John Roberts and Amy Coney Barrett could vote to uphold Biden’s ‘ghost guns’ regulation

The Supreme Court split 5-4 last year when it temporarily approved the Biden administration’s regulation of so-called ghost guns pending a final resolution of the litigation. If Tuesday’s oral arguments in the dispute are any indication, the justices could be on their way to fully allowing government regulation of the kits for making untraceable weapons.

Chief Justice John Roberts and Justice Amy Coney Barrett were in the majority last year alongside the court’s three Democratic appointees, over the dissent of the remaining four Republican appointees. Roberts’ and Barrett’s questions at Tuesday’s hearing suggested that their votes in the final resolution of the case could track their earlier votes.

To be sure, oral argument is never a guaranteed sign of how the court will rule, so we’ll have to see how the justices come down in the decision, which is expected by late June.

But following the hearing, the challengers to the regulation might not feel great about their prospects. At one point, Barrett said one of their arguments sounded “a little made up.” Roberts questioned their claim that the kits are enjoyed by people who like building guns in the way that people like working on their cars over the weekend. And the court’s three Democratic appointees were expectedly favorable to the government, bolstering the possibility that the court’s temporary vote last year could mirror its permanent one.

As I noted in a preview of the case, the appeal stems from a challenge to a 2022 rule from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives that regulates the ghost gun kits and parts. The agency isn’t banning ghost guns but rather wants to treat them like regular firearms, meaning they need serial numbers, licensed dealers and background checks. The legal question basically comes down to whether the ATF is within its rights to regulate the kits under federal law or whether, as the challengers argue, the agency acted beyond its congressional authorization.

Responding to the challengers’ contention that ghost gun kits are for hobbyists, U.S. Solicitor General Elizabeth Prelogar called that “a questionable proposition, given that if it only takes 20 minutes, the hobbyist is probably not going to get his money’s worth and won’t actually have the experience of building a gun.” She also said that the claim is “contradicted by the facts on the ground. Because what the evidence shows is that these guns were being purchased and used in crime. They were sold to be crime guns.”

Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.