ATF's "ghost gun" rule appears to be safe, with Justice Alito as the outlying defender

Solicitor General Prelogar summed it up: "They were sold to be crime guns." Also: Law Dork in the news.

Justice Sam Alito was the only justice who seemed eager on Tuesday to back the lawyer challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives rule to regulate “ghost guns” — specifically, the “dummy-proof” kits that allow guns to be created in a short time with no serial number and no background check.

The challengers argue that such ready-made kits are not firearms, under the Gun Control Act, and that, as such, ATF cannot regulate them under the law.

It was not a compelling argument — although it worked at the U.S. Court of Appeals for the Fifth Circuit, which was what led the Justice Department to have asked the justices to take up Garland v. VanDerStok.

While some justices asked narrow questions on Tuesday probing aspects of the ATF’s arguments, it was Alito who held up a blank legal pad and pen and dismissively asked Solicitor General Elizabeth Prelogar, “Is this a grocery list?”

Alito then followed that up by asking whether eggs, ham, peppers, and onions on a counter are a Western omelette.

Prelogar repeatedly explained that those weren’t proper analogies to the ATF rule because a pen and pad could be used for many purposes, as could an egg. “The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use,” she told him.

Justice Amy Coney Barrett then spoke up to challenge Alito’s analogy, asking if the scenario changes if we were considering a HelloFresh order that provided you the items for a meal — a “kit.”

“Yes,” Prelogar responded, concluding that “we would recognize that for what it is” — and later telling Barrett she was “exactly right” in her continued line of questioning about the history of the Gun Control Act and how it addresses different products.

Throughout the arguments, Prelogar repeatedly argued that it was the challengers who were seeking a “sea change” in the law and that the ATF rule is not a change in interpretation, which she said has always focused on whether “a partially complete frame or receiver can be brought to functional condition quickly, easily, and efficiently.”

Looking at the “ghost gun” kits that were the focus of this rule, Prelogar summed it up simply in her rebuttal: “They were sold to be crime guns.” Noting that hobbyists wouldn’t have the same opposition to following the ATF’s rule, she highlighted that the market for the gun kits “collapsed” after the rule went into effect.

During the arguments, which progressed quickly and lasted just over 75 minutes, the outcome was perhaps most clear when Chief Justice Roberts asked Peter Patterson, representing Jennifer VanDerStok and other challengers, “What is the purpose of selling a receiver without the holes drilled in it?”

When Patterson responded that “just like some individuals enjoy working on their car every weekend, some individuals want to construct their own firearm,” Roberts was incredulous.

“Drilling a hole or two, I would think, doesn't give the same sort of reward that you get from working on your car on the weekends,“ he replied wryly.

When Patterson kept going, Roberts eventually cut him off, “I guess what I'm suggesting is that if someone who goes through the process of drilling the one or two holes and taking the plastic out, he really wouldn't think that he has built that gun, would he?”

It was, in other words, already a firearm.

As Prelogar noted repeatedly, this is a facial challenge — meaning the challengers are seeking to block the rule altogether and must show it is always unlawful — and people wanting to defend any “marginal” products that ATF later might potentially seek to regulate under the rule could bring an as-applied challenge in that instance.

Aside from Alito (who also later trotted out a car analogy), most of the other questions appeared to be more about closing narrow doubts or reinforcing rationales for rule. (Although Justice Clarence Thomas’s initial question to Prelogar was skeptical, he certainly didn’t take the role on Tuesday that Alito did.)

For his part, Justice Neil Gorsuch appeared to be pre-writing an opinion upholding the rule, repeatedly putting the provision at issue about a “frame or receiver” in the context of the elements of the law that precede and follow it in questions to both Prelogar and Patterson.

Justice Brett Kavanaugh, meanwhile, asked about prosecutions that could result from a decision upholding the rule. Prelogar appeared to ease his concerns on this front by noting the “willfulness” requirement that the government would need to prove regarding charges that a weapon lacks a serial number or is being sold without a license. A brief side-discussion ensued about the background check law, but Prelogar essentially said that is not a concern.

It was an argument where Justices Elena Kagan and Sonia Sotomayor jumped in at times, but mainly appeared happy letting the conservatives break down the challengers’ argument.

As she does often, Justice Ketanji Brown Jackson was looking at the case more broadly, saying outright that she was “concerned” about the Justice Department’s framing of the case as being about whether the kits are firearms under the statute.

Instead centering her questions around whether the Supreme Court is “taking over what Congress may have intended for the agency to do in this situation,” Jackson appeared to see that the rule is safe. She was, rather, looking at last term’s decision in Loper Bright Enterprises v. Raimondo ending Chevron agency deference — and looking ahead to the future.

“[A]re we to conclude that an agency exceeds its statutory authority whenever it fails to choose what we think is the best meaning of a statutory term?” she asked.

It was a question posed to Prelogar, but it was just as clearly a question to her colleagues about how law will work in a post-Chevron era.

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Law Dork in the news

I talked with Scripps News on Monday about the new U.S. Supreme Court term, along with court reform and the ethics questions surrounding the court.

Check it out!