Can ghost guns be regulated as firearms? The Supreme Court will decide.

Guns are back to haunt the Supreme Court on Tuesday in a case that fittingly tests the legality of so-called “ghost guns.”

They’re called ghost guns because unlike guns bought from a licensed dealer, these build-it-yourself gun kits have no serial numbers stamped on the assembled firearm, so the guns can’t be traced if found at a crime scene. And there are no background checks done on people who purchase the kits. The kits can be purchased online without any background check, and without presenting identification. In fact, according to regulations, the kits can be purchased anonymously with cryptocurrency, using a pre-paid debit card.

In 2022, as gun kits became more and more of a problem for law enforcement, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule classifying the kits as firearms under the 1968 Gun Control Act. The statute defines a firearm as “any weapon…which will or is designed to or may readily be converted” into a functional firearm.

The government contends that these ghost guns kits, which can be readily converted into a firearm “in a matter (of) 30 minutes or less,” count as a firearm under the 1968 law.

Pete Patterson, representing kit sellers and buyers who are challenging the regulation, counters that “a kit of parts is not a weapon.”

He will tell the Supreme Court that the frame of a pistol or the receiver of a rifle, both of which house the mechanisms that fire the bullets, are not parts as defined in the Gun Control Act.

“The statute doesn’t say that,” he contends, adding that Congress could amend the existing law “but until it does so, the ATF doesn’t have the authority to take that upon itself.”

“In seeking to regulate these “non-firearm objects” the ATF’s Final Rule directly contradicted Congress’ definition of “firearm” set forth in the Gun Control Act of 1968, according to the Second Amendment Foundation, which has been involved in challenging the “ “ghost guns” rule.

Southern Methodist University law Professor Eric Ruben counters that the Gun Control Act was meant to be “broad, and flexible.”

The 1968 law “was passed in part to stop the problem of that day, which was the mail order shipment of firearms across state lines like the one that was used by Lee Harvey Oswald to assassinate JFK,” he says. “These kits present the modern-day version of the mail firearm orders that were a problem back in 1968.”

The conservative 5th Circuit Court of Appeals based in Louisiana didn’t buy that argument, and struck down the ATF ghost gun rule. But the Supreme Court temporarily paused that decision and hears arguments in the government’s appeal on Tuesday.

The Biden administration argues that the ghost gun rule doesn’t ban the sale or use of gun kits. It merely requires that the manufacturers and sellers of these kits abide by the same conditions and qualifications required in other commercial firearms sales. Specifically, sellers must mark their products with serial numbers and conduct background checks on those who buy the gun kits.

In its Supreme Court briefs, the government asserts that gun kits are analogous to IKEA furniture. “If a state placed a tax on the sale of furniture, IKEA couldn’t avoid paying that tax” just because the furniture comes in parts “to be assembled by the purchaser.”

“That is not a good analogy,” replies Patterson, the kit defender. “The issue here is that there is no item that has been machined to the point where it is a frame or receiver.”

In other words, he says, you need tools, sometimes expensive tools, and it can sometimes take hours to convert the gun parts into the primary structural component of a gun — the frame or receiver.

It is on the frame of a gun or the receiver of a rifle that the serial number would normally go. But ghost guns have no such serial numbers on them. Indeed, gun violence prevention groups point to an ad for a ghost gun kit that features the image of a hand giving the finger to the viewer where a serial number would normally appear.

The government claims that if gun kit manufacturers are permitted to continue selling their unmarked products, it would transform the central definition of the Gun Control Act into an invitation for evasion.

Law enforcement groups have expressed alarm, too, pointing to a proliferation of untraceable ghost guns found at crime scenes in the last few years. In briefs filed in this case, police chiefs in 70 major cities, prosecutors, national security officers, and leading intelligence officials from Republican and Democratic administrations assert that bad actors are drawn to ghost guns “for the very reasons that the government wants to regulate them : they are untraceable and they are readily available to those who would not otherwise pass background checks.”

Even if the Supreme Court upholds the ghost gun rule, though, the battle over unmarked and untraceable guns will continue. 3-D printed guns, made mainly with cheap home-use printers, are the next frontier. The ATF and Justice Department are already pouring resources into developing strategies and training law enforcement officers on how to detect and seize these untraceable 3-D printed weapons. Importantly, the ATF is also setting its sights on those who sell or use 3-D printers to convert legal firearms like Glock pistols into illegal machineguns by adding a 3D-printed conversion device, commonly known as a “switch.”

Of course, all of that may well be challenged by gun groups in the Supreme Court, too.