Many advocates, legal scholars, and public health researchers concerned about the gun violence epidemic in the United States have viewed the Supreme Court’s Second Amendment doctrine as the greatest barrier to reform. A rare victory for the government, announced at the end of the 2023 Supreme Court term, may signal a modest retreat from the Court’s 2022 holding that historical antecedents are the sole dictator of constitutionality. Whether optimism is warranted or not, a new blockade has emerged in 2024. Gun control may be caught in the crosshairs of the Court’s commitment to dismantling the administrative state. With Garland v. VanDerStok, which concerns restrictions on ghost guns, slated for the current term, advocates, scholars, and researchers may soon discover that the Court’s crackdown on federal agencies poses an obstacle to gun regulation comparable to that of the Second Amendment.
Though the public health price of gun violence in the United States is hardly a new phenomenon, the death count spiked at 49,000 in 2021. Against this backdrop, in 2022, the Supreme Court held in New York State Rifle & Pistol Association v. Bruen that the Second Amendment protects a right to carry firearms in public. More troublesome was the Court’s declaration that courts were not permitted to consider the public toll from gun violence or the challenged law’s ability to mitigate the harm. Instead, to sustain a firearm restriction, the government must show there were similar laws in the 18th and 19th centuries — for a long enough stretch of time and in a sufficient number of jurisdictions to demonstrate the challenged law is consistent with historical firearm regulations. This raised doubts about regulations related to large-capacity magazines, semi-automatic rifles, mass shootings, firearm suicides, and the whole host of public health crises the Founding Fathers could hardly have imagined.
Beyond the technological advances from muskets to AR-15s, drastic changes in the polity highlight the wide chasm between the country’s founding and today. Yet, in the 2023 case United States v. Rahimi, the Court upheld a federal firearm prohibition for those under domestic violence restraining orders despite no historical analogues from the coverture era where women were considered their husbands’ property. Writing for the majority, Chief Justice John Roberts said lower courts were mistakenly interpreting Bruen, which required evaluating “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” But many Court commentators and Second Amendment scholars have noted the inconsistency between Bruen and Rahimi, as did Bruen’s author, Justice Clarence Thomas. While this discrepancy leaves the Second Amendment’s analytical test unclear, Rahimi’s result may be more important for now, given the fact that women are 11 times more likely to be killed if their abuser has access to a firearm.
But the Supreme Court giveth and it taketh away. The federal government’s Rahimi victory was paired with a loss in Garland v. Cargill, which ruled the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) exceeded its Congressional authority by banning bump stocks under the National Firearms Act’s prohibition on machine guns. The Trump-era ban was issued after the Las Vegas mass shooting that killed 58 people and wounded over 500 others, with bump stocks allowing the shooter to drastically increase the firing rate to hundreds of rounds per minute. In his concurrence, Justice Samuel Alito conceded that the Congress that passed the law “would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock.” Nevertheless, the Court ruled the rate of gunfire did not matter, only whether it occurred “by a single function of the trigger.” In other words, the clear objective of Congress was irrelevant because its chosen language was too detailed.
In the Court’s 2024 term, another ATF rule comes under fire. VanDerStok examines whether the ATF again exceeded its authority by applying the Gun Control Act of 1968 to firearm kits or parts used to make “ghost guns” with no serial number, licensing, or background checks required. The statutory scope includes any weapon “which will or is designed to or may readily be converted to” a firearm or is the “frame or receiver” of a firearm. The Fifth Circuit acknowledged modern firearms development meant many guns no longer fell within the previous definition, thereby escaping regulation, but ruled this was irrelevant. Instead, the ATF went too far because “[a]ssembling a weapon parts kit takes much longer than thirty seconds” and, therefore, is not readily converted to an operable firearm. Despite categorizing these as inoperable parts, the ATF reports a 1,000% increase between 2016 and 2021 in ghost guns recovered from crime scenes, and Philadelphia saw a 311% increase from 2019 to 2022.
Meanwhile, lawsuits across the country accuse manufacturers of marketing the gun kits to minors, criminals, gun traffickers, and others who need to avoid background checks, already leading to large settlements. Striking down ATF’s rule would enable continued proliferation of ghost guns, while also potentially limiting the benefits of Rahimi because those prohibited from possessing firearms under domestic violence restraining orders may find gun kits and parts more easily attainable.
Though Rahimi hints at a significant analytical shift, it retains the “good guys vs. bad guys with guns” narrative profuse in prior rulings. Rahimi may represent both the Court’s opposition to Mr. Rahimi having a gun and the disarmament of those who do not “pose a credible threat to the physical safety of another.” Importantly, the Fifth Circuit echoed this concern, using the plight of “law-abiding citizens” seeking untraceable gun parts to overshadow the Congressional purpose for passing the Gun Control Act, which was to provide support in the “fight against crime and violence.” With the false binary of good gun owners and bad gun owners remains prevalent in both the constitutional and administrative space, there may be more hurdles to effective gun measures at the end of the 2024 term than there were previously. Ultimately, the Court’s inconsistent use of text, history, and “law-abiding” rhetoric may simply serve as a mechanism for picking and choosing who it believes warrants Second Amendment protections.
Michael R. Ulrich is an Associate Professor of Health Law, Ethics, & Human Rights at Boston University’s School of Public Health and School of Law.
