How the Supreme Court Went Wrong in the ‘Ghost Gun’ Case

A person holds a 3D-printed ghost gun during a statewide gun buyback event held by the office of the New York State Attorney General in New York City on April 29, 2023. Yuki Iwamura/AFP via Getty Images

Commentary

In its term just ended, the Supreme Court ruled that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) may regulate weapons parts kits as “firearms.” The case was Bondi v. VanDerStok. It also is called the “ghost gun case.”

Under a congressional statute known as the Gun Control Act of 1968, “weapons” are subject to federal regulation as “firearms.” Weapons parts kits typically include most or all of the components necessary to build a gun, although the purchaser generally supplies the tools and, if necessary, a magazine.

The ATF argued that such kits are “weapons” and therefore “firearms.”

Strictly speaking, the only issue before the court was whether these kits fit within the statute’s meaning of the word “weapon.” The Second Amendment right to keep and bear arms was not under consideration—at least not directly.

Here’s what the Gun Control Act says: A “firearm” includes (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.

Thus, the statute authorized the ATF to regulate:

• weapons
• “starter guns”—a particular kind of incomplete weapon
• specifically listed weapon parts: frames, receivers, and mufflers/silencers (more properly called “suppressors”)
• destructive devices

The kits generally do not include completed frames, completed receivers, or completed suppressors. Nor are they, by themselves, “destructive devices.” But the court ruled that they do qualify as “weapons.”

The vote among the justices was seven to two. The court’s opinion was written by Justice Neil Gorsuch. Justices Clarence Thomas and Samuel Alito dissented. This division illustrates once again a point I have made many times before: The current Supreme Court is a very split bench. It is not, as the mass media often claim, one with a “6–3 conservative majority.”

A key part of Gorsuch’s opinion placed the word “weapon” into a technical class of words called “artifact nouns.” Gorsuch pointed out that sometimes people refer to an unfinished artifact as if it were finished. Thus, an author might refer to his unfinished manuscript as “my novel.” In like manner, a “weapon” could include an unfinished kit that is more than merely a random collection of parts.

Problems With the Court’s Conclusion

In my view, the majority opinion was erroneous on several levels.

First: The foremost rule for reading a statute is to seek the intent of the legislature that adopted it. In the case of the Gun Control Act, you try to reconstruct the intent of Congress when it passed the law in 1968. There does not appear to be any history suggesting that Congress intended to include assembly kits in the definition of “weapon.”

Second: Another rule of interpretation is that in seeking the legislature’s intent, you should examine the normal meaning of key words in the statute at the time the statute was adopted. But the normal 1968 dictionary definition of “weapon” was “an instrument of offensive or defensive combat ... [such] as a club, sword, gun, or grenade.” It did not include unfinished products—which is one reason Congress had to list those components (such as frames) that it did wish to include in the meaning of “weapon.”

Third: In construing a word or phrase in a statute, you also look at the context. Part of the context is the other language around the word or phrase.

As you can see from the portion of the statute quoted above, it does include some components (frames, receivers, suppressors). It also includes one category of incomplete weapon (starter guns). But it leaves out all others. A very well-recognized rule of interpretation tells us that when a law lists certain items, the law implicitly excludes others. Consequently, other components and unfinished instruments—including kits—are not covered.

Fourth: Another way of examining a statute’s context is to examine any law or laws the statute superseded or supplemented. The 1968 Gun Control Act replaced an earlier law called the Federal Firearms Act. The Federal Firearms Act did cover component parts: It defined a “firearm” as “any weapon ... designed to expel a projectile or projectiles by the action of an explosive ... or any part or parts of such weapon.”

When passing the 1968 Gun Control Act, Congress could have continued regulation of “parts,” but it specifically chose not to do so. This also tells us that assembly kits are not “weapons” under the Gun Control Act.

Fifth: When construing a statute, you also apply legal rules and definitions that are so common that lawmakers presumably know about them. In VanDerStok, Gorsuch relied on a specific category of words known as “artifact nouns.” But the phrase “artifact noun” was previously unknown to the law—a fact I verified by searching in the best-known legal database. It was not a category of which Congress was necessarily aware.

For all these reasons, the court should have concluded that the Gun Control Act’s definition of “weapon” does not include gun assembly kits. The ATF exceeded its power by trying to regulate something it had no authority to regulate.

What the Court Did

In 1968, only experts with specialized equipment could assemble guns. Weapons parts kits, along with the necessary assembly tools, became widespread only after the Gun Control Act was adopted. It appears that the court was trying to update the 57-year-old statute to meet modern conditions.

But updating federal statutes is not the job of appointed-for-life judges. It is a job for democratically elected members of Congress. Under the Constitution, only Congress—not the judiciary—possesses what the Constitution calls “the legislative Power.”

Interpreting the Constitution

The ruling in VanDerStok shows how a court can amend a statute by changing the normal rules for interpreting it.

Gorsuch is an outstanding jurist and usually does not make this kind of mistake. However, writers on the Constitution frequently do—that is, they invent new rules of interpretation to “prove” the Constitution says what they want it to say.

But the Founders wrote and adopted the Constitution with the understanding that it was to be applied using the rules of interpretation prevailing in their own day and, for the most part, still prevailing now. Moreover, Congress and state legislatures enact laws relying on that same assumption. Only by following normal rules of interpretation can judges be faithful to the law. When a court distorts those rules, it distorts the law.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.