The Supreme Court ghost gun arguments were cringeworthy

Should so-called ghost guns — assembled at home from kits in as little as 20 minutes — be counted as guns for purposes of federal law?

If you have an ounce of common sense, the answer is obviously yes. The relevant law defines a firearm as “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” The definition specifically includes “the frame … of any such weapon.” And the undoubted purpose of the law is to protect Americans from untraceable guns being used in crimes — a purpose that clearly applies to any functional firearm, which ghost guns are.

Yet the Supreme Court heard oral argument last week about whether ghost guns count as firearms. A federal district court judge as well as the ultraconservative U.S. Court of Appeals for the Fifth Circuit both held the Bureau of Alcohol, Tobacco and Firearms had exceeded its authority under the federal law when it adopted a rule in 2022 making it clear that ghost guns must follow the same rules as other guns: that they be stamped with a serial number and that sellers conduct background checks.

After oral argument, it seems possible that the justices will reach a commonsense result. But that’s not at all certain.

The bump stocks ruling

The reason is that, on that day, the justices sidestepped discussion of the law’s purpose. Instead, they spent the argument deep in the linguistic weeds, arguing about whether the ATF was right to say that a partially disassembled gun frame is still, you guessed it, a gun frame. This is textualism — the idea that statutes should be interpreted according to their words but not according to their purpose.

If this gives you a sense of horrified déjà vu, that’s because it echoes a case the court heard last term. In that case, the court had to decide whether the ATF was right to define bump stocks as machine guns. During oral arguments in Garland v. Cargill, the justices were similarly unwilling to ask the basic question of whether the purpose of the machine gun law was served by including bump stocks, which enable semiautomatic assault rifles to fire up to 800 rounds a minute. Then, in June, the justices ruled, 6-3, that bump stocks can’t be regulated as machine guns.

The absurdity of the bump stock decision is why I am not confident that the court will get the ghost guns issue right. There’s no doubt that ghost guns pose a public safety hazard. The government introduced evidence showing a 1,000% rise in the use of such guns for criminal purposes in the years before the ATF issued its clarifying rule. But the court cannot base its ruling on those real-world consequences as long as it is determined to focus only on a law’s text.

An awkward setup