The Supreme Court Could Strike Down One of the Most Effective Gun-Safety Measures in Memory
Next week, the Supreme Court will hear oral arguments in Garland v. VanDerStok, a case with life-and-death implications for gun violence in the United States. The justices will consider a rule issued by the Biden administration cracking down on “ghost guns”—fully functioning firearms that are disproportionately used to commit murder, domestic abuse, and terrorism. For years, ghost gun companies sold kits online to consumers that contained the parts necessary to build a handgun or AR-15–style rifle. Customers could purchase the kit without a background check, then build the weapon in as little as 20 minutes with the help of a YouTube video. These guns had no serial number, making them nearly impossible for law enforcement to trace when used in crimes.
The Supreme Court allowed new restrictions on the sale of ghost guns to take effect in August 2023, albeit by a 5–4 vote, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the liberals. Now the court will decide whether to uphold the rule on the merits. On a new episode of Amicus, Mark Joseph Stern discussed the high-stakes case with Eric Tirschwell, executive director and chief litigation counsel of Everytown Law, the litigation arm of Everytown for Gun Safety. Below is an excerpt of their conversation, edited and condensed for clarity.
Mark Joseph Stern: Just to get one thing straight: The rule we’re talking about here doesn’t ban ghost guns outright, correct? It just says that if you’re going to sell ghost guns, you have to follow all the rules that other gun dealers follow.
Eric Tirschwell: That’s right. The rule requires that anyone who’s selling kits that can be readily made into an operable firearm has to follow the most important regulations under the Gun Control Act, including putting serial numbers on every gun and doing background checks on every purchaser.
Last year, a federal report revealed that the use of ghost guns in crimes has risen more than 1,000 percent in recent years. Can you talk about the sudden proliferation of these guns and their impact on violent crime?
Back in 2017 and 2018, law enforcement was recovering 1,000 or maybe 2,000 of these ghost guns nationwide. We saw the number of recoveries start to jump around 2019, and by 2021, the number had risen to 19,000. By 2022, law enforcement was recovering something like 25,000 of these ghost guns at crime scenes across the nation. The industry’s business model is fundamentally premised on circumventing gun laws, selling to people who otherwise could not purchase firearms. We’re talking about violent felons, minors, and domestic abusers, who can go online and buy “a pistol in a box,” which is the term the industry used to describe these kits. Not surprisingly, these became the weapon of choice for people who couldn’t get their hands on a firearm legally and wanted to put them to ill use.
It seems like the sellers frequently boasted about the fact that they were skirting the law or exploiting a loophole. The briefs in this case feature websites that told consumers: “Normally you might not be able to buy a gun, but from us, you’re in the clear.”
Absolutely. A large number of sellers online were promoting the fact that there’s no background check, no paper trail. One ghost gun seller actually put an image on the receiver—the core component of an AR-15—that had an image of a hand with a middle finger up. It said: “Here’s your serial number.” I think that says it all about what the industry thinks about whether it should be subject to regulation.
Lower courts initially blocked the ghost gun rule, but the Supreme Court allowed it to take effect last year. It’s been enforced for some time now. What has the impact been on the ground?
The early data that has emerged just over the past six to nine months shows that the number of recoveries of ghost guns has started to come down, sometimes in significant ways. It clearly shows that this new rule—along with other pressure on the industry, including some lawsuits that my firm filed against some of the biggest players in the industry—is working. These things have basically shut down this industry right now. The question in front of the Supreme Court is: Are they going to keep it shut down and keep use of ghost guns in crimes on a downward trajectory? Or are they going to open that box up? If they do reopen that box, it will have really tragic public-safety implications.
I feel like most gun cases reach the Supreme Court with primarily theoretical implications. Nobody knows exactly what will happen if the court strikes down this or that law. But here, we have a real-world experiment where there is a rule that has taken effect and it had an immediate and meaningful impact on reducing violent crime. It is reducing crime in cities that had seen a surge of murders and other violent offenses committed with ghost guns. Now the stakes for the Supreme Court are, or should be, very clear and concrete. We have very clear evidence that if the court strikes down this rule, it will essentially revive some of the companies that have been basically put out of business. It will allow these companies to keep flooding the streets with ghost gun kits and will all but ensure that people will needlessly die being shot by weapons that should have remained illegal if SCOTUS had done its job right.
That’s absolutely right. We are talking about tens of thousands of these guns per year recovered at crime scenes at their peak. They have a heavy impact on teenagers in particular because a teenager can go online from the comfort of their bedroom and, with just a credit card or even a gift card, they can get a gun-building kit delivered to their doorstep. They can put it together without much skill at all, and suddenly they have a functioning pistol that they could not walk into a gun store and purchase because they’re too young. Predictably, before the rule, we saw teenagers doing terrible things with these weapons. We represented two families who each lost a son to a ghost gun shooting; another teenager showed up to what was supposed to be a fistfight to settle a beef, but he showed up with a ghost gun that he ordered online and murdered two teens.
We’ve also seen law enforcement being targeted by criminals with ghost guns. We had a case in California where two Los Angeles deputy sheriffs were ambushed while sitting in their patrol car by someone with a long criminal record. Yet he was able to get a ghost gun and inflict grievous injuries on these officers. This is really a law-and-order issue. You know, when the Biden administration announced the new rule in 2022, the NRA claimed it would do nothing to address violent crime. That was a preposterous assertion—it was absolutely wrong. All the evidence shows that this rule has helped reduce violent crime and will continue to do so if the Supreme Court lets it.