On Monday, the U.S. Supreme Court agreed to take up Garland v. VanDerStok, a case challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule to curb the proliferation of unserialized parts and kits that have helped people — including those prohibited from owning firearms — build untraceable “ghost guns” in minutes. The Biden administration asked the Supreme Court to review VanDerStok after the Fifth Circuit Court of Appeals struck down the ATF rule.
To learn more about the danger of ghost guns, click here.
The Supreme Court’s announcement comes weeks after it heard oral arguments in Garland v. Cargill on the ATF rule prohibiting bump stocks, another deadly gun industry innovation. Both cases center on the ATF’s ability to enforce gun laws enacted by Congress.
ghost gun background
Since 1968, the federal Gun Control Act (GCA) has required licensed gun makers to engrave or imprint serial numbers on their firearms’ frames or receivers — the basic building blocks of every firearm. The GCA also requires that gun makers, importers, and dealers — Federal Firearms Licensees (FFLs) — log the serial numbers of firearms that enter and leave their inventories. So if a gun is later recovered from a crime scene, police can contact the ATF, which will trace the gun back to its first point of sale. The ATF does this by contacting the manufacturer, finding out where the gun was sold, and working down the supply chain to the dealer, because no federal authority is allowed to hold onto firearm transaction records. The burden of record-keeping rests on the shoulders of FFLs, and this is why serial numbers are so crucial to law enforcement investigations. Additionally, since 1993, federal law has required that FFLs perform background checks on non-FFL customers.
But in recent years, dozens of retailers sold unserialized gun-building kits online, claiming that because they weren’t completed, they did not need serial numbers or to be sold with background checks. The kits include so-called “80-percent”-finished frames or receivers as well as the jigs, drill bits, and instructions required to complete them. Of course, the “80-percent” nickname is a misnomer, however, as these parts are nearly complete. To complete an “80-percent” frame from Polymer80 — the largest retailer in this space — to create a Glock-style pistol, one simply drills out two holes and removes five plastic tabs. Once that is done, other parts, such as the slide and trigger, can be added to the frame to complete the pistol.
THE ATF’s Lifesaving rule
Because ghost guns lack serial numbers, they are extremely difficult, if not impossible, for law enforcement to trace when they show up at crime scenes. And because they were sold online without background checks, ghost guns became the weapons of choice for criminals, gun traffickers, and others prohibited from purchasing firearms, including teens. The ATF estimates that police have recovered over 71,000 ghost guns between 2016 and 2022.
To respond to this growing problem, the ATF finalized a rule in April 2022 which confirmed that “readily completed” frames and receivers are to be treated as if they are complete, meaning they must be serialized and sold with background checks. According to the rule, the ATF may consider several factors in determining if a frame or receiver can be “readily completed,” including the time it takes to finish the process, the ease of doing so, and the equipment required. The ATF will also look at how gun-building kits are sold and marketed to determine if they need to be serialized and sold with a background check.
The ATF’s rule has been embattled since it went into effect, with gun groups suing the ATF for promulgating the rule. The gun industry’s trade association, the National Shooting Sports Foundation, even asked the ATF to rescind the rule, calling it “vague, ambiguous, confusing, ‘arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law,’” and claiming that the ATF had “exceed[ed] its statutory authority.”
The U.S. Supreme Court — expected to hear the VanDerStok case next term, which begins in October — has allowed the rule to remain in effect while it’s being challenged, and it’s already bolstering public safety. For example, fewer online retailers offer unserialized frames and receivers today, and New Jersey, Philadelphia, and Washington, D.C., have all seen a drop in ghost gun recoveries.