In March, the U.S. Supreme Court ruled on what constitutes a “firearm” for purposes of the federal Gun Control Act of 1968 (GCA) in the case of Bondi v. VanDerStok. The media misleadingly portrayed the case as upholding the legality of a Biden-era regulation banning “ghost guns.” In fact, neither the regulation nor the Court’s opinion banned any sort of firearm, although the majority did extend the GCA’s reach to a narrow category of unfinished receiver patterns and parts kits that contain them. The opinion’s reasoning and limitations deserve a closer look than what most news stories provided.
My March column in this magazine took a deep dive on what the media call “ghost guns.” For present purposes, what that term means is self-made, unmarked firearms. There has never been a time in U.S. history where the federal government banned the making of a firearm for one’s own use, nor required the maker of such a firearm to engrave it with a serial number and report that information to the government. Fortunately (apart from machine guns or other firearms regulated under the National Firearms Act), that is still largely the case.
But advancements in technology have created a much broader market in recent years for self-made firearms. Instead of requiring specialized tools and know-how, these products placed the making of guns within reach of do-it-yourselfers using drills, files and other common hand tools. One of the most well-known products of this kind was the Polymer80, an unfinished pattern for a handgun frame that can—with care and attention—be finished into a workable frame for a pistol.
Those who have attempted this task know the tolerances required to turn a Polymer80 into a reliable gun are rather demanding; it’s easy to get it wrong. They also know anti-gun activists exaggerate the ease and speed of this process. Nevertheless, after the Polymer80 introduction, additional products were developed to aid the process, including jigs, guides and online tutorials. Eventually, all these things were packaged together in kits containing the parts necessary to build a functional firearm from a Polymer80-type pattern, including some of the tools.
Predictably, anti-gun activists, who do not want any Americans accessing any guns by any means, began claiming these kits were a workaround to the regulated market for firearms. In the GCA paradigm, commercial gunmakers must: be licensed by the government; keep records of guns made and transferred; mark their guns with manufacturing information and serial numbers; and distribute them through dealers who similarly must be licensed, maintain records and run background checks on retail customers. This process is supposed to “keep guns out of the wrong hands” and allow them to be traced back to the initial purchaser if they are recovered by law enforcement.
In truth, none of that prevents criminals from getting guns illegally, including on the black market, via straw purchases or by theft. These methods are still overwhelmingly how bad guys obtain firearms, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), even in the era of supposedly “some-assembly-required” online guns.
Yet anti-gun activists claim the use of “ghost guns” in crime is “exploding.” Statistics, however, can mislead. If a police department recovered one unmarked, self-made gun in 2021 and 10 in 2024, for example, it could claim the proliferation of “ghost guns” surged by 1,000%, even if the 10 “ghost guns” were a miniscule fraction of overall crime guns. Indeed, ATF’s most recent figures indicate that “unlicensed making” was the “trafficking channel” in only 3% of their firearm trafficking investigations from 2017 to 2021.
This was the background of VanDerStok, which concerned the legality of a Biden-era rule the ATF published on April 26, 2022, entitled “Definition of ‘Frame or Receiver’ and Identification of Firearms.”
The asserted authority for the heart of the rule was the GCA’s definition of “firearm,” the categorization that triggers the act’s many requirements. This definition includes:
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon … .
ATF’s rule stretched the concept of a “firearm” beyond this statutory language in two ways. First, it included “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” It also specified that a regulated “frame or receiver” shall “include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver … .”
Industry members and others challenged the regulation before it was enforced under a federal statute called the Administrative Procedures Act (APA), which prohibits a rule that is “in excess of” an agency’s “statutory … authority … .” The plaintiffs faulted the rule for including unfinished receiver patterns and parts kits containing them in the definition of “firearm” and asked that the rule be “set aside.” Both a district judge in the Northern District of Texas and the U.S. Court of Appeals for the Fifth Circuit granted this request. The Biden administration appealed the Fifth Circuit ruling to the U.S. Supreme Court, claiming it would allow criminals to obtain “untraceable firearms” that they could easily assemble themselves.
The plaintiffs argued the GCA’s text makes clear that a “weapon” that counts as a “firearm” must already have a “frame or receiver” and that a “frame or receiver” must be a finished object to count as such, since the statute didn’t mention anything under that heading which “may readily be converted” into a frame or receiver. As the Fifth Circuit noted, “a part cannot be both not yet a receiver and a receiver at the same time.”
The Supreme Court, in an opinion by Justice Neil Gorsuch, disagreed, inventing a new technique of statutory interpretation using a term that appeared to be making its debut in published American case law. That term was “artifact noun,” i.e., “a word for a thing created by humans.” According to the majority opinion, “everyday speakers sometimes use artifact nouns to refer to unfinished objects—at least when their intended function is clear.”
The Court then applied this concept to a Polymer80-type pattern, which it held to be a “frame” under the GCA’s “firearm” definition and to a parts kit containing such a pattern, which it held to be a “weapon” under that same definition. It likened these items to an unassembled kit from IKEA being called a “table.” To punctuate this point, the Court’s opinion included pictures of a kit containing a Polymer80 and a pistol built from that kit. “What else would you call it?” Justice Gorsuch asked rhetorically.
The court used another unconventional device to save the rule, by insisting the plaintiffs were bringing a “facial” challenge and by importing, at the government’s request, a test typically used for constitutional challenges to statutes. Under this test, a single valid application of the rule would save it from invalidity. The Court held that because the rule could at least be applied to Polymer80s and build kits containing them, it was not “facially” invalid.
Two dissenting justices, Clarence Thomas and Samuel Alito, took issue with these conclusions. Thomas’ dissent focused on the novel use of the “artifact noun” concept, rather than the statute’s plain language. Alito’s warned that allowing a rule to survive on a single valid application meant that essentially no rule could be successfully challenged under the APA as exceeding the underlying statutory authority.
At the end of the day, what can be said for sure about the ruling is that Polymer80s and their copies, and build kits containing these items, are now GCA-type “firearms” and must be manufactured and sold as such—through federal firearm licensees who mark them, keep records and run background checks on retail customers. That ends their availability directly to the consumer via online or unlicensed sales.
The Supreme Court indicated, however, that even if an IKEA kit is a “table,” a pile of logs is not; likewise, not everything that is in a stage of manufacture prior to completion can be regulated by ATF as a “frame or receiver” or a “firearm.” Where those lines are drawn, however, will be left to future cases.
The NRA has already suggested that the Trump administration should repeal the Biden-era rule at issue in VanDerStok. If it did, the Court’s ruling would continue to stand as to Polymer80s and build kits that include them under the GCA itself. Since there is nothing else on the market that poses the same asserted problems to the same asserted degree, and since the Supreme Court declined to opine on the rule’s other possible applications, there is no longer any practical use for the regulation, anyway.
Thus, while VanDerStok is a disappointment for Second Amendment supporters, there isn’t much about the opinion for anti-gunners to celebrate, either.
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