receivers are deemed “firearms” by the Gun Control Act of 1968 (GCA), and ATF’s rule expands the definitions of “frame” and “receiver” to encompass those that are “partially complete, disassembled, or non-functional.” 27 CFR §478.12(c).
Before the rule took effect, a group of PMF advocates challenged the rule in the Northern District of Texas. They argued that the rule constituted an overstep of administrative authority, as the GCA does not reach weapon parts. The District Court agreed, granting summary judgment to the plaintiffs and vacating the rule. ATF was enjoined from enforcing the rule nationwide. The Fifth Circuit Court of Appeals affirmed the District Court decision, agreeing that ATF’s authority does not extend to weapon parts kits, regardless of the level of effort required for assembly.
The Supreme Court agreed to hear the case, but allowed the rule to remain in effect until a decision was rendered. On Wednesday, the Supreme Court upheld the rule.
The Supreme Court’s decision is a win for gun control advocates. They pushed for regulation of PMFs, arguing that background checks should not be circumventable. Further, they offer that weapons without serial numbers are nearly impossible to trace to the original purchaser, presenting challenges for law enforcement officers when weapons are used in a crime.
The decision creates confusion, however, as it does not address where the line is drawn in terms of what constitutes a “kit” and what are merely raw parts. For the hobbyist, this can be frustrating. For example, the industry rule for years has been that 80% complete kits were safe to sell; the Court left unanswered what level of work necessary to complete a firearm distinguishes raw parts from a PMF, indicating instead that a kit must be sufficiently “incomplete or cumbersome” to fall outside ATF regulation. To make matters more confusing, it is unclear what this means for PMFs in circulation. House Bill 545, if passed, would ban the possession and use of PMFs in North Carolina.
Ironically, Attorney General Bondi issued a news release concerning Second Amendment priorities the day after this Supreme Court decision, claiming the Trump administration is pro-Second Amendment and noting that the Supreme Court “has recognized that the Second Amendment is a fundamental, individual constitutional right and has taken multiple opportunities to strengthen Second Amendment protections for ordinary, law-abiding citizens.” Bondi went on to state that “[t]he Second Amendment is not a second-class right, and under my watch, the Department will actively enforce the Second Amendment just like it actively enforces other fundamental constitutional rights.” The gun industry was skeptical of Bondi’s confirmation given her prior comments and actions on firearm regulation, and it remains to be seen how DOJ will prioritize firearms issues in the coming years.
The ever-changing regulatory landscape can make compliance challenging, and we encourage anyone with questions about ATF regulations or gun laws to seek the advice of experienced and competent counsel, as the consequences of noncompliance can be costly.
