Source.

On Oct. 8, the justices will take up a dispute over ghost guns — firearms that can be assembled and lack serial numbers. It will be the second day for the justices after they return from a three-month recess to kick off the 2024-25 term.

The Biden administration asked the justices to review a case in which a federal appeals court struck down a regulation governing the sale of kits to make ghost guns, saying it stretched the definition of “firearm” found in the Gun Control Act of 1968.

Justice Department lawyers say ghost guns have turned into an end-run around federal gun control laws, allowing “anyone with access to the internet to anonymously buy a parts kit or partially complete frame or receiver that can be assembled into a working firearm in as little as 20 minutes.”

Gun rights advocates say if the government wants to regulate the sale of ghost guns, it must pass a new law, arguing the feds can’t stretch the 1968 legislation that far.

TTAG is also covering this.

The case, VanDerStok v. Garland, challenges the Department of Justice’s 2022 Final Rule that redefined important legal terms dealing with guns, including “firearm,” “receiver” and “frame,” making the longstanding American tradition of building personal firearms pretty much a thing of the past. Back in April, the court voted 4-3 to consider the challenge.

At issue is whether the DOJ and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped their bounds in promulgating the Final Rule. Plaintiffs in the case argue that the rule is just another example of the bureaucrat-run agencies ignoring the Administrative Procedures Act (APA) and overstepping their bounds by making laws instead of enforcing them.

That was, in fact, what the Fifth Circuit Court of Appeals unanimously ruled last November, upholding an earlier district court decision on the matter. In the ruling, Judge Kurt Engelhardt, who wrote the majority opinion, agreed in no uncertain terms that ATF overstepped its bounds in making the Final Rule.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” Judge Engelhardt, a Donald Trump nominee, wrote in the opinion. “But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”

The sad thing about all of this is that the judgment was made purely on procedural grounds. The FedGov violated the rules for promulgating new rules.

But the core issue here is the constitutionality of the FedGov regulating the self-manufacture of firearms to begin with. Self-manufacturing of firearms has a very long and respected tradition in America. And so it should remain. The founders wouldn’t have countenanced a law that forbade firearms manufacture and sales without the government knowing and approving.

If the supreme court refuses to tackle the issue of constitutionality, it will leave the door open to future attempt by Congress to pass such a law. This would then need yet another challenge in court, one much less likely to succeed than VanDerStok.