(Washington) What is a gun? This is the thorny question being debated on Tuesday by the American Supreme Court, which is considering the regulation of “ghost guns”, because they lack a serial number.
In 2022, in order to curb gun violence, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the federal agency responsible in this area, issued regulations requiring them to same standards as for conventional weapons.
This regulation aimed not to ban them, but to ensure that the 1968 law on weapons was applied to them, by requiring a serial number and verification of the criminal records of purchasers.
The authorities are alarmed by a proliferation of these weapons sold in spare parts or to be manufactured at home using 3D printers: their estimated number has increased tenfold between 2016 and 2022.
But gun owners as well as organizations campaigning for the right to bear arms have challenged this regulation in court.
A federal judge in Texas (south) then an ultraconservative appeals court ruled in their favor in 2023, finding that the ATF had exceeded its prerogatives and that such a change was up to Congress.
The Supreme Court, by a majority of five votes to four, those of two conservative judges, including its president, John Roberts, and three progressives, nevertheless suspended this decision, at the request of the Biden administration, while she rules herself.
Comparison with furniture to be assembled
In her written arguments, the Biden administration’s legal advisor, Elizabeth Prelogar, criticizes the appeal decision for allowing an escape from both the spirit and the text of the law.
She compares gun-making kit distributors to Swedish giant IKEA. If a state imposed taxes on furniture, “IKEA could not avoid paying them on the grounds that it does not sell furniture, but sells ‘furniture kits’ to be assembled by the buyer”, she argues.
The opposing party asserts that within the meaning of the 1968 law, “an incomplete assembly of components is not a ‘weapon'” and assures that criminals far prefer to obtain professionally manufactured weapons.
If the regulation of these “ghost” weapons must evolve, that power rests with Congress, not a government agency, she adds.
In June, on a similar subject, that of the ban by the ATF under the Trump administration of “bump stocks” (removable stocks which increase the rate of fire of semi-automatic rifles and converting them de facto into machine guns) , the Supreme Court was sensitive to this argument.
The six conservative judges, against the opinion of the three progressives, had annulled the ban on the grounds that the ATF had encroached on the scope of legislative power by reclassifying “bump stocks” in 2018 in the category of machine guns, prohibited by a law of 1934.
The Supreme Court must rule on the “ghost” weapons case by the end of the first half of 2025.