America Needs More Untraceable Guns, Apparently
The Supreme Court takes a case that could cause more "ghost gun" proliferation.
A few years ago, I interviewed Sen. Chris Murphy of Connecticut, who after the Sandy Hook massacre became the most prominent advocate of gun safety in the Senate, about the various legislative measures he was proposing in what often seemed like a quixotic crusade to alleviate the unending horror of gun violence in America. Near the end of the conversation, I asked if he was worried about 3-D printed guns and gun parts, which as the technology developed could mean the proliferation of untraceable guns, making the ocean of guns in which we now drown even deeper. He didn’t see it as a distinct threat; here’s what he said:
“It’s not that there isn’t a public policy response to it. You can construct a set of laws that applies a background check system to 3-D printing, too. People can choose to ignore or violate that law, but you could either ban people from doing it, or you could regulate it once the technology truly exists and say that the only people that can do it are ones that pass a rigorous background check and potentially other regulatory hurdles as well.”
3-D printed gun parts are still something of a novelty in the gun world; you can’t really print an entire gun that’s usable for more than a few shots, since for certain parts, you need metal to withstand the stress of the small explosions. But as the technology improves, sooner or later you will be able to print entire guns. And what happens then? I thought about Murphy’s perspective — that as things change we can pass legislation and promulgate regulations to deal with it — after hearing that the Supreme Court will take up a challenge to the Biden administration’s 2022 regulation of “ghost guns,” which people can assemble at home using parts or kits bought online (sometimes they can involve 3-D-printed parts, but usually they don’t). They’re called ghost guns because they have no serial numbers and can be obtained without any background check.
I’m not criticizing Murphy; there’s almost no one in Congress who has worked harder on the problem of gun violence, always against overwhelming odds. The point is that he was expressing what we would think of as a sane response to a potentially deadly problem created by new technology: We see how it develops, then we craft a policy response that attempts to minimize the harm it does.
That’s no longer how things work. Here’s what happens now:
A problem emerges
The government (whether Congress or regulatory agencies in the executive branch) arrives at a policy to address the problem
Republicans file a lawsuit in one of a couple judicial districts in Texas, where a far-right judge issues a nationwide injunction stopping the policy solution from taking effect
The Supreme Court decides it doesn’t like the policy, so it invalidates it
Which is what is may well happen here.
That outcome is not guaranteed; this case could go either way, depending on how a couple of the conservative justices (in this case, probably John Roberts and Amy Coney Barrett) feel about ghost guns. But that uncertainty doesn’t arise from differences in constitutional or statutory interpretation; it’s about the justices’ policy preferences and nothing more. That’s all that matters on the Court, because the conservative justices have made themselves into a super-legislature that will decide any and all policy issues they choose.
Who you gonna call?
With ghost guns increasingly being used in crimes, in 2022, the Bureau of Alcohol, Tobacco, Firearms, and Explosives established a regulation that subjected them to the same rules as other firearms. That meant the kits have to have serial numbers and licensed gun dealers who sell them have to subject purchasers to background checks. Gun advocates quickly sued to invalidate the regulation, on the grounds that ghost gun kits are not “firearms” and therefore can’t be regulated in the same way other guns are. Naturally, they filed their suit in a Texas district that enabled it to be heard by Judge Reed O’Connor, a far-right judge notorious for invalidating federal laws he doesn’t like. Among other things, he attempted to strike down the entire Affordable Care Act; O’Connor has frequently been overruled even by the Fifth Circuit Court of Appeals, the most right-wing appeals court in the federal system.
O’Connor did indeed strike down the ATF rule, and the Fifth Circuit upheld his ruling. The Supreme Court decided that the regulation could be enforced while the appeals are pending — but only by 5-4, with Roberts and Barrett joining the liberals. Now, the justices have agreed to decide the case.
The ghost gun case isn’t about the 2nd Amendment per se; it’s about whether the ATF exceeded the authority to regulate guns under the Gun Control Act of 1968, which established the parameters of federal gun regulation. It’s possible that at least two of the conservative justices will join with the liberals and decide that the ATF was within its authority and ghost guns should be subject to the same rules as other guns.
If that happens, it will be not because of their firm and principled views on executive branch authority, but because ghost guns make them uncomfortable. But that’s not a sound legal principle, you cry! No kidding.
The madness of Bruen and the future of gun laws
Looming over every legal question about guns is New York State Rifle & Pistol Association v. Bruen, perhaps the most appalling piece of “originalist” insanity the court ever decided. The decision, written by Justice Clarence Thomas, established a new test for gun regulations, one that no other set of laws are subject to: In order for a restriction on guns to be constitutional, it must have a direct analogue to laws in existence either at the country’s founding in the 18th century, or at the time the 14th Amendment was approved in the 1860s.
Under Bruen’s logic, someone could challenge the law that requires serial numbers on guns — after all, there was no such thing as serial numbers in 1789! And if you accept the Bruen test, they should win and that law should be struck down. It’s originalism — which says that what matters in constitutional interpretation is the original intent of those who wrote the document — taken to a farcical extreme.
The most important fact to keep in mind about originalism is that the people who profess to be originalists don’t actually take it seriously. It’s a tool, not a principle, a means by which they can arrive at their preferred policy outcomes. The way you use it is to have a law clerk search through some Revolution-era documents — the Federalist Papers, local colonial statutes, a letter that Madison or Adams wrote — and pull out a few quotes that support whatever position you hope to take. Then you say, “Aha, I have located the one true intent of the Framers, which just so happens to support my position!”
The magic of this methodology is that it can produce any result you like. And while Bruen might seem clear in its requirement that almost every gun regulation we have today must be struck down since so few such regulations have direct founding-era analogues, that’s actually not how it has worked in practice. We saw that in November when the court heard a case called Rahimi, in which a plaintiff with a long and disturbing history of violence challenged a law allowing guns to be temporarily taken away from those under domestic violence restraining orders.
He seemed to have an open-and-shut case under Bruen: There were no domestic violence restraining orders in the 1780s, so he gets to keep his guns. But at oral arguments, most of the justices (excepting Thomas and Samuel Alito) seemed uncomfortable with that result, suggesting that they’ll find a way to decide that guns can still be kept from domestic abusers (they haven’t issued their ruling yet). Even though all the conservatives signed on to the Bruen decision, like all originalists, they only want the principle they supposedly hold to apply when they like the outcome it produces.
To repeat, the ghost gun case isn’t a constitutional one, so the decision need not have anything to do with Bruen. But every gun decision will be guided only by each justice’s preferences about just how saturated in deadly weaponry American society should be. For at least Thomas and Alito, the answer will always be “More!” — more guns, in more people’s hands, in more places. There may be cases here and there, like Rahimi, where a few of the conservatives decide that some amount of free-for-all on guns makes them feel a little icky, and they make an exception. But the overall movement is in only one direction.
There is, therefore, only one solution. If the Democrats have the trifecta in 2025, they need to expand the court and neutralize the radical right wing Christo-fascists.