The US Supreme Court opens its 2024-2025 term on Monday, October 7. While cases will continue to be added to the docket, the justices are already set to consider hot-button issues including the regulation of so-called ghost guns and LGBTQ+ rights. Photo by Valerie Plesch/picture-alliance/dpa/AP Images

Supreme Court

New Supreme Court Term Kicks Off with “Ghost Guns” Case

Garland v. VanDerStok could open a massive loophole in the country’s gun laws: BU LAW’s Michael Ulrich explains the stakes

The US Supreme Court opens its 2024-2025 term on Monday, one that promises to include a number of consequential and politically charged cases, including questions about LGBTQ+ rights, gun rights, and the authority of public agencies.

On Tuesday, just one day later, the justices will hear a case that could open a massive loophole in the country’s gun laws. Garland v. VanDerStok hinges on the regulation of so-called “ghost guns,” firearms without serial numbers, that almost anyone can assemble quickly and easily from prefabricated kits sold online.

Under federal law, gun manufacturers and dealers have to obtain a federal license, keep records of gun sales and transfers, conduct background checks, and in the case of manufacturers, stamp the firearms with serial numbers. Law enforcement officials use those serial numbers to track guns used in crimes.

The problem, for federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents, is that these rules don’t apply uniformly to homemade guns, which have become increasingly popular. From 2016 to 2022, ATF agents saw a tenfold increase in reports of ghost guns, according to data from the Biden administration.

So, in 2022, ATF officials issued a rule to make it clear that the requirements imposed by federal law on gun dealers and manufacturers also apply to the sale and manufacture of ghost guns. It’s this rule—and specifically, whether the agency has the legal authority to enforce it—that’s at the heart of the case before the Supreme Court.

On the other side in VanDerStok are gun owners and gun manufacturers, who argue that the federal government has not previously required a license to build a gun for private use.

To be clear, says Michael Ulrich, an assistant professor of health law, ethics, and human rights at Boston University’s School of Law, with a joint appointment at the BU School of Public Health, the case before the Supreme Court doesn’t constitute “a ban on ghost guns. It’s just saying that they are regulated the same way that other guns are.”

More broadly, Ulrich says, there are a number of cultural and political forces at play in this case.

The first is a growing gun-rights movement, whose leaders see any attempt at gun regulation as an affront to American values. “It’s this idea of just opposing any firearm regulation in any way,” Ulrich says. Specifically in this case, there is also a pervasive attitude by gun owners that if they’re building guns at home purely for self-protection, why should they have to register them with the federal government?

A major decision by the Supreme Court last term indicates that its more conservative justices, at least, are concerned with curtailing the power of federal agencies to interpret the laws they administer. This, too, casts a shadow over VanDerStok, Ulrich says.

During oral argument on Tuesday, he says, he’ll be listening for any indication that the justices are considering this case through the same lens as when they considered a different gun-regulation case last term. In June, they ruled 6-3 to strike down a rule that banned bump stocks, based largely on the majority’s interpretation of a few key words and definitions in the statute.

“So, if some of the conservative justices start to really focus on these technical aspects and meanings of ‘firearms,’ [as they relate to] the original meaning when this was passed,” it could be a sign that the court is leaning toward a similar decision in VanDerStok, Ulrich says.

And given the conservative supermajority on the Supreme Court, he says, he expects the justices to strike down the ATF rule about regulations for ghost guns.

“In general, they’ve been very supportive of gun rights broadly,” he says. “It would be surprising if the court, which has consistently ruled against agencies and agency regulations, decided that a gun-related case was the one in which they said, ‘OK, we’re willing to accept this.’”

The rest of the Supreme Court docket for 2024-2025 so far includes mostly lower-profile issues, though that is certain to change as new cases are added for consideration. And already there is at least one exception: in taking up United States v. Skrmetti (whose oral argument had not yet been scheduled at the time of this article’s publication), the justices agreed to hear a case challenging a Tennessee law that bans gender-affirming care for transgender youths.