This week, the Supreme Court heard oral arguments in Garland v. VanDerStok, a case challenging the authority of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to regulate “ghost guns” under the Gun Control Act. In this episode, Clark Neily of the Cato Institute and Dru Stevenson of the South Texas College of Law join Jeffrey Rosen to recap the oral arguments and debate whether ghost guns—which are untraceable weapons without serial numbers, assembled from components or kits that can be bought online—may be regulated as firearms.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Gyuha Lee, Matthew Spero, and Yara Daraiseh.
Participants
Clark Neily is senior vice president for legal studies at the Cato Institute. Before joining Cato, Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. He is also an adjunct professor at George Mason’s Antonin Scalia School of Law, where he teaches constitutional litigation and public-interest law. His most recent book is Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.
Dru Stevenson is a law professor at the South Texas College of Law. He previously served as a legal aid lawyer in Connecticut, and became an assistant attorney general for the state of Connecticut. His current research focus is firearm law and policy and he is the author of numerous articles about the Second Amendment and firearm law.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Garland v. VanDerStock (oral argument audio via CSPAN; argument transcript)
- Dru Stevenson, quoted in: “‘Ghost guns’ in the crosshairs”, BusinessDay (March 7, 2024)
- Drury Stevenson, "Shall Not Be Infringed," (July 2024)
- Clark Neily, quoted in: “Will ‘sigh of relief’ after US supreme court gun ruling be short-lived?,” The Guardian (June 22, 2024)
Excerpt from Interview: Clark Neily explains that the case questions whether Congress authorized the ATF’s 2022 rule expanding firearm regulations to include partially finished receivers, which challengers argue goes beyond the 1968 Gun Control Act’s intent.
Clark Neily: Right, so this, as in other cases, this term involves a somewhat esoteric question of not so much whether Congress can do a particular thing, but whether they did a particular thing. A federal agency like ATF only has those powers that are delegated to it by Congress through a statute that Congress passed. So the argument in this case is whether Congress did or did not provide statutory authorization for the ATF to regulate a part of a firearm called the receiver. We won't get very technical about it, but you just think of it as it's the thing in the middle between the barrel and the stock where the action happens. Where the round is set off by the firing pin and you get the explosion that propels the bullet out the end of the firearm.
Up until 2022 the ATF had one definition of what constitutes a firearm, and that would be in effect a gun that can fire or an object that could be readily converted into a gun that could fire or the receiver frame or receiver of that gun. What the ATF did in this rule, and what this case is really about is that it kind of expanded this definition so that now it's not just a gun that could be readily converted an inoperable gun that could be readily converted into an operable one, but a not fully finished receiver, a hunk of metal that's been machined in some way so that it's part of the way towards being a receiver, but it's not quite one yet. And this rule that's at issue in this case, we'll call it the Final rule, went into effect in April of 2022.
It expanded the ATF's understanding of what constitutes a firearm that has to have a serial number on it to include a receiver that isn't quite finished yet, and that requires some further act, some further tooling or machine shopping in order to turn into a receiver that would then actually work in a firearm. And the challengers in this case said, look, that's not the definition that Congress gave, and it's not a permissible definition for the ATF to provide. And so these gun kits that people have been buying that include almost finished but not quite finished receivers should not count as firearms within the definition of that term under the 1968 Gun Control Act. And therefore the ATF has no authority to require people to put a serial number on any gun that includes one of these, you have to finish it at home receivers. I know that's a mouthful, but to sum up what this case is about is whether Congress actually provided the statutory authority for this new rule that the ATF has been enforcing about unfinished receivers for firearms since 2022.
Excerpt from Interview: Dru Stevenson argues that historical interpretations of gun laws are subjective and predicts that current federal gun restrictions will largely remain intact under the Court's current makeup.
Dru Stevenson: I think that the history of, and our legal history and traditions are always interesting and relevant and worth talking about, but the historical record is simply too incomplete and it's too much in the eye of the beholder, how much weight we give to one scrap of historical evidence versus another. If we have a letter from Thomas Jefferson that suggests he thought the Constitution meant one thing, and James Madison says the other, and we know they disagreed. Who do we side with? And the fact is judges, the lower court judges are trained as lawyers, not historians. Most of us like history and have watched the History Channel, but we can't do rigorous history.
We do kind of amateur history. And so I think that the Bruen test as Jake Charles at Pepperdine has called it, is kind of a Rorschach test where people see what they want as they try to apply it. The one thing that Bruen does is because it's so confusing, it guarantees that the cases are gonna keep coming to the Supreme Court, and they're gonna get to decide things on a case by case basis. And I think the contrast between how they ruled in Bruen versus Rahimi, where in Rahimi they upheld a federal statute, suggests that we have some people on the court including conservatives who are going to carve out some of our gun laws as okay. And, I know that there are a lot of people in America who would, what I would call Second Amendment absolutists.
They read the Second Amendment as saying Congress can't make any laws about guns at all, anything that relates to gun sales or use or ownership. But there is no one on the Supreme Court that seems to hold that view right now, a truly absolutist view about the Second Amendment. So it's going to come down to individual votes. What do I predict based on what they've signaled? I think that they will uphold the felon in possession law and some of the other 922 [G] categories, undocumented immigrants and so forth where they have had opportunities to overturn those laws even since Bruen and have passed on it. And so I think that we're gonna end up five years from now where they have basically sort of circled a bunch of our existing laws and they're going to say, "These are here to stay for now." And then others like maybe assault weapon bans. I don't know which way they're gonna go. Or some of the innovative rules that are coming out of California like microstamping. I really don't know how they're gonna go about that. Those are more likely to be challenged. I think the federal laws in 18 USC 922 G that we've had now for a whole generation, most of those are likely to stay with this court, with the current makeup of the court. That's my prediction.
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