by Abigail Crabtree, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
My childhood obsession with Legos turned me into a woman who can put IKEA furniture together without punching a hole in the wall. I thought my DIY abilities peaked at Swedish furniture, but I recently learned that I am skilled enough to assemble my own AR-15 in the same amount of time it took to build my TV stand.[1] How exhilarating!
“Ghost guns” are unserialized, and therefore untraceable, firearms that come in do-it-yourself kits.[2] This means individuals who would fail a background check can obtain a firearm without going through all of the state and federal gun regulations.[3] The Biden administration has made significant efforts to subject ghost guns to the same regulations as traditional firearms. However, with tens of thousands of unserialized ghost guns in circulation and the legislation meant to combat them under review by the Supreme Court, the Court’s decision could have profound implications for the future of gun reform and the safety of Americans.
This article will discuss ghost guns, the Supreme Court’s upcoming case Garland v. VanDerStok, and the possibility of a future Second Amendment claim concerning the private manufacturing of firearms for personal use. Section II will discuss the effect of ghost guns, legislation combatting ghost guns, Second Amendment jurisprudence, and Garland v. VanDerStok. Section III will discuss the likelihood of a Second Amendment challenge following VanDerStok, how the Supreme Court would likely apply the Bruen framework, and the implications for gun reform.
II. Background
Understanding the issues surrounding the regulation of ghost guns requires an understanding of the guns, the current regulations in place, the Supreme Court’s treatment of Second Amendment issues, and the Court’s discussion of ghost guns in Garland v. VanDerStok. Prior to the 2022 rule, ghost guns were available for purchase on a multitude of websites; two of the most successful sellers were Polymer80 and JSD Supply.[4] Polymer80’s “Buy Build Shoot” kit was particularly popular, as it sold for $590 and was advertised to include all the parts necessary to assemble a firearm, a 10-round magazine, and a pistol case.[5]
A. Effect of Ghost Guns
The issue of ghost guns is not merely an academic debate or fearmongering. Everytown – a non-profit that advocates for gun control – regularly provides updates on ghost gun shooting and recovery statistics.[6] Recent examples detail the following incidents: “16-year-old unintentionally shot by his friend with a Polymer80 ghost pistol,” “20-year-old shot and killed two teenage sisters with ghost gun,” “[h]alfway through 2024, Baltimore police had recovered 169 ghost guns.”[7] These incidents are growing in frequency, with the Department of Justice reporting that crimes involving ghost guns rose more than 1000% between 2017 and 2023.[8]
B. Legislation Combatting Ghost Guns
Congress passed the Gun Control Act of 1968 (GCA) in response to the political violence of the preceding years: the assassinations of President John F. Kennedy, Senator Robert Kennedy, and Dr. Martin Luther King Jr.[9] The GCA established America’s first federal framework for regulating guns and prosecuting gun-related crimes, mandating licensing, background checks, and serialization.[10] Before August 2022, ghost guns were not legally classified as “firearms” under the GCA until the gun was completely assembled.[11] This loophole in firearm regulation allowed individuals to buy these gun kits and bypass the requirements of the GCA and other related legislation.
In August 2022, the Biden Administration passed a rule that brought ghost guns under the legal definition of “firearm.”[12] This rule officially brought ghost guns under the purview of the GCA and other firearm legislation, subjecting ghost guns to the same regulations as traditional firearms.[13] Critically, this rule does not address the “likely hundreds of thousands” of ghost guns already in circulation.[14] Moreover, the rule’s constitutionality is the subject of heated debate and is currently under review by the Supreme Court.
C. Second Amendment Jurisprudence
The Supreme Court has demonstrated a renewed fervor for the Second Amendment since 2008, when it decided in District of Columbia v. Heller that the Second Amendment protects the individual right to bear arms for self-defense.[15] Additionally, in 2010 the Court held in McDonald v. City of Chicago that the Fourteenth Amendment incorporates the Second Amendment, making that right applicable to the states.[16] The constitutionality of gun regulations following Heller and McDonald were subjected to a balancing test meant to discern whether the reason for the regulation outweighed its burden.[17]
In 2022, the Supreme Court blurred the scope of the Second Amendment by replacing the balancing test with the “history and tradition” test in New York Rifle & Pistol Association v. Bruen.[18] Following Bruen, a firearm regulation will only be deemed constitutional if the regulated conduct falls within the scope of the Second Amendment and the regulation is consistent with the nation’s history and tradition of firearm regulation.[19] In an apparent attempt to reassure a nation being ravaged by gun violence, the Court stated that this test was not meant to be a “regulatory straight jacket.”[20] Although its scope is ambiguous, it is clear that the Bruen test is demanding.
D. Garland v. VanDerStok
The Supreme Court heard oral arguments on October 8, 2024 concerning whether a firearm kit that may be readily completed is a “firearm” regulated under the GCA and whether a partially completed frame or receiver that may readily be completed is a “frame or receiver” under the Act.[21] Although this case centers around guns, it is not a Second Amendment issue; the case concerns only the scope of executive agency authority. The challengers argued that the 2022 rule bringing “an incomplete collection of parts” (i.e., ghost guns) under the purview of the GCA is an unconstitutional use of agency authority.[22] If the definition of firearm under the GCA is going to be expanded, they argue, it must be by an act of Congress.[23] The challengers believe that the term “firearm” as used in the GCA, cannot be interpreted to include such a collection of parts, while the petitioners argue that the GCA does not permit “such ready evasion” of its regulation by superfluous distinction.[24]
Perhaps for the first time in Supreme Court history, the oral arguments centered around omelet analogies. Justice Samuel Alito questioned the petitioners if “some eggs, some chopped-up ham, some chopped-up pepper and onions” on the counter constitutes a Western omelet.[25] After the petitioners replied no, Justice Amy Coney Barrett questioned whether their answer would change if it were a HelloFresh kit.[26] The petitioners embraced the distinction and stated that a “Trader Joe’s omelet-making kit that had all of the ingredients to make an omelet” and was being marketed and sold as an omelet-making kit, “would [be] recognize[d]…for what it is.”[27] The petitioners stated that the difference between these two analogies captured the essence of the argument, because it is not a random assortment of parts, but rather a specific set of components being sold and advertised to create a specific item – a firearm.[28]
In a surprise to many, the Court temporarily reinstated the rule while the case is being decided. Chief Justice Roberts and Justice Barrett joined the three liberal justices to temporarily reinstate the rule, creating a 5-4 majority for the Biden administration.[29] Justice Barrett appeared persuaded by the argument that the gun kits are being sold and advertised as a kit that can readily convert the pieces into a firearm.[30] Chief Justice Roberts expressed skepticism regarding the challengers’ argument that the kits primarily appeal to hobbyists rather than criminals.[31] The Chief Justice appeared unconvinced that “drilling a hole or two” would convince a hobbyist that they had built a gun.[32]
III. Discussion
Based on oral arguments, a majority on the Supreme Court appears inclined to uphold the rule as a valid exercise of executive agency authority. However, even if the Court ultimately upholds the rule, it would be foolish to think that the challengers or those whose interests they represent would simply accept this ruling and move on. Indeed, in its amicus brief the challengers state that there are “reasons to question” whether “privately made firearms should be regulated by the federal government…but those claims are not at issue.”[33] A victory for the petitioners in VanDerStok will likely lead to a new challenge on either Second Amendment or Commerce Clause grounds, namely that the regulation of privately manufactured firearms for personal use is unconstitutional. Although a successful Commerce Clause challenge is a possibility, it is beyond the scope of this article. Instead, this discussion will focus solely on the merits of a Second Amendment challenge.
If the rule is challenged under the Second Amendment, the Court would need to apply the Bruen framework and would likely conclude that the 2022 rule is an unconstitutional firearm regulation. The Court would need to analyze the constitutionality of the 2022 rule according to the two-prong test set out in Bruen and determine whether (1) the rule falls within the scope of the Second Amendment and (2) whether the rule is consistent with the nation’s history and tradition of firearm regulation. If the research currently available on the history of private gun manufacturing in the United States is comprehensive, the Court is unlikely to find that sufficiently historic firearm regulations are similar enough to the rule to satisfy the Bruen test.
A. A Bruen Analysis
The private manufacturing of firearms will likely be deemed within the scope of the Second Amendment. In Heller, the Supreme Court emphasized that an understanding of the Amendment must be rooted in its “original understanding.”[34] There is sufficient evidence to indicate that individuals built their own firearms during the founding period.[35] Such evidence includes statements from frontiersmen like John Fraser, Daniel Boone, and Lewis and Clark, who were either themselves private gun manufacturers or encountered individuals who built and repaired firearms both as a profession and a hobby.[36] This evidence should be more than ample to show that the issue falls within the scope of the Second Amendment.
The United States certainly has a history of the private manufacturing of firearms, but it seems there is no tradition of regulating this practice. Conversely, research indicates that privately building weapons for personal use was historically “celebrated.”[37] Indeed, Thomas Jefferson wrote that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”[38] The first regulation on a self-built firearm came from California in 2016.[39] Although there is debate as to what sufficiently constitutes “history and tradition,” it is safe to assume that eight years is insufficient. Absent additional evidence, the regulation of self-made firearms would be deemed unconstitutional.
B. Implications for Gun Reform
The blow that ghost guns present to gun reform seems inevitable. Chief Justice Roberts and Justice Barrett appearing openly sympathetic to a firearm regulation certainly provides some hope for future gun legislation, but only when they are not being challenged on Second Amendment grounds. Following the incorporation of the Second Amendment in McDonald v. City of Chicago and the stringent history and tradition standard set out in Bruen, it is hard to imagine a regulation not already in place that would be upheld in the face of a Second Amendment challenge. The results of the 2024 election could have far-reaching implications for the future of gun reform, but even then, it is hard to imagine that a mere liberal majority in Congress could muster the two-thirds majority necessary to pass a constitutional amendment. Even in the face of this apparent light in Garland v. VanDerStok, the future of gun reform appears bleak.
C. Conclusion
Although the Supreme Court appears ready to uphold the 2022 rule in Garland v. VanDerStok, a Second Amendment challenge is likely to follow. If the Supreme Court sticks to its “history and tradition” test, absent some unpublished research or evidence of a sufficiently historic and similar regulation of self-made firearms, the 2022 rule would be deemed unconstitutional in the face of a Second Amendment challenge. This would make firearms readily available to a population that has otherwise been deemed unfit to possess one. With gun violence on the rise, this ruling could lead to grim results in classrooms, at festivals, in the streets, and within the home. Perhaps Chief Justice Roberts and Justice Barrett’s sympathy for the rule could lead to an opinion showing a sort of leniency available within a Bruen analysis, but the Court’s precedent does not make this seem likely.
[1] Rina Torchinsky, The Biden Administration is Regulating ‘Ghost Guns.’ Here’s What the Rule Does, NPR (Apr. 12, 2022, 5:30 AM), https://www.npr.org/2022/04/12/1092063600/what-are-ghost-guns-explained.
[2] Ghost Guns, Brady United, https://www.bradyunited.org/resources/issues/what-are-ghost-guns (last visited Nov. 8, 2024).
[3] Martin Kaste, ‘Ghost Gun’ Maker Goes Dark, NPR (Sept. 5, 2024, 4:47 AM), https://www.npr.org/2024/09/04/nx-s1-5099467/ghost-gun-maker-goes-dark.
[4] Id.
[5] Scott Glover, Feds Raid ‘Ghost Gun’ Maker Whose Products They Say are Linked to ‘Hundreds of Crimes’, CNN (Dec. 11, 2020), https://www.cnn.com/2020/12/11/us/atf-raid-ghost-gun-manufacturer-invs/index.html.
[6] Ghost Guns Recoveries and Shootings, EveryTown (July 31, 2023), https://everytownresearch.org/report/ghost-guns-recoveries-and-shootings/.
[7] Id.
[8] Cara Tabachnick, Ghost Gun Use in U.S. Crimes Has Risen More Than 1,000% Since 2017, Federal Report Says, CBS (February 2, 2023, 9:01 PM), https://www.cbsnews.com/news/ghost-gun-use-crimes-1000-percent-rise-since-2017-atf-report/.
[9] History of Federal Firearms Laws in the United States, Dep’t of Just., https://www.justice.gov/archive/opd/AppendixC.htm (last visited Nov. 8, 2024).
[10] Id.; Madiba K. Dennie, Ghost Guns are Making the Gun Violence Crisis Worse. Will the Supreme Court Care?, Balls and Strikes (September 25, 2024). https://ballsandstrikes.org/scotus/ghost-guns-supreme-court-case-preview/.; Ghost Guns Recoveries and Shootings, supra note 6.
[11] Ghost Guns Recoveries and Shootings, supra note 6.
[12] ATF’s Final Rule to End the Proliferation of Dangerous, Untraceable Ghost Guns, EveryTown (Apr. 12, 2022), https://everytownresearch.org/report/atf-final-rule-ghost-guns/.
[13] Id.
[14] Ghost Guns Recoveries and Shootings, supra note 6.
[15] District of Columbia v. Heller, 554 U.S. 570 (2008).
[16] McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
[17] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 2 (2022).
[18] Id. at 22.
[19] Bianca Corgan, Conundrums of Constraint: United States v. Rahimi and the Future of the Bruen Test, Harv. L. Rev. (Blog Essay), (July 21, 2024) https://harvardlawreview.org/blog/2024/07/conundrums-of-constraint-united-states-v-rahimi-and-the-future-of-the-bruen-test/.
[20] Bruen, 597 U.S. at 30.
[21] Garland v. VanDerStok, SCOTUSblog, https://www.scotusblog.com/case-files/cases/garland-v-vanderstok-2/ (last visited Nov. 8, 2024).
[22] Brief for Respondents – Appellee at 3, Garland v. VanDerStok, No. 23-852, (Aug. 13, 2024).
[23] Id.
[24] Id.
[25] Abbie VanSickle, Majority of Supreme Court Appears Receptive to Biden Administration Limits on ‘Ghost Guns’, New York Times (Oct. 8, 2024), https://www.nytimes.com/2024/10/08/us/ghost-guns-supreme-court.html?.
[26] Id.
[27] Id.
[28] Id.
[29] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/.
[30] Id.
[31] Id.
[32] Id.
[33] Brief for Respondents – Appellee, supra note 21.
[34] District of Columbia v. Heller, 554 U.S. 570 (2008).
[35] Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 St. Mary’s Law Journal, 35, 66-71 (2023).
[36] Id. at 69.
[37] Id. at 79.
[38] Id. at 80.
[39] Id. at 81.
Cover Photo by FobbyPhoto on Flickr.
