Biden made untraceable ghost guns hard for criminals to get. Supreme Court weighs if he went too far

WASHINGTON − After Bryan Muehlberger’s daughter was killed in 2019 by a high school classmate using a homemade gun from a kit, the grieving father wanted to see for himself how easy it is for a teenager to buy one.

The online purchase in his dead daughter’s name took minutes , because the seller did not have to verify the buyer’s age and identity or run a background check.

Technological advances have made easy-to-assembly gun kits popular not only with hobbyists , but also with minors and criminals unable to buy a regulated firearm.

These do-it-yourself weapons are called “ ghost guns” because they lack the serial numbers and transfer records that make them traceable. Muehlberger joined a suit in 2020 to force the federal government to change that.

While the litigation was still working its way through the courts, President Joe Biden stepped in.

Muehlberger was Biden’s guest at the 2022 Rose Garden ceremony when the president announced a new rule to “rein in the proliferation of ghost guns” by requiring that manufacturers conduct background checks and mark the weapons with serial numbers.

Unable to get Congress to act, Biden said , “I used what we call `regulatory authority.’”

Now the Supreme Court will decide if Biden had that authority. The court will hear arguments in this case on Tuesday.

Does Congress have to act first?

Just months ago, the high court ruled that the Trump administration went too far when it said a bump stock converts a semi-automatic rifle into a machinegun so can be banned.

Like that case, the one the court will take up Wednesday is not directly about the 2nd Amendment right to bear arms.

Instead, the justices will be debating whether the Bureau of Alcohol Tobacco and Firearms is creatively interpreting the Gun Control Act of 1968 , as opponents charge.

“To the extent changed circumstances call for a changed regulatory approach, that change must be made by Congress, not ATF,” lawyers for gun owners, advocacy groups and companies that make or distribute the weapons kits told the Supreme Court.

Supreme Court analysts say, however, it’s not a given that the justices will strike down the regulation as it did with bump stocks.

That’s in part because two of the court’s conservatives – Chief Justice John Roberts and Justice Amy Coney Barrett – sided with the administration at an earlier stage of the litigation.

In 2023, they joined the court’s three liberals in allowing the regulation to be enforced while it’s being challenged.

Although the justices gave no reason for their decision, the government had to show a reasonable probability that the regulation will ultimately be upheld.

“So there’s at least a real chance here that this is going to come out differently than the bump stocks case last term,” said Deepak Gupta, an appellate lawyer who tracks the court’s work.

Is a gun kit like an Ikea bookshelf?

Like that case, the justices will be looking closely at what Congress wrote.

The Gun Control Act’s definition of “firearm” includes “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,” as well as “the frame or receiver of any such weapon.”

In ruling against the government, the New Orleans-based 5th U.S. Circuit Court of Appeals said ATF improperly expanded the scope of “firearm” to include “aggregations of weapons parts” that can be “readily” assembled into a functional weapon and changed the meaning of “frame” and “receiver.”

In response, the Justice Department compared the gun kits to an IKEA bookshelf that must be assembled by the customer. Ikea, the government said in a filing, could not avoid paying a tax on bookshelves by arguing it’s selling furniture parts kits.

“So too with guns:  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,” Solicitor General Elizabeth Prelogar told the court.

Interpreting the law otherwise, Prelogar wrote, would defeat its purpose of stopping minors and criminals from easily getting guns.

But a similar argument was rejected by a majority of the court when it struck down the ATF’s ban on bump stocks as inconsistent with the law.

“A law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest,” the 6-3 majority said .

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`Most criminals do not machine their own firearms'

Opponents of the ghost gun rule say it’s primarily harming hobbyists ; the weapons are too unreliable for criminals, who prefer fully manufactured guns.

“Most criminals do not machine their own firearms,” David Thompson, one of the attorneys representing the challengers, said at a recent event at the Heritage Foundation, a conservative think tank. “They steal them. They buy them in straw purchases. They get them from their buddies. They go to the black market.”

But the government says police departments have been dealing with “an explosion of crimes involving ghost guns.” Tens of thousands are being recovered by law enforcement, a number the government said was rapidly increasing before they were regulated.

The gun that killed Muehlberger’s 15-year-old daughter Gracie and 14-year-old Dominic Blackwell was either built by the teenage shooter or taken from his father, who was legally barred from owning a firearm, according to a brief Muehlberger and Dominic Blackwell’s father filed to urge the Supreme Court to uphold the regulation.

“No other parent, sibling, classmate, or friend,” they said, “should have to suffer due to ghost gun violence.”

This article originally appeared on USA TODAY: Biden made untraceable ghost guns hard for criminals to get. Supreme Court weighs if he went too far