The Supreme Court will decide if criminals can get guns without background checks

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The fight over “ghost guns” arrives on the Court’s shadow docket.

Last month, a federal judge known for creatively reading the law to achieve conservative policy outcomes handed down a decision that would open a significant loophole in US gun laws. Now it’s up to the Supreme Court to decide whether to let this decision, which would make it quite easy for violent criminals to obtain firearms, go into effect.

The case involves so-called “ghost guns,” weapons that are sold dismantled in ready-to-assemble kits. Judge Reed O’Connor’s opinion in VanDerStok v. Garland would effectively immunize these weapons from federal laws requiring gun buyers to submit to a background check, as well as laws requiring all guns to have a serial number, which can be used to track them.

The laws requiring background checks and serial numbers apply to “any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” It also applies to “the frame or receiver of any such weapon,” the skeletal part of a firearm that houses other components, such as the barrel or trigger mechanism. Thus, even if someone purchases a series of firearm parts to assemble a gun at home, they will still face a background check when they purchase the gun’s frame or receiver.

Ghost guns are often sold as kits, a collection of gun parts that can be assembled into a functional gun. Often, the frame or receiver in this kit is sold in a condition that isn’t entirely ready for use — though, according to the Justice Department, these incomplete frames and receivers are often very easy to finish. In some cases, a ghost gun buyer can build a working gun after drilling a single additional hole in the kit’s frame. In other cases, they merely need to sand off a small plastic rail.

Nevertheless, O’Connor ruled in his VanDerStok decision that these kits are exempt from the background check and serial number laws. Recall that these laws apply to “any weapon” that can be “readily converted to expel a projectile.” O’Connor reasoned that “weapon parts ... are not ‘weapons,’” only a fully complete firearm is. And thus the kit as a whole does not count as a “weapon.”

Similarly, O’Connor also claimed that the almost entirely complete receivers sold with ghost gun kits do not count as “receivers” under federal law because “that which may become or may be converted to a functional receiver is not itself a receiver.” Under O’Connor’s reasoning, it does not matter if a gun buyer would only need to make the most minimal effort to finish the receiver contained in the ghost gun kit.

The stakes in the VanDerStok case are enormous. Most importantly, O’Connor’s decision would allow these untraceable firearms to proliferate — a growing problem because 3D printers and other new technology make it fairly simple to produce these guns. As the Justice Department warns the justices, “tens of thousands of ghost guns are recovered by law enforcement each year — more than 19,000 in 2021, a 1000% increase from 2017.”

VanDerStok also tees up two important procedural issues that could determine whether this Supreme Court will police judges like O’Connor, who have a history of handing down legally dubious attacks on federal policies supported by Democrats.

The case arises on the Court’s “shadow docket,” a mixture of emergency motions and other matters that the justices typically decide on an expedited basis, without full briefing or oral argument. The Court’s Republican-appointed majority used the shadow docket aggressively to benefit the Trump administration, then backed away from it after Democrat Joe Biden came into office — though the Court has granted shadow docket relief to the Biden administration in some cases involving truly egregious overreach by lower court judges.

VanDerStok also asks whether a single federal trial judge should be allowed to set policy for the entire nation. O’Connor is best known for his failed attempt to invalidate Obamacare in its entirety, and for another failed attempt to override the US Navy’s decision that personnel who refuse a Covid-19 vaccine are unfit for deployment. In this latter case, Justice Brett Kavanaugh chastised O’Connor for effectively inserting himself “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

In a recent concurring opinion, Justice Neil Gorsuch suggested that “a district court should ‘think twice—and perhaps twice again—before granting’ such sweeping relief,” so it is possible that the Court’s liberal minority can form a bipartisan coalition with Gorsuch to, at the very least, temporarily limit the scope of O’Connor’s decision.

O’Connor’s decision suggests that a firearm in any state of incompleteness is actually not a firearm at all. He argues that a collection of parts that can be assembled into a firearm does not count as a “weapon” because none of the individual parts are themselves weapons. And he claims that a frame or receiver that is just one easy step away from being ready to use — and that most likely was sold in this slightly incomplete state for the very purpose of evading federal law — is also immune from the background check and serial number requirements.

Philosophers can certainly debate at what point in the assembly process a collection of metal and plastic parts becomes a “firearm.” A company that sells unworked blocks of pure stainless steel, for example, shouldn’t be subject to federal gun regulations simply because a skilled gunsmith could, with specialized tools and enough time, make a firearm using this metal.

At the same time, it makes no sense to say that a gun ceases to be a gun simply because it is not fully assembled. If that were the case, gun sellers could evade federal law simply by selling handguns with the clip removed from the remainder of the gun — or with some other detached piece that can be readily reattached.

The ATF, which finalized regulations in 2022 governing how complete a gun must be before it is subject to federal law, drew a line that excludes most partially complete gun frames or receivers. Under that regulation, the law extends to “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” ATF, in other words, specifically wanted the law to reach ghost gun kits that are made to allow ordinary gun buyers to assemble their own gun.

The Justice Department, meanwhile, argues that ghost gun kits should count as firearms subject to federal law — either because a disassembled gun is still a gun or because a frame or receiver that is missing a single hole or that has a single superfluous plastic tab still counts as a frame or receiver.

In its brief to the Supreme Court, the DOJ analogizes ghost gun kits to the sort of ready-to-assemble furniture that will be familiar to anyone who has furnished their home on a tight budget. “Every speaker of English would recognize that a tax on sales of ‘bookshelves’ applies to IKEA when it sells boxes of parts and the tools and instructions for assembling them into bookshelves,” the DOJ argues. O’Connor’s “insistence on treating guns differently contradicts ordinary usage and makes a mockery of Congress’s careful regulatory scheme.”

Similarly, the DOJ compares a receiver with a missing hole to a bicycle that is missing a few small parts. “Just as a bicycle is still a bicycle even if it is sold without pedals,” the government argues, “a frame or receiver is still a frame or receiver even if the buyer must drill a few holes or remove some plastic tabs before attaching other parts of the firearm.”

More broadly, the DOJ also argues that federal law should not be read in a “self-defeating” way. If gun sellers can evade federal law by selling guns in the same way that IKEA sells furniture, then the law could easily cease to function.

Historically, the Supreme Court was very cautious about deciding cases prematurely. Under the Court’s normal procedures, the justices do not hand down a decision until a case has been reviewed by an appeals court, until the justices have received full briefing and oral argument on the case, and often until the justices have spent months preparing an opinion.

Because the Supreme Court is the final word on how to interpret federal law, the justices used to be very cautious about moving too quickly, for fear that they would err in a way that cannot be easily fixed. Indeed, this caution was so well-known among Supreme Court practitioners that they typically were reluctant to even ask the Court to consider a case on its shadow docket. As legal scholar Steve Vladeck has documented, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight” shadow docket applications asking the Court to block a lower court’s injunction, “averaging one every other Term.”

Trump’s Justice Department, by contrast, started filing shadow docket requests all the time — and the justices rewarded this behavior, providing at least partial relief to the Trump administration in about two-thirds of cases. The Court’s GOP-appointed majority also occasionally hands down major, precedent-setting decisions on its shadow docket. The Court’s shadow docket decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), for example, was one of the most consequential religion cases of the last four decades — giving religious conservatives a sweeping new ability to ignore many state laws.

Shortly after President Joe Biden took office, however, two key justices began to have second thoughts about using the shadow docket so aggressively. In a 2021 opinion joined by Kavanaugh, Justice Amy Coney Barrett expressed concern that litigants were using the shadow docket to get the Supreme Court to opine on cases it ordinarily would not hear, and “on a short fuse without benefit of full briefing and oral argument.” Since then, the Court has been more reluctant to grant such relief than it was during its Trump-era shadow docket rumspringa.

But while decisions granting shadow docket relief are now more uncommon than they were under Trump, they aren’t completely unheard of. And the Court even occasionally grants such relief to liberals. Last spring, for example, the Court blocked a decision by Matthew Kacsmaryk, a Trump judge who shares O’Connor’s penchant for reading the law creatively, after Kacsmaryk attempted to ban the abortion drug mifepristone.

One important question in VanDerStok, in other words, is whether at least two of the Court’s Republican appointees will view O’Connor’s decision as sufficiently egregious — and sufficiently threatening to public safety — to justify granting shadow docket relief to a Democratic administration.

In 2020, when Trump was still president and many lower court judges handed down decisions blocking Trump administration policies, Gorsuch complained that it is too easy for litigants who want to block a federal policy to shop around for a judge who will do so.

“There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” If every one of these district judges can issue a nationwide injunction blocking a federal policy, as O’Connor did in the VanDerStok case, then the “government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.”

This problem is especially bad in Texas because many of Texas’s federal courts effectively allow litigants to choose which judge will hear their case. Currently, for example, all civil cases filed in Wichita Falls, Texas, are automatically assigned to Judge O’Connor. So litigants who want to guarantee that their case will be heard by a Republican partisan with a penchant for judicial overreach need only bring their case in Wichita Falls.

In any event, Gorsuch hasn’t exactly pressed his concerns about litigants shopping around for judges who will sabotage federal policies ever since Biden took office, but he’s continued to express concerns about this practice in oral arguments and in concurring and dissenting opinions — that is, in non-binding opinions that don’t actually do anything to rein in judges like O’Connor.

Most notably, Gorsuch’s June opinion concurring in the judgment in United States v. Texas (2023) was joined by two other Republican appointees: Justices Clarence Thomas and Barrett. That was the opinion where Gorsuch warned that “a district court should ‘think twice—and perhaps twice again’” before attempting to set federal policy on a nationwide basis.

It is possible, in other words, that even if there aren’t five votes on the Supreme Court to block O’Connor’s VanDerStok decision altogether, that Thomas, Gorsuch, and Barrett might join with at least two of the Court’s three liberal justices to limit the scope of O’Connor’s decision. The Supreme Court could rule, for example, that the plaintiffs in VanDerStok — who include two companies that sell ghost gun kits — may benefit from O’Connor’s order while this case is litigated on appeal, but that the ATF regulations remain in effect for everyone else.

Such a decision would be temporary. Unless the United States Court of Appeals for the Fifth Circuit reverses O’Connor — which is unlikely because the Fifth Circuit is dominated by MAGA Republicans who think similarly to O’Connor — the Supreme Court will likely have to reconsider VanDerStok after it reaches the justices again through the ordinary process. And, if the Supreme Court ultimately agrees with O’Connor’s decision, its order will bind every judge in the country. The Supreme Court has the power to set national policy, even if O’Connor does not.

But it is, at the very least, possible that a bipartisan alliance will form among the justices that will keep O’Connor from deciding on his own whether ghost guns should be legal.

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