Supreme Court discusses omelets when debating whether 'ghost guns' can be regulated

WASHINGTON – The Supreme Court on Tuesday sounded likely to uphold the Biden administration’s regulation of untraceable “ghost guns,” in a case that turns on when weapons components must be marked with serial numbers and subjected to other rules.

The Bureau of Alcohol, Tobacco, Firearms and Explosives began regulating easy-to-assemble gun kits in 2022, using a 1968 law that defines a firearm as a weapon that is designed to – or may readily be converted – to expel a projectile.

But the gun owners and manufacturers challenging the rule say that definition doesn’t include gun parts.

In more than an hour of oral arguments, the justices tried to draw comparisons with other, less politically charged, products to test if ATF went too far.

Justice Samuel Alito asked if a collection of eggs, ham, onions and peppers on a kitchen counter can be considered a western omelet.

No, replied Solicitor General Elizabeth Prelogar, because those ingredients have other uses.

What if the ingredients were ordered as an omelet kit from HelloFresh, asked Justice Amy Coney Barrett.

That would be different, Prelogar said, because it wouldn’t stretch "plain English" if you described that purchase as buying an omelet.

Similarly, she said, the ordinary meaning of weapons should include those that are nearly complete.

But Peter Patterson, who represented the gun owners and manufacturers, said ATF can’t redefine the rules unless Congress changes the law, noting that the regulations could drive 42 of 43 kit manufacturers out of business.

“There definitely is a sea change by the agency here,” Patterson said.

Just months ago, the high court ruled that the Trump administration went too far when it banned "bump stocks," which convert a semi-automatic rifle into an automatic weapon.

But in this case, two of the court’s conservatives – Barrett and Chief Justice John Roberts – sided with the administration at an earlier stage of the litigation.

In 2023, they joined the court’s three liberals in allowing the regulation to be enforced while it’s being challenged.

On Tuesday, Roberts sounded skeptical to the argument that the weapons kits are primarily aimed at hobbyists rather than those wanting to avoid purchasing a gun with a serial number from a licensed dealer who runs background checks.

Roberts questioned whether a person who drills one or two holes and takes plastic parts out to build a gun at home would feel a sense of accomplishment.

“He really wouldn't think that he’s built that gun, would he?” Roberts asked.

“I don’t know what that person would think, but I think he would,” Patterson replied. “It’s not a simple proposition.”

Patterson told Justice Neil Gorsuch that interpreting guns as readily converted under the 1968 federal standard would upend gun laws because it only takes drilling a hole to covert an AR-15 from a semi-automatic weapon to a machine gun or to saw off the barrel of a traditional rifle to convert it into a short-barrel rifle.

“It could wreak havoc with the firearm laws,” Patterson said.

Patterson argued that a better standard for gauging whether a gun had been completed would be “critical machining operations” such as drilling holes.

Barrett noted that the phrase “critical machining operations” doesn’t appear in the statute. “It seems a little made up, right, the critical machining test?” she asked.

And Justice Brett Kavanaugh, who had sided with the manufacturers in 2023, sounded like he may have changed his mind.

Kavanaugh told Prelogar her interpretation of the of the law “has force,” though he expressed concern that a kit seller could be prosecuted if he wasn’t aware he was violating the law. Prelogar said the statute requires the seller to willfully break the law, a response Kavanaugh said was “helpful.”

Biden moved to regulate the weapons kits in 2022 in response to what the federal government calls an explosion in the use of ghost guns during crimes.

The number of ghost guns recovered by police and reported to the BATF rose from 1,600 in 2017 to more than 19,000 in 2021.

A coalition of cities and prosecutors supporting the regulations told the court in a filing there’s been a measurable reduction in the use of ghost guns since the rules went into effect.

Prelogar ended her argument by warning the court that if gun makers can circumvent regulation by leaving just one hole undrilled in a weapon, then “all guns could become ghost guns.”

This article originally appeared on USA TODAY: Supreme Court appears likely to uphold Biden's 'ghost gun' regulations