Supreme Court justices will consider on Tuesday whether the government can regulate so-called ghost gun kits for making untraceable weapons at home. Perhaps surprisingly, the dispute could be understood through an analogy to Ikea furniture.
That might sound strange if you aren’t familiar with the case, called Garland v. VanDerStok. But here’s how it arises in the dispute being argued during the first week of the court’s new term.
The appeal stems from a challenge to a 2022 rule from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Through that rule, the government defends regulating the kits and parts as “firearms” by telling the justices in a brief: “If a State placed a tax on the sale of tables, chairs, couches, and bookshelves, IKEA could not avoid paying by insisting that it does not sell any of those items and instead sells ‘furniture parts kits’ that must be assembled by the purchaser.”
The same goes for guns, the government filing went on: “A company in the business of selling kits that can be assembled into working firearms in minutes — and that are designed, marketed, and used for that express purpose — is in the business of selling firearms.” The brief noted that federal law’s firearm definition includes not only an already functioning weapon but also one that “may readily be converted” to function.
Taking issue with the furniture analogy, the challengers argued in their brief that a better comparison would be to “a box containing shelves and, instead of a frame to hold them, planks of wood that had to be cut to length and drilled to do so.”
To be clear, the ATF rule doesn’t ban ghost guns. It requires traceable serial numbers, licensed dealers and background checks — just as the law does for regular guns. Among the parties backing the government’s regulation are cities, states, prosecutors, gun safety groups and the American Medical Association. On the other side are the National Rifle Association and other pro-gun groups and companies.
To be clear, the ATF rule doesn’t ban ghost guns. It requires traceable serial numbers, licensed dealers and background checks — just as the law does for regular guns.
And though it’s gun-related, this isn’t a Second Amendment case. It’s more like last term’s appeal in Garland v. Cargill, in which the court struck down the bump stock ban. The 6-3 majority said there that the ATF went too far in trying to regulate the deadly devices — which allow semi-automatic weapons to fire at almost the same frequency as automatic ones — under federal law. The same dynamic is at play here, with gun proponents arguing that the agency sought to wield power that Congress never gave it.
But despite the seeming similarity between the two disputes, the ghost gun appeal won’t necessarily end the same way.
In addition to the ghost gun regulation’s not being a ban, the high court has already split 5-4 during earlier litigation in favor of the government. Last year, the justices temporarily reinstated the rule, which had been blocked in the lower court. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented, leaving Chief Justice John Roberts and Justice Amy Coney Barrett in the majority alongside the court’s three Democratic appointees.
To be sure, the justices’ temporary votes don’t bind their final ruling. The court could still ultimately decide against the government. To get a sense of whether that will happen, Roberts and Barrett could be two key justices worth listening to at Tuesday’s hearing. Of course, that’s true in many cases these days, given that they (along with Kavanaugh) can sit in the relative middle of the court, holding deciding votes, depending on the case.
The court livestreams audio (not video) of its hearings, with this one set to start at 10 a.m. ET. In a sign of the case’s importance to the government, it will be argued by its top Supreme Court lawyer, Solicitor General Elizabeth Prelogar.
The justices usually issue the term’s decisions by late June. If the court is still as divided as it was during the earlier litigation — and Tuesday’s hearing may provide some insight into whether it is — then we might not learn the result until closer to then.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
