Supreme Court Associate Justices Amy Coney Barrett, left, and Ketanji Brown Jackson visit before President Joe Biden delivers his State of the Union address during a joint meeting of Congress in the House Chamber of the US Capitol on February 7, 2023, in Washington, DC. | Chip Somodevilla/Getty Images
The Court blocked a lower court order that would have made it easy for criminals to obtain so-called ghost guns.
The Supreme Court handed down a brief order on Tuesday that will prevent violent criminals and other individuals who are not allowed to have guns from evading a federal law requiring background checks for gun buyers. The vote was 5-4, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the Court’s three Democratic appointees.
The case, known as Garland v. VanDerStok, concerns so-called “ghost guns,” dismantled firearms that are sold in ready-to-assemble kits.
Federal law typically requires anyone purchasing a gun to submit to a background check. It also requires guns to be marked with a serial number that can be used to track the weapon if it is used in a crime. These laws apply to “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” It also applies to “the frame or receiver of any such weapon,” the skeletal part of a firearm that houses other components, such as the barrel or trigger mechanism.
Thus, if someone purchases a series of firearm parts to assemble a gun at home, they are still supposed to face a background check when they purchase the gun’s frame or receiver.
Ghost guns are often sold as kits, a collection of gun parts that can be assembled into a functional gun. Often, the frame or receiver in this kit is sold in an unfinished state — though, according to the Justice Department, these incomplete frames and receivers are often very easy to finish. In some cases, a ghost gun buyer can build a working gun after drilling a single additional hole in the kit’s frame. In other cases, they merely need to sand off a small plastic rail.
Judge Reed O’Connor, who is known for handing down dubiously reasoned opinions that implement Republican Party policies, ruled that these ghost gun kits are immune from the laws requiring serial numbers and background checks. Recall that these laws apply to “any weapon” that can be “readily converted to expel a projectile.” O’Connor reasoned that “weapon parts … are not ‘weapons,’” only a fully complete firearm is. And thus the kit as a whole does not count as a “weapon.”
Similarly, O’Connor claimed that the almost entirely complete receivers sold with ghost gun kits do not count as “receivers” under federal law because “that which may become or may be converted to a functional receiver is not itself a receiver.” Under O’Connor’s reasoning, it does not matter if a gun buyer would only need to make the most minimal effort to finish the receiver contained in the ghost gun kit.
Although the Supreme Court did not explain its decision temporarily putting O’Connor’s decision on hold, it appears that a bare majority of the Court either disagreed with O’Connor’s attempt to open up a loophole that would allow violent criminals to obtain guns, or believe that he exceeded his authority when he applied this decision on a nationwide basis — unilaterally determining that ghost guns may be sold without background checks in all 50 states.
Three takeaways from the Court’s decision in VanDerStok
The Court’s decision in VanDerStok is temporary. It effectively puts O’Connor’s attempt to set gun policy for the entire nation on hold while this case makes its way through appellate courts. The order is also only a single paragraph long, so it provides little insight into why the five justices in the majority reached this conclusion.
That said, three aspects of this decision are worth noting.
The first is that the fifth vote was provided by Barrett, a conservative Trump appointee, while Barrett’s fellow Trump judge, Justice Brett Kavanaugh, dissented. This vote lineup is somewhat surprising because Kavanaugh has previously indicated that he is more moderate on gun issues (though still extremely conservative) than Barrett.
In New York State Rifle & Pistol Association v. Bruen (2022), both Kavanaugh and Barrett joined a majority opinion by Justice Clarence Thomas, which massively expanded the scope of the Second Amendment. Kavanaugh, however, wrote a concurring opinion that emphasized that the Constitution still permits many forms of gun regulation, including “prohibitions on the possession of firearms by felons and the mentally ill,” which are often implemented through the mandatory background checks that O’Connor tried to sabotage.
Kavanaugh’s opinion in Bruen was joined by Roberts, but not by Barrett. Nevertheless, it was Barrett, and not Kavanaugh, who voted to suspend O’Connor’s decision.
A second noteworthy aspect of the VanDerStok decision is that Justice Neil Gorsuch dissented. Gorsuch has repeatedly complained about lower court judges who make sweeping policy decisions that apply on a nationwide basis. As Gorsuch wrote in a recent concurring opinion, “a district court should ‘think twice—and perhaps twice again—before granting’ such sweeping relief.”
But Gorsuch still votes fairly consistently to uphold such nationwide injunctions when they are handed down by a Republican-appointed judge seeking to block a policy supported by Democrats. His vote in VanDerStok fits that pattern. Gorsuch’s concern about lower court judges setting policy for the whole nation does not appear to be strong enough to overcome partisan politics.
The final thing worth noting about the VanDerStok decision is that it suspends O’Connor’s order until the case is heard by the United States Court of Appeals for the Fifth Circuit, and then reviewed one more time by the justices themselves. This will prevent the far-right Fifth Circuit, which has its own history of handing down dubiously reasoned decisions that benefit Republicans, from reinstating O’Connor’s order until the justices decide if they want to give this case another hearing.
Nevertheless, it is likely that the Fifth Circuit, which is dominated by Trump appointees and other MAGA-aligned judges, will agree with O’Connor. That means the Supreme Court will likely need to hear VanDerStok again if it intends to prevent O’Connor’s ghost gun loophole from swallowing up mandatory background checks and serial number requirements.