Creators: The US Supreme Court Takes up Ghost Guns

Matthew T. Mangino
Creators Syndicate
October 8, 2024

The U.S. Supreme Court opened its new term this week with a near-record-low approval rating of 43%, according to a recent Gallup poll.

The new term promises to be closely followed with a number of politically charged cases, including another gun rights case. Last term, the Supreme Court struck down the federal ban on bump stocks in a 6-3 decision. Bump stocks are so-called conversion devices for semiautomatic AR-style rifles — allowing a rifle to fire like a machine gun.

This term, the justices will hear arguments on the regulation of ghost guns. The untraceable guns are assembled without serial numbers. Ghost gun kits can be bought online without presenting identification or undergoing the background check required by federally licensed dealers. The gun kits can be purchased anonymously through a variety of methods commonly used online.

Under federal law, gun manufacturers and dealers have to obtain a federal license, keep records of gun sales and transfers, conduct background checks, and in the case of manufacturers, stamp the firearms with serial numbers. Law enforcement officials use those serial numbers to track guns used in crimes.

The problem for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was that these rules don't apply uniformly to homemade guns, which have become increasingly popular.

Between 2016 to 2022, ATF agents saw a tenfold increase in reports of ghost guns. In fact, 14,000 suspected ghost guns were recovered by law enforcement and reported to the ATF in just five months last year, according to the Justice Department.

Not to mention, firearm violence generally is a public health tragedy. According to Johns Hopkins Bloomberg School of Public Health, 48,204 people died by firearms in the United States in 2022 — an average of one death every 11 minutes.

In 2022, in an effort to deal with ghost guns, the ATF implemented a rule amending the definition of a "firearm" to include certain weapon components that "may be readily converted into firearms," as well as certain partially complete, disassembled or nonfunctional frames or receivers.

According to the Constitutional Accountability Center, an organization that filed a "friend of the court" brief in the matter before the Supreme Court, "The ATF's rule is consistent with the plain text of the GCA (Gun Control Act of 1968)."

According to the CAC, the ordinary meaning of the GCA's phrase "may be readily converted" indisputably covers the kits and devices specified in ATF's rule, which "may be readily converted" into fully functional firearms.

The CAC argues that when an "amateur working at home transforms a weapons parts kit into a finished state with fairly quick efficiency, that person 'readily ... convert[s]' the kit into a weapon that 'expel[s] a projectile by the action of an explosive' within the meaning of the GCA."

The rule's challengers have argued that the changes made by ATF are "inconsistent" with the definition of a firearm, according to NBC News. "An incomplete collection of parts isn't a weapon," they argued in their brief to the Supreme Court, and it's up to Congress, not the ATF, to decide whether privately made guns should be regulated.

The question is whether a majority of this Supreme Court — which often, as we saw last year, takes an expansive view of gun rights — will sign onto this attempt to evade background checks and serial numbers for ghost guns.

In 2023, in a surprising alignment of justices, Chief Justice John Roberts and Justice Amy Coney Barrett joined the court's three Democratic appointees in issuing a temporary order to leave the status quo — the background check and serial number requirements — until the high court resolves the ghost gun issue.

The Supreme Court will hear arguments on the ATF rule on Tuesday, Oct. 8, 2024.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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Texas judge strikes down Biden restriction on modified semiautomatic guns

A federal judge recently struck down a Biden administration ban on forced reset triggers, devices that allow semiautomatic guns to fire at faster rates, citing the Supreme Court’s decision to overturn a ban on bump stocks last month, reported the Washington Post.

Judge Reed O’Connor of the Northern District of Texas ruled in favor of guns-rights groups that had sued the U.S. Justice Department and Bureau of Alcohol, Tobacco, Firearms and Explosives in 2023 challenging the ban.

O’Connor’s ruling took the same approach that the Supreme Court’s conservative majority did in overturning the Trump administration’s ban on bump-stock devices in June by focusing on ATF’s interpretation of laws restricting the possession of machine guns. It stated that although forced reset triggers enable a user to fire weapons at a faster rate than normal triggers, they do not meet the statutory definition of a machine gun because they do not enable guns to fire multiple rounds with a “single function of the trigger.”

Dudley Brown, president of the National Association for Gun Rights, one of the groups that challenged the ban, wrote in a statement that Tuesday’s decision — along with the Supreme Court’s ruling on bump stocks — forces ATF “to return to their Constitutional boundaries.”

Attorneys for the Justice Department and ATF did not immediately respond to a request for comment Wednesday evening.

Forced reset triggers are devices that forcibly return the trigger of a firearm to its reset or ready-to-fire position after a bullet is fired, which allows a user to more quickly fire successive shots.

In a 2022 letter to federal firearms licensees, ATF said that certain forced reset triggers, which were being marketed as replacement triggers for AR-style rifles, allowed shooters to “automatically expel more than one shot with a single, continuous pull of the trigger” and were subject to a ban.

The National Association for Gun Rights and Texas Gun Rights, another advocacy group, sued the Justice Department and ATF in August 2023, arguing that the agencies had wrongly characterized forced reset triggers to ban them.

In court filings, ATF said that its testing found that a semiautomatic rifle equipped with a forced reset trigger could fire at an average rate of 840 rounds per minute, and that guns with forced reset triggers can be fired with a “single, constant pull of the trigger.”

In his ruling, O’Connor sided with the National Association for Gun Rights and Texas Gun Rights in arguing that forced reset triggers still only fire a single round with “a single function of the trigger.” He likened the characterization to the Supreme Court’s decision on bump stocks. The Supreme Court in June similarly ruled against banning those devices on the argument that they did not alter the semiautomatic action of firearms despite facilitating a much faster rate of fire.

O’Connor’s ruling referenced the 2017 mass shooting in Las Vegas that spurred the Trump administration’s ban on bump stocks and a polarizing debate on the legality of devices that increase the rate of fire of semiautomatic weapons.

O’Connor acknowledged the “tragic nature” of the shooting but said that “no matter how terrible the circumstances, there is never a situation that justifies a court altering statutory text that was democratically enacted by those who are politically accountable.”

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House Committee subpoenas Smith & Wesson regarding marketing of AR-15

The House Oversight Committee has subpoenaed the firearms manufacturer Smith & Wesson for key documents related to the company’s sale and marketing of AR-15-style firearms after it failed to produce sufficient documents and information requested by the committee and the company’s CEO refused to appear before Congress last month, reported the Washington Post.

The letter transmitting notice of the subpoena to Smith, and reviewed by The Washington Post, highlighted the incomplete figures provided to the Oversight Committee by Smith & Wesson so far — and key gaps in the company’s metrics.

“While your company refused to provide information specific to AR-15-style rifles, the limited information provided shows that your company brought in at least $125 million from AR-15 style rifles in 2021 alone,” the committee’s chairwoman, Rep. Carolyn B. Maloney (D-N.Y.), writes about the need for a subpoena for the company that manufactured the assault rifle used by the gunman who opened fire on a Fourth of July parade in Highland Park, Ill., killing seven and injuring 46 people.

Overall, the committee found that the five leading gun manufacturers under investigation raked in over “$1 billion in revenue over the past decades” through sales of AR-15-style rifles, according to Maloney, and that Smith & Wesson reported a record $1.1 billion in overall sales in the company’s latest annual earnings report — the highest in its 170-year history.

Maloney writes that Smith & Wesson informed the committee that it “makes no effort to track or monitor injury, deaths, or crimes associated with AR-15-style rifles you manufacture, even though this data is included in a tracing process run by the Bureau of Alchohol, Tobacco, Firearms and Explosives.”

President and chief executive Mark P. Smith initially agreed to appear before the committee, according to Maloney, but reversed course over concerns that he would be “the only industry CEO to appear.” Despite assurances from his counsel that Smith would be “willing” to appear in a future hearing featuring representation from the industry, he ultimately declined to appear at the July 27 hearing where executives from Sturm, Ruger & Co. and Daniel Defense appeared.

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73 children under 12 accidentally killed by firearms in 2018

Children were killed more than once a week last year under similarly tragic circumstances – a loaded gun and an adult's attention lapse – presenting prosecutors with a vexing question: Who is to blame, and how should that person be punished?

At least 73 juveniles under age 12 were killed last year, roughly the same pace as the previous five years, reported the USA Today. More than the 55 students of ages killed by a firearm in school.

A 2017 USA TODAY and Associated Press investigation of the 152 deaths from 2014 to 2016 found about half ended in a criminal charge, usually of adults who police said should have watched children more closely or secured their guns more carefully. 

Nearly identical cases then and in 2018 had markedly different outcomes. 

A grandfather was charged in Virginia, a father was charged in Georgia and an uncle was charged in Missouri – all with variations on criminal negligence. But elsewhere in Virginia, prosecutors declined to charge parents after two incidents that left 2-year-olds dead on the same day in May. 

Felons are the only consistent exception. Because it’s illegal for anyone convicted of a felony to possess a gun, almost every felon involved in an accidental gun death faces criminal charges.

David Chipman is a former agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives who advises the gun violence prevention group Giffords, named after former U.S. Rep. Gabby Giffords, who survived a mass shooting in Arizona in 2011. Chipman said there should be more focus on preventing the incidents from happening in the first place.

“The law is meant to punish, deter and hold people accountable, but the real issue should be how to prevent something with a fatal outcome,” he said. “So we have to deter that behavior and educate people."

Some in the gun rights community advocate keeping a loaded firearm in reach for protection from a home invasion. Chipman called that scenario a “fantasy.” He said ATF agents and police with children all consider how to safely store firearms – and said he owns a fingerprint-protected gun safe that he can unlock in seconds. 

But in rural pockets of America, keeping a loaded firearm around is commonplace, said Elbert Koontz, mayor of Republic, Washington, a town near the Canadian border. With a population of about 1,000, Republic has averaged about three burglaries a year over the past decade.

Republic made headlines this year for pledging to become a “Second Amendment Sanctuary City” by refusing to enforce a new state gun law, which includes background checks and penalties for not locking up firearms at home.

Koontz said parents should focus on teaching gun safety instead of surrendering their ready access to guns. 

“Where we live, you’re lucky if you can get a cop in 15 minutes,” Koontz said. “If a criminal comes in and breaks down your door, by the time you open up the gun safe and get the ammunition and load your gun, you’re already dead.” 

At least 13 county sheriffs issued news releases stating they would not enforce the Washington law. In February, Columbia County Sheriff Joe Helm called it “unconstitutionally vague” and “unenforceable.” 

Washington Attorney General Bob Ferguson countered with a sternly worded letter to all police chiefs, sheriffs and towns threatening not to enforce the new gun law. He warned that law enforcement agencies that don’t perform the checks could be held liable if someone gets a gun and uses it to do harm.

“Local law enforcement officials are entitled to their opinions about the constitutionality of any law,” Ferguson wrote. “But those personal views do not absolve us of our duty to enforce Washington laws and protect the public.”

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