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The U.S. Supreme Court on Wednesday upheld a 

 that essentially bans manufacturers from selling so-called ghost guns. These are build-it-yourself gun kits, mainly bought online, that include all the parts of a gun but are untraceable because, when assembled, they have no serial numbers.

In 2022, as ghost guns became more and more of a problem for law enforcement, the Bureau of Alcohol, Tobacco, Firearms and Explosives enacted a new rule classifying these kits as firearms under the 1968 Gun Control Act. That law defines a firearm as any weapon that is designed to or may readily be converted into a functional firearm. Gun manufacturers promptly challenged the new regulation, contending that a bunch of gun parts is not a gun. But on Wednesday the Supreme Court, by a 7-to-2 vote, upheld the regulation.

Writing for the court majority, Justice Neil Gorsuch said that under the broad language of the 1968 Gun Control Act, the ATF was well within its authority in requiring those who make or sell gun kits to mark their products with serial numbers, keep records of their sales, and conduct background checks on buyers.

None of these requirements was in place for unmarked guns prior to 2022, and as Gorsuch pointed out, the consequence was an explosion of ghost guns found at crime scenes across the country. Indeed, in 2017 law enforcement agencies submitted only about 1,600 ghost guns to the federal government for tracing, but by 2021, that number had jumped to 19,000.

"This is an important decision that will help reduce access to guns by criminals and others who are barred from owning firearms," said UCLA law professor Adam Winkler, who has written extensively about guns and gun rights. 

I think the best way to understand the court's decision is that there may be some gun kit out there that would not suffice to be a firearm because it required too much work for the owner to put it together. But the court seemed to suggest that those occasions would be unlikely or rare."

Indeed, in his opinion for the court, Justice Gorsuch noted that gun kits are easy to put together in less than an hour. Pointing to one manufacturer's "Buy Build Shoot" kit, he said, "Really, the kit's name says it all."

Dissenting from the decision were Justices Clarence Thomas and Samuel Alito, who wrote separately.

The lopsided majority in the gun case leaves lots of other unanswered questions, starting with how the Trump administration will react. It could, after all, seek to rescind the rule that the Supreme Court upheld on Wednesday.

Then, too, there are questions about where the court itself is headed. The ghost gun case did not involve the constitutional right to bear arms — a right that the court dramatically expanded in 2022, declaring for the first time that gun laws could only be upheld if they were analogous to laws that existed at the time of the founding.

But as Professor Winkler observes, there are serious and, so far, unanswered constitutional questions about whether the 1968 Gun Control Act at issue in the ghost gun case satisfies the court's demand for a law analogous to one at the founding.

That's is just one of many conflicting signals from the court.

Last year, in another gun case, the court did not require a historical analog in upholding a federal law banning domestic abusers under a court order from owning or possessing a gun. The lone dissenter was Justice Thomas, the author of the court's sweeping gun rights decision in 2022.

None of these mixed signals is definitive. In fact, there are multiple challenges to state and local bans on assault weapons and large ammunition magazines that have been upheld by lower courts and are now on appeal to the Supreme Court.

What is clear is this: In 2022, the Supreme Court's conservative supermajority dove headlong into the deep end of a constitutional pool that seemed to make gun control very hard to defend in court. Since then, at least so far, it has seemed a bit hesitant about heading back to the deep end.

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The court says ghost guns, which are virtually untraceable weapons that require assembly, are considered "firearms" and subject to ATF regulation.

Supreme Court upholds a Biden-era rule regulating ghost guns

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