Sometimes, oral arguments in the nation’s highest court are like a law school class. The depths of a theory or approach are examined for strengths and probed for weaknesses with a mind toward understanding a complicated matter. Other times, you get what happened in the Supreme Court on Tuesday, October 8, with the ghost gun case. Instead of evoking arguments from the advocates, justices acted more like members of Congress at a committee hearing, asking questions to advance their own argument.
It Depends on the Meaning of ‘Is’
Garland v. VanDerStok concerns whether the Bureau of Alcohol, Tobacco, Firearms and Explosives, a Justice Department agency, may change the meaning of what a law prohibits simply by deciding to apply new definitions to what is a firearm or a firearm receiver*.
Polymer technology and 3D printing have made it possible for Americans to create firearms at home. These are the “ghost guns” you may have heard about. They are homemade guns, generally free from federal regulation since the republic’s founding. Seeing their newfound popularity as unacceptable, the Biden-Harris ATF decreed that what was previously not a firearm would be considered one and that parts of a gun would be considered intact and fully functional, thus prohibiting the items.
Typically, justices challenge advocates before them, even those with whom they ultimately agree. It’s a tell that a justice thinks a lawyer is not doing a great job if they jump in not to challenge but to help them or present new arguments favoring the position of the lawyer speaking. On Tuesday, Justice Sonya Sotomayor vaulted the bench to join the anti-gun arguments promulgated by the lawyer tasked with making them, followed by an assist from Justice Ketanji Jackson. Justice Samuel Alito laid bare the plain language deficiencies of the Department of Justice (DOJ) in its quest to ban guns without legislation. Meanwhile, Justice Amy Coney Barrett signaled a willingness to favor the gun control push.
Ghost Gun Challenge – Wait Until Your Arrest.
Justice Sotomayor jumped in, favoring the Biden-Harris novel prohibitions, during Solicitor General Prelogar’s superbly prepared turn. It’s a testament to Sotomayor’s fervor that she was compelled to thrust her own points into the presentation. They were all in service to the notion that the regulations were acceptable, or that the type of challenge made here, called a facial challenge, is the wrong type (too broad) and instead that Americans need to wait to be prosecuted, then challenge the government (an as-applied challenge).
Justice Alito made the government’s arguments simple to understand and easy to dismiss. He said, “I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?” And, “Here’s a blank pad, and here’s a pen, all right? Is this a grocery list?” Justice Barrett, however, seemed unconvinced. She said:
“[I]t doesn’t stretch plain English to say, I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them, especially under statutory language that refers to something like breakfast foods or things that can be readily converted to make breakfast.”
Limited government advocates demand that Congress pass laws signed by the president or enacted over his veto, especially when new crimes are applied against the people. That is juxtaposed with its counterpoint, allowing bureaucrats to change laws absent legislative approval. Donald Trump engaged in such rulemaking with his bump-stock ban, often associated with the progressive left, enacted after the 2017 massacre at the Mandalay Bay resort in Las Vegas. The Supreme Court struck down that ban earlier this year by a 6-3 vote. A ruling in this case is expected by the spring of 2025.
*A “receiver” is part of the firearm that houses or incorporates some of the internal mechanisms such as the hammer, bolt, or firing pin.
Dig Deeper into the Themes Discussed in this Article!
Liberty Vault: New York State Rifle & Pistol Association, Inc. v. Bruen
Liberty Vault: United States v. Rahimi
Liberty Vault: District of Columbia v. Heller
