The Supreme Court’s blockbuster gun case is a shot at redemption

Last week, the Supreme Court heard Garland v. VanDerStok, a blockbuster case concerning “ghost guns”. These are “gun parts kits” that can be converted into functional guns by novices with a few hours and the right YouTube tutorial.

Currently, the Biden administration treats these kits as firearms, subject to background checks and age requirements. The court’s decision will determine whether that treatment continues, or whether minors and those who would fail a background check can evade basic firearm regulations by purchasing a ghost gun.

In past cases, the conservative court has often sided with the gun industry. Earlier this year, for instance, the court announced its decision in Garland v. Cargill, which tested regulations of bump stocks. That case divided the court 6-3 along ideological lines lines, with Justice Clarence Thomas’s majority opinion holding that a bump stock (a device used in the 2017 Las Vegas mass shooting) is not a machine gun.

However, in last Tuesday’s ghost gun oral argument, several justices gave the impression that they are inclined to follow the law’s clear text, even where that text leads to gun regulation.

VanDerStok tees up a question of linguistics: Do these gun-making kits fall within the meaning of the word “firearm” in the Gun Control Act of 1968? The justices will interpret the law under the framework of “textualism” — the philosophy that legal disputes should be resolved by considering what ordinary speakers of English would understand the text of the law to mean.

The gun industry representatives challenging the regulation argue that the word “firearm” excludes gun parts kits. As scholars of linguistics, we find this unpersuasive. 

The word “firearm” denotes a class of human-created objects; it is what linguists call an artifact noun. As Justice Neil Gorsuch’s oral argument questions clarified, artifact nouns often refer to things that function only upon additional assembly or finishing with additional tools. 

Justice Samuel Alito asked, skeptically, whether separate eggs, chopped ham and pepper constitute an “omelet.” Justice Amy Coney Barrett proposed a tighter analogy to the gun part kits at issue: “Would your answer change if you ordered it from HelloFresh?” 

We would understand that kit to be an omelet — just as a gun parts kit, designed and readily convertible to become a functioning firearm, is a firearm. The justices discussed other examples, such as an IKEA table (which we understand to be a table, even when unassembled).

Even ghost gun sellers and buyers recognize this linguistic fact. In our amicus brief to the court, we highlight advertisements that repeatedly refer to parts kits as firearms. 

“Introducing the AR-40 4.5″ MOD1 Billet Upper Receiver Pistol Build Kit,” reads one example, “a powerful and compact firearm designed to deliver outstanding performance in the dynamic world of pistol builds.” 

We have documented scores of instances on the internet where the word “firearm,” “gun” or “rifle” plausibly refers to a ghost gun kit. To complement this textual evidence found on the internet, we conducted a survey of ordinary American speakers of English, half of them Republicans, and the other half Democrats. Respondents read a description of a gun parts kit and were asked whether it is a firearm. 

The majority agreed: The gun parts kit is a firearm. Insofar as the textualist court seeks the “ordinary meaning” of “firearm,” the answer is simple: Gun parts kits fit.

That ghost guns are “firearms” is further underscored by the law’s context, an essential ingredient of interpretation that is emphasized in Justice Barrett’s context-sensitive jurisprudence.

The Gun Control Act of 1968 defines “firearm” as including any weapon “which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” When Americans in our survey were presented with the language of the statutory definition, an even stronger majority said that it applies to gun parts kits.

The court will resolve a second question in VanDerStok, about the meaning of “frame” and “receiver” (which are not explicitly defined in the law). Frames and receivers are the lower parts of a gun that hold the firing central mechanism. So-called “80 percent” frames and receivers require some additional at-home finishing before they are functional. 

Even so, we find that gun parts manufacturers advertise these as simply a “frame,” not “a piece of metal.” 

Gorsuch’s questions underscored the role of statutory context in the meaning of “frame” and “receiver.” The statute repeatedly emphasizes that nearly functional and readily convertible parts (firearms themselves, mufflers, silencers, destructive devices) count. In such a context, the best reading of “frame” and “receiver” includes objects that are readily convertible to a functional form.

Other justices recognized the strength of the government’s position. 

Kavanaugh agreed that the government’s “statutory interpretation [argument] has force.”

Justice John Roberts asked about “the point” of selling these gun parts kits: Are they for hobbyists, or simply for those who seek to evade basic firearm regulations? He noted that one might enjoy building a car as a hobbyist, but it seems strange to think that people are buying these kits and drilling a few holes — in as little as 21 minutes — as a “hobby.” 

Solicitor General Elizabeth Prelogar underscored the merit of this concern in her closing argument: Ghost guns are used frequently in crimes and are purchased to easily evade basic firearms regulations.

Before the oral arguments, many expected the court’s decision in VanDerStok to turn on the justices’ political ideology rather than honest linguistic analysis. But there are hints that the textualist justices may follow the text, thereby restricting access to firearms by potential terrorists, minors, felons, domestic abusers, and those who would otherwise fail a background check.

In a time of historically low public approval of the Supreme Court, VanDerStok offers the justices an opportunity to demonstrate their commitment to the textualist principles they espouse.

Kevin Tobia is a professor of Law and Philosophy at Georgetown University. Nathan Schneider is an associate professor of linguistics and computer science at Georgetown University. Brandon Waldon is a Georgetown University postdoctoral associate in computer science and linguistics.