A day after the U.S. Supreme Court convened for its 2024-25 term, I attended oral argument in the ghost gun case. It was the second year in a row for me to take a seat in the section reserved for members of the Supreme Court bar that provides an up-close view of the justices at work.
I realized last year that in my career, which includes arguing nearly a dozen cases in the Texas Supreme Court and the Fifth Circuit, I was going to have to pay my own way to Washington to observe the Court in session any time soon.
The ghost gun case came to the Supremes from the Fifth Circuit Court of Appeals, which affirmed a decision by Judge Reed O’Connor of the Northern District of Texas. His opinion vacated a rule adopted by the Bureau of Alcohol, Tobacco and Firearms treating gun kits as weapons subject to the federal Gun Control Act. The invalidated rule required sales of the kits only through licensed firearms dealers, background checks of purchasers and serial numbers permanently affixed on the weapons.
Rather than a Second Amendment case, the controlling issue is the authority granted by Congress to the executive branch to adopt regulations to enforce federal legislation. Looming over the gun case was the shadow of the Court’s decision last term in Loper Bright. There, a conservative majority discarded 40 years of adherence to the Chevron doctrine requiring courts to defer to administrative expertise in matters of statutory interpretation.
However, little of the gun case discussion concerned the boundaries of Loper Bright. The justices appeared more fixated with what happens in ordinary American kitchens. Testing an analogy of gun kits to easily prepared meals, Justice Samuel Alito questioned U.S. Solicitor General Elizabeth Prelogar whether eggs, ham, peppers and onions may be considered a Western omelet. Prelogar distinguished the comparison by noting that the food ingredients have well-known other uses unlike the kits at issue solely used to assemble a weapon.
Justice Amy Barrett asked whether gun kits were more like ready-to-eat packages. Prelogar found that a more apt comparison. Like prepackaged food items easily assembled into a meal, the weapon kits may readily be converted into firearms, which comports with the language used by Congress in enacting the Gun Control Act in 1968.
Chief Justice John Roberts noted the ease with which the gun kits could be converted into firearms. He noted that “it’s not terribly difficult for someone to do this,” while Prelogar’s opening remarks to the Court asserted that some manufacturers market the kits as capable of assembly into an operative firearm in 15 minutes. Such guns are “untraceable,” which makes them especially attractive to those “who plan to use them in crimes,” the solicitor general argued. The result, she said, is that the nation “has seen an explosion in crimes committed with ghost guns.”
The challenge to the ATF’s 2022 adoption of the ghost gun regulation was brought in federal court in Fort Worth by Texas resident Jennifer VanDerStok, kit manufacturers and a Second Amendment policy group. Their counsel, Peter Patterson of Cincinnati, contended that the ATF regulation constituted a “sea change” in the enforcement of the decades-old Gun Control Act with the agency exceeding the authority granted it by Congress.
Patterson stressed that the agency rule might easily criminalize the pastime of gun hobbyists. Some law-abiding citizens “want to construct their own firearms” much like those who tinker on their cars in their own garage, Patterson said. Roberts challenged that suggestion, observing that the ease with which the kits can be made into a gun doesn’t yield the same reward of “working on your car on the weekends.”
After leaving the Court and strolling through the residential area of Capitol Hill, I saw many yards decorated with ghostly creatures and Halloween bric-a-brac. It made me think that October was a fitting month for the Court to take up the ghost gun case. After all, the discretion left to an administrative agency after Loper Bright might be as elusive as a spirit in the night.
Members of the press who regularly cover the Court from news outlets such as the New York Times, the Wall Street Journal and Bloomberg News handicapped that the government’s argument would carry the day for a majority of the Court when it announces its decision later in the term.
Paul C. Watler, a partner in Jackson Walker LLP, is recognized for First Amendment litigation in Chambers and Best Lawyers in America and represents plaintiffs and defendants in major securities and business litigation cases.