An exceedingly rare event occurred on Wednesday — the Supreme Court upheld a federal gun regulation, with four of the Court’s Republicans in the majority.
The Supreme Court hands a rare loss to gun companies
Justice Neil Gorsuch’s “ghost guns” opinion is extremely narrow, but it is correct.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Justice Neil Gorsuch’s opinion in Bondi v. VanDerStok is narrow, but it turns aside a challenge to a federal regulation targeting “ghost guns,” disassembled firearm kits that can easily be assembled into a fully functional gun. Under federal law, guns sold in the United States must have a serial number that law enforcement can use to identify the weapon. And someone purchasing such a gun ordinarily must submit to a background check before they can complete the sale.
The plaintiffs in this case essentially argued that ghost guns are exempt from these requirements because they are not in working order when they are purchased and thus don’t count as guns.
Though this Court normally takes an expansive view of gun rights, it disagreed with the VanDerStok plaintiffs, meaning ghost guns are still subject to the same laws they were subject to yesterday.
As Gorsuch explains, the plaintiffs’ argument makes a hash of the relevant statute. That law provides that the background check and serial number requirements apply 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.”
The plaintiffs primarily argued that a ghost gun does not count as a “weapon” until it is assembled. But, as Gorsuch notes, people often use a noun like “weapon” to refer to an item that is not fully constructed. His opinion analogizes ghost guns to a writer who describes their unfinished manuscript as their “novel,” or to a consumer who refers to the box of disassembled parts they just purchased at IKEA as a “table.”
That said, VanDerStok does not hold that any partially assembled gun is subject to the background check and serial number laws. As Gorsuch explains, the plaintiffs in this case brought a “facial” challenge to the ghost gun regulation, meaning that they claimed that it must be stuck down in its entirety because there is no set of circumstances where it is valid.
While it’s possible to imagine a set of unfinished gun parts that are so far from completion that they should not be subject to federal regulation, many of the gun kits targeted by the ghost guns regulation are nearly fully complete. As Gorsuch writes, one such kit was so easy to assemble that “an individual who had never before encountered the kit was able to produce a gun from it in 21 minutes using only ‘common’ tools and instructions found in publicly available YouTube videos.”
So, the fact that at least some ghost gun kits exist that can fairly be described as “weapons” is enough to defeat a facial challenge.
Gorsuch’s opinion does, however, leave open the possibility that someone could later bring an “as-applied” challenge claiming that a particular kit is too far from completion to be subject to the background check and serial number law. (As-applied challenges permit someone to argue that a law or regulation should not apply to them, even if it validly might be applied to others.)
VanDerStok, in other words, is a very small victory for the cause of gun control. But it is a victory. And it shows that, at least in a case where the statute is very clear and the pro-gun side’s arguments are very weak, this Supreme Court is capable of upholding a gun regulation.
