Amicus Curiae Brief — Pamela Bondi, Attorney General, et al., Petitioners v. Jennifer VanDerStok, et al.

Supreme Court briefMar 7, 2024

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No. 23-852

IN THE

Supreme Court————

of the United States

MERRICK B. GARLAND, ATTORNEY GENERAL, et al.,

Petitioners,

JENNIFER VANDERSTOK, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF THE DISTRICT OF COLUMBIA AND THE

STATES OF NEW JERSEY, PENNSYLVANIA, ARIZONA,

CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII,

ILLINOIS, MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, NEVADA, NEW YORK, NORTH CAROLINA,

OREGON, RHODE ISLAND, VERMONT, WASHINGTON,

AND WISCONSIN AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

MATTHEW J. PLATKIN

BRIAN L. SCHWALB

Attorney General for

Attorney General for the

New Jersey

District of Columbia

JEREMY FEIGENBAUM

CAROLINE S. VAN ZILE*

Solicitor General

SAMUEL L. RUBINSTEIN

ASHWIN P. PHATAK

Deputy Attorney General

Principal Deputy

Office of the Attorney General

Solicitor General

of New Jersey

ELISSA R. LOWENTHAL

Assistant Attorney General

25 Market St., P.O. Box 112

Office of the Attorney General

Trenton, NJ 08625

for the District of Columbia

MICHELLE A. HENRY

400

6th St., NW, Suite 8100

Attorney General for

Washington,

D.C. 20001

Pennsylvania

(202) 724-6609

KIRSTEN HEINE

caroline.vanzile@dc.gov

Chief Counsel to the

Attorney General

* Counsel of Record

ELIZABETH LESTER-ABDALLA

Deputy Attorney General

Office of the Attorney General

for the Commonwealth of

Pennsylvania

1600 Arch St., Suite 300

Philadelphia, PA 19103

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

INTRODUCTION AND INTEREST OF

AMICI CURIAE .................................................... 1

SUMMARY OF ARGUMENT.................................... 3

ARGUMENT .............................................................. 4

I. The Final Rule Fits Squarely Within The

GCA’s Comprehensive Scheme. ........................... 4

A. The Final Rule is consistent with the

text, history, and purpose of the GCA ............ 5

B. The Final Rule advances the GCA’s

purpose in line with this Court’s prior

interpretation of the Act ................................. 8

II. The Final Rule Complements State Efforts

To Regulate Unserialized Firearms ................... 10

A. At least sixteen jurisdictions, including

the District, have passed their own laws

regulating kits and other unserialized

firearms.......................................................... 11

B. Despite state efforts, the number of

unserialized firearms has grown

exponentially ................................................. 13

C. The Final Rule works to close the gaps

inherent in state-by-state enforcement ........ 18

CONCLUSION ......................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014)............................. 3, 4, 8, 9, 10

Barrett v. United States,

423 U.S. 212 (1976)............................................... 9

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)........................................... 6, 7

Garland v. Vanderstok,

144 S. Ct. 44 (Mem.) (2023) ................................ 17

Huddleston v. United States,

415 U.S. 814 (1974)........................................... 8, 9

Moore v. State,

983 A.2d 583 (Md. Ct. Spec. App. 2009) ...... 19, 20

Torres v. Lynch,

578 U.S. 452 (2016)............................................. 11

United Auto., Aircraft & Agric. Implement Workers of

Am. v. Wis. Emp. Rels. Bd.,

351 U.S. 266 (1956)........................................... 1, 2

United States v. Cruikshank,

92 U.S. 542 (1875)............................................... 20

iii

VanDerStok v. Garland,

86 F.4th 179 (5th Cir. 2023) ................................. 4

Federal Statutes

18 U.S.C. § 921 ............................................................. 5

18 U.S.C. § 922 ............................................... 1, 7, 8, 18

18 U.S.C. § 923 ....................................................... 1, 19

Regulations

Definition of “Frame or Receiver” and

Identification of Firearms, 87 Fed. Reg.

24652 (Apr. 26, 2022)...1, 2, 3, 5, 10, 11, 14, 15, 19

Legislative History

114 Cong. Rec. 13647 (1968) ..................................... 8

H.R. Rep. No. 90-1577, as reprinted in 1968

U.S.C.C.A.N. 4410 ...................................... 6, 7, 20

State Statutes

2023 Or. Laws Ch. 229 § 3 (H.B. 2005) .................. 12

2023 Or. Laws Ch. 229 § 4 (H.B. 2005) .................. 13

720 Ill. Comp. Stat. Ann. 5/24-5.1 ..................... 12, 13

Ala. Code § 13A-11-64 .............................................. 11

Cal. Penal Code § 16519 .................................... 12, 19

Cal. Penal Code § 16531 .......................................... 12

Cal. Penal Code § 29180 .......................................... 13

Cal. Penal Code § 29182 .......................................... 13

Cal. Penal Code § 30400 .................................... 12, 13

Colo. Rev. Stat. § 18-12-111.5 ............................ 12, 13

Conn. Gen. Stat. Ann. § 29-36a ............................... 13

Conn. Gen. Stat. Ann. § 53-206j .............................. 12

Del. Code Ann. tit. 11, § 1448 .................................. 18

Del. Code Ann. tit. 11, § 1448A ............................... 13

Del. Code Ann. tit. 11, § 1448B ............................... 13

Del. Code Ann. tit. 11, § 1459A ......................... 12, 13

D.C. Code § 7-2504.08 .............................................. 13

D.C. Code § 7-2505.01 ........................................ 12, 13

D.C. Code § 7-2505.02 .............................................. 13

D.C. Code § 22-4503 ................................................. 18

D.C. Code § 22-4514 ................................................. 12

Haw. Rev. Stat. Ann. § 134-10.2........................ 12, 13

Ind. Code § 35-47-2-18 ............................................. 11

Md. Code Ann., Pub. Safety § 5-703 .................. 12, 13

Mass. Gen. Laws ch. 269, § 11E ........................ 12, 13

Minn. Stat. Ann. § 609.667 ...................................... 12

Mont. Code Ann. § 45-6-326 .................................... 11

Neb. Rev. Stat. § 28-1207......................................... 11

Neb. Rev. Stat. § 28-1208......................................... 11

Nev. Rev. Stat. Ann. § 202.360 ................................ 18

Nev. Rev. Stat. Ann. § 202.363 ................................ 12

Nev. Rev. Stat. Ann. § 202.364 ................................ 13

Nev. Rev. Stat. Ann. § 202.3625 .............................. 13

Nev. Rev. Stat. Ann. § 202.3635 .............................. 12

N.J. Stat. Ann. § 2C:39-3 ......................................... 12

N.J. Stat. Ann. § 2C:39-9 ................................... 12, 13

N.J. Stat. Ann. § 2C:58-2 ......................................... 13

N.J. Stat. Ann. § 2C:58-3 ......................................... 18

N.Y. Penal Law § 265.01 .......................................... 12

N.Y. Penal Law § 265.07 .......................................... 13

N.Y. Penal Law § 265.60 .......................................... 13

Or. Rev. Stat. § 166.250 ........................................... 12

R.I. Gen. Laws Ann. § 11-47-2 ................................. 12

R.I. Gen. Laws Ann. § 11-47-8 ........................... 12, 13

R.I. Gen. Laws Ann. § 11-47-40 ............................... 13

S.D. Codified Laws § 22-14-5 ................................... 11

Tex. Penal Code Ann. § 31.11 .................................. 11

Wash. Rev. Code Ann. § 9.41 ............................. 12, 13

Wash. Rev. Code Ann. § 9.41.092 ............................ 13

Wash. Rev. Code Ann. § 9.41.111 ............................ 13

Wash. Rev. Code Ann. § 9.41.113 ............................ 13

Newspaper and Media Reports

Andrew Blankstein & Eric Leonard, Ex-con

who killed California cop used homemade

‘ghost gun,’ NBC News (Aug. 15, 2019),

https://nbcnews.to/3vLC09U .............................. 18

vii

Ryan Hill, ‘Ghost guns are everywhere’: San

Diego’s firefight continues to get ghost guns

off of the street, ABC 10 News (Feb. 19,

2022), https://tinyurl.com/3d9pkh8j ................... 14

Jeff Pegues, Rise in crime fueled in part by

‘ghost’ guns, ATF says, CBS News (Feb. 2,

2022), https://cbsn.ws/3NPmkbp ........................ 14

Stephanie Ramirez, Mother of Magruder

shooting victim sues school, county, Fox 5

Wash. D.C. (Dec. 1, 2022),

http://tinyurl.com/bdetpps6 ................................ 18

Brian Saunders, Philadelphia arrests

gunmaker as Biden regulates ghost guns,

Phila. Trib. (Apr. 11, 2022),

https://tinyurl.com/r2w5rvfm ............................. 14

Travis Taniguchi et al., The Proliferation of

Ghost Guns: Regulation Gaps and

Challenges for Law Enforcement (Nat’l

Police Found. 2021),

https://tinyurl.com/mry6vf78........................ 14, 15

Bill Whitaker, Ghost Guns: The

build-it-yourself firearms that skirt most

federal gun laws and are virtually

untraceable, CBS News (May 10, 2020),

https://cbsn.ws/3Li5zoM ..................................... 16

viii

Ovetta Wiggins, Baltimore plans to sue ‘ghost

gun’ part maker as state law takes effect,

Wash. Post (May 31, 2022),

https://wapo.st/3PXsrwU .................................... 14

Other Authorities

80% Lowers, Polymer80,

https://tinyurl.com/5n7b6uf8 .............................. 15

Cal. Dep’t of Just., Armed and Prohibited

Persons System Report 2021,

https://tinyurl.com/5ffwh2kd ........................ 15, 16

Cal. Dep’t of Just., Armed and Prohibited

Persons System Report 2022,

https://tinyurl.com/ytdyyxby ........................ 15, 16

CDC Provisional Data: Gun Suicides Reach

All-time High in 2022, Gun Homicides

Down Slightly from 2021, John Hopkins

Bloomberg Sch. of Pub. Health (July 27,

2023), http://tinyurl.com/knfbvnjk ....................... 2

Ari Davis et al., U.S. Gun Violence in 2021: An

Accounting of a Public Health Crisis

(John Hopkins Ctr. For Gun Violence

Sols. 2023) https://tinyurl.com/mszmmzdc .......... 2

Everytown for Gun Safety, Untraceable: The

Rising Specter of Ghost Guns (2020),

https://tinyurl.com/2at642rh .............................. 15

FNS – Lower Parts Kit, Complete Kits for a

Complete Build, JSDSupply,

https://tinyurl.com/yvhp94pw .......................... 5, 6

Int’l Ass’n of Chiefs of Police, 2018 Resolutions

(Nov. 2018), https://tinyurl.com/mrk3svww ...... 20

Stealth Arms Parts & Kits, JSDSupply,

https://tinyurl.com/yrna3m37............................. 15

U.S. Dep’t of Justice, Fact Sheet: Update on

Justice Department ’s Ongoing Efforts to

Tackle Gun Violence (June 14, 2023),

http://tinyurl.com/aevcx77t ................................ 14

Franklin E. Zimring, Firearms and Federal

Law: The Gun Control Act of 1968,

4 J. Legal Stud. 133 (1975) .............................. 6, 7

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

The District of Columbia and the States of New

Jersey and Pennsylvania, on behalf of themselves and

the States of Arizona, California, Connecticut,

Delaware,

Hawaii,

Illinois,

Maryland,

Massachusetts, Michigan, Minnesota, Nevada, New

York, North Carolina, Oregon, Rhode Island,

Vermont, Washington, and Wisconsin (collectively,

“Amici States”), file this brief as amici curiae in

support of the federal government’s petition for a writ

of certiorari.

Petitioners seek to defend a

commonsense regulation recognizing that weapon

parts kits and certain partially complete frames and

receivers are “firearms” under the federal Gun

Control Act of 1968 (“GCA” or “the Act”). See

Definition of “Frame or Receiver” and Identification

of Firearms, 87 Fed. Reg. 24652 (Apr. 26, 2022)

(codified at 27 C.F.R. pts. 447, 478, 479). Under

federal law, manufacturers and dealers must keep

records of, conduct background checks on, and

serialize such “firearms” to prevent them from falling

into the hands of children or criminals—and to allow

the weapons to be traced if they are used to commit

crimes.

18 U.S.C. §§ 922(t), 923(g), (i).

Those

requirements are crucial to preventing and solving

violent, firearm-related crimes. As protectors of

public safety and welfare, Amici States’ “dominant

interest” in “preventing violence . . . cannot be

questioned. It is a matter of genuine local concern.”

All counsel of record received timely notice of Amici

States’ intent to file this amicus brief under Rule 37(2).

United Auto., Aircraft & Agric. Implement Workers of

Am. v. Wis. Emp. Rels. Bd., 351 U.S. 266, 274 (1956).

In recent years, gun violence has skyrocketed

across the country. Gun-related homicides rose by 45

percent between 2019 and 2021, contributing to “the

largest two-year increase [in homicides] ever

recorded” by the Centers for Disease Control and

Prevention. Ari Davis et al., U.S. Gun Violence in

2021: An Accounting of a Public Health Crisis 7 (John

Hopkins Ctr. For Gun Violence Sols. 2023), https://ti

nyurl.com/mszmmzdc. 2 Concurrently, advances in

firearms technology have contributed to the rapid

proliferation of “ghost guns”: unserialized firearms

that can be built at home, including from easily

assembled weapon parts kits featuring partially

complete frames or receivers. Individual states have

worked diligently to protect their citizens from gun

violence and address this emerging threat. But there

is a natural limit to states’ abilities to combat a

nationwide problem that crosses state borders.

Absent federal enforcement, ghost guns have

continued to proliferate, including in the very states

that have been trying to keep them out.

Consistent with the GCA, the Final Rule at issue

in this litigation fills this gap in state-by-state

enforcement by expressly regulating weapon parts

kits and partially complete frames or receivers as

Preliminary data shows that this rate remains at a

record high with about 19,500 gun homicides recorded in 2022.

CDC Provisional Data: Gun Suicides Reach All-time High in

2022, Gun Homicides Down Slightly from 2021, John Hopkins

Bloomberg Sch. of Pub. Health (July 27, 2023),

http://tinyurl.com/knfbvnjk.

firearms. See 87 Fed. Reg. 24652. In doing so, it

advances the “twin goals” of the GCA: “to keep guns

out of the hands of criminals and others who should

not have them, and to assist law enforcement

authorities”—the bulk of whom operate at the state

and local level—“in investigating serious crimes.”

Abramski v. United States, 573 U.S. 169, 180 (2014).

Amici States thus have a strong interest in ensuring

that the Final Rule remains valid and effective in

complementing state efforts to keep ghost guns out of

the hands of violent criminals.

SUMMARY OF ARGUMENT

This Court’s review of the Fifth Circuit’s decision

is warranted in this important case, for several

reasons.

1. To begin, the court below erred by striking down

the Final Rule. The Final Rule plays a central role in

federal regulation of untraceable firearms and is

consistent with the text, history, and purposes of the

GCA. As the Final Rule recognizes, readily assembled

weapon parts kits and partially complete frames or

receivers are “firearms” under the statute’s plain text.

The history and context of the Act confirm this

commonsense interpretation. Congress engineered a

broad scheme to regulate the interstate flow of

firearms, and the Final Rule ensures that the Act and

similar state laws are not thwarted by developments

in gun technology. Put simply, the Final Rule

prevents

ghost

gun

manufacturers

from

“undermin[ing]” the GCA’s “core provisions.” Pet. 2021 (quoting Abramski, 573 U.S. at 179-80). This

Court has also emphasized the GCA’s anticircumvention purpose when interpreting other

provisions of the statute, explaining that the scheme

only works if there is “substance” behind its terms,

not just “empty formalities.” Abramski, 573 U.S. at

180. The Final Rule ensures that weapon parts kits

do not circumvent the Act’s provisions.

2. The Final Rule’s protections are a matter of

national importance, and allowing the Fifth Circuit’s

decision to stand would severely harm Amici States

and their residents. The Final Rule is a vital backstop

to states’ efforts to stem the flow of ghost guns and

combat the violence engendered by prohibited persons

possessing untraceable weapons. In response to the

recent influx of ghost guns, at least 16 jurisdictions

have enacted their own laws regulating weapon parts

kits and partially complete frames or receivers. But

absent federal enforcement, the number of

unserialized guns has nonetheless proliferated,

leaving in its wake a spike in crime and violence. The

Final Rule serves a vital coordinating function,

consistent with the GCA, that states cannot exercise

on their own. Striking down the Final Rule would

allow further proliferation of ghost guns, harming

public safety and stymying law enforcement.

ARGUMENT

The Final Rule Fits Squarely Within

The GCA’s Comprehensive Scheme.

The Fifth Circuit’s ruling, which would invalidate

key portions of the Final Rule, is sufficiently

important to warrant this Court’s review.

See

VanDerStok v. Garland, 86 F.4th 179, 196 (5th Cir.

2023) (“hold[ing] unlawful the two challenged

portions of the Final Rule as improper expansions of

ATF’s statutory authority”). Among other things, the

Fifth Circuit misconstrued the GCA and erroneously

invalidated the ATF’s regulation, which is faithful to

the GCA’s text.

Further, the Fifth Circuit

disregarded the history and purpose of the Act, which

is critical to interpreting the Final Rule. Additionally,

this Court has previously emphasized the GCA’s anticircumvention purpose when interpreting the Act.

The Final Rule is necessary to ensure that weapon

parts kits are subject to the same reporting and

tracking requirements as more conventional

firearms.

A. The Final Rule is consistent with the text,

history, and purpose of the GCA.

Under a plain reading of the GCA, easy-toassemble weapon parts kits and partially complete

frames or receivers fall within the statutory definition

of “firearm.” See Pet. 14-21. Both are “designed

to . . . expel a projectile by the action of an explosive,”

and “may readily be converted” to do just that. 18

U.S.C. § 921(a)(3). As the ATF recognized, the text

focuses on a weapon’s proximity to full functionality

and not on its immediate ability to fire a projectile.

87 Fed. Reg. at 24685; see 18 U.S.C. § 921(a)(3)

(defining a “firearm” to include a “starter gun,” which

is filled with blanks but can readily be converted to

fire an explosive). Weapon parts kits similarly meet

that proximity threshold because they are, by design,

easy to convert into a fully functional firearm—and in

fact, they are consistently marketed as practical

substitutes for conventional weapons. See, e.g., FNS

– Lower Parts Kit, Complete Kits for a Complete Build,

JSDSupply,

https://tinyurl.com/yvhp94pw

(last

visited Mar. 6, 2024) (describing kits as essentially

“fully functional firearm[s] without the hurdles of a

background check or government fees”).

This interpretation is reinforced by the GCA’s

history and context as an effort to end “mail order

murder.” H.R. Rep. No. 90-1577, at 19, as reprinted

in 1968 U.S.C.C.A.N 4410, at *4425. At the time the

Act was passed, Congress and the public were reeling

from the high-profile murders of President John F.

Kennedy, Martin Luther King, Jr., and Robert F.

Kennedy, whose deaths focused attention on mailorder guns and helped pressure Congress to act. See

Franklin E. Zimring, Firearms and Federal Law: The

Gun Control Act of 1968, 4 J. Legal Stud. 133, 147-48

(1975). Congress thus passed the GCA to curb easy

access to these weapons and solve the “interstate mail

order gun problem.” Id. at 145 (citing an unpublished

report from Senator Thomas Dodd). The GCA must

be read in light of that context and overall scheme.

See FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 133 (2000). That means adopting a

commonsense, functional understanding of “firearm”

that considers proximity to full use and recognizes the

crucial anti-circumvention role that the GCA was

designed to play.

The Final Rule’s regulation of readily assembled

weapon parts kits and partially complete frames or

receivers fits within the GCA’s purpose of closing the

gaps that led to widespread interstate trafficking of

firearms to unknown individuals, despite state laws

intended to prevent those problems. In the same way

that mail-order guns previously enabled “criminals,

immature juveniles, and other irresponsible persons”

to obtain firearms when “they could not purchase

guns under the laws in their own jurisdictions,”

Zimring, supra at 145, today’s unregulated supply of

unserialized gun parts lets people evade the gun laws

of their states. This modern incarnation of the mailorder gun problem undermines the purposes of the

GCA: to “control the indiscriminate flow of [guns]

across State borders” and to “[e]nsure that strong

local or State laws are not subverted by a deadly

interstate traffic in firearms.” H.R. Rep. No. 90-1577,

at 8, 19 (1968), as reprinted in 1968

U.S.C.C.A.N 4410, at *4413, *4425.

For example, according to a House Judiciary

Committee Report, Congress banned the “interstate

mail-order shipments of firearms . . . so that State

and local authorities may better exercise the controls

they deem desirable over . . . such firearms.” H.R.

Rep. No. 90-1577, at 12 (1968), as reprinted in 1968

U.S.C.C.A.N 4410, at *4418 (emphasis added)

(explaining the purpose of 18 U.S.C. § 922(a)(2)).

Legislators also banned licensees from selling to

persons barred from gun ownership in the state where

the licensee does business—as well as to those whom

the licensee believes do not reside in that state—to

close a loophole allowing individuals to avoid “State

and local laws controlling firearms by the simple

expediency of crossing a State line to purchase one.”

Id. at 14, as reprinted in 1968 U.S.C.C.A.N 4410, at

*4420 (emphasis added) (explaining the purpose of 18

U.S.C. § 922(b)(2)-(3)). The GCA was meant to protect

the integrity of state gun laws against interstate

circumvention—a task Congress correctly recognized

was uniquely suited for the federal government:

[C]ontrols on interstate gun traffic which only

the Federal Government can apply, and

without which no State gun law is worth the

paper it is written on[,] [are vital]. . . . Without

such Federal assistance, any State gun law

c[ould] be subverted by any child, fugitive, or

felon who orders a gun by mail or buys one in a

neighboring State which has lax gun laws.

114 Cong. Rec. 13647 (1968) (statement of Sen.

Joseph Tydings).

If the GCA was designed to solve a circumvention

problem presented by mail-order guns, then it must

also be read to solve an identical circumvention

problem presented by ghost guns.

This Court

interprets the GCA practically, focusing on

“substance” and not “empty formalities.” Abramski,

573 U.S. at 180. By updating the GCA’s critical

definitions to cover developments in firearms

technology, the Final Rule adheres to that guidance.

See infra Part II.C. As such, the Fifth Circuit erred

in holding that the ATF had exceeded its statutory

authority because the Final Rule is consistent with

the GCA’s text, history, and purpose.

B. The Final Rule advances the GCA’s

purpose in line with this Court’s prior

interpretation of the Act.

The Final Rule is also in line with the Court’s

precedent. This Court has previously held that the

GCA should be construed practically and in light of its

anti-circumvention purpose.

For example, in

Huddleston v. United States, 415 U.S. 814 (1974), the

Court held that Section 922(a)(6)’s prohibition on

“making false statements in connection with the

acquisition of a firearm” covered the redemption of a

firearm from a pawnshop.

Id. at 819.

After

examining the “aims and purposes of the Act,” “the

method Congress adopted to achieve those

objectives,” and the “statements of congressional

purpose,” the Court reasoned that exempting

pawnshop redemptions from the Act would let “every

evil Congress hoped to cure [to] continue unabated.”

Id. at 824, 828-29. Similarly, in Barrett v. United

States, 423 U.S. 212 (1976), the Court concluded that

the GCA covered the in-state purchase of a firearm

that had previously traveled interstate, as a contrary

ruling would create an untenable “gap in the statute’s

coverage” by “remov[ing] from the statute the most

usual transaction, namely, the felon’s purchase or

receipt from his local dealer.” Id. at 218, 221.

The Court followed a similar rationale in 2014 in

Abramski, when it held that the GCA’s prohibition on

false statements in connection with a firearms

purchase barred the use of so-called “straw

purchasers”: those who buy guns on behalf of others

while falsely claiming to be buying them for

themselves. 573 U.S. at 171-72. The Court explained

that the “overarching reason” for this conclusion was

to give effect to the Act’s provisions. Id. at 179. The

GCA had “establishe[d] an elaborate system to verify

a would-be gun purchaser’s identity and check on his

background,” and ignoring the problem posed by

straw purchasers would enable a “true buyer” to flout

those very provisions, thwarting the Act’s “twin

goals.” Id. at 180. The Court ultimately read the GCA

to give effect to its purpose: after all, “no part of [the

GCA’s] scheme would work if the statute turned a

blind eye to straw purchases—if, in other words, the

law addressed not the substance of a transaction, but

only empty formalities.” Id. at 180.

Overall, the Court’s interpretation of the GCA has

trended toward inclusion rather than exclusion, and

this case should adhere to this trend. Weapon parts

kits—like straw purchasers, pawn-shop redemptions,

and mail-order guns—similarly circumvent the Act’s

provisions. Just as those earlier incarnations enabled

a buyer to hide his identity and avoid detection, kits

let a buyer do the same by skirting background checks

and assembling an unserialized, fully functional

firearm. And unlike in Abramski, buyers of such kits

need not recruit a third-party intermediary but can

instead ship all the parts to their home and build the

weapon alone. This Court should thus follow its

previous guidance and interpret the Act practically to

give effect to its anti-circumvention rationales. In

fact, a contrary ruling—which would distinguish kitassembled guns from conventional ones, when the

only difference for the buyer is a few tools and some

labor—would elevate “empty formalities” over

“substance,” directly contravening this Court’s

guidance in Abramski to avoid “undermin[ing]—

indeed, for all important purposes, . . . virtually

repeal[ing]”—the Act’s provisions. 573 U.S. at 17980.

II. The Final Rule Complements State Efforts

To Regulate Unserialized Firearms.

Absent federal regulation, unserialized firearms

have flooded Amici States’ communities. Many of

these weapons end up in the hands of people banned

from gun ownership, directly undermining the GCA’s

core provisions as well as state law. See 87 Fed. Reg.

at 24657 n.20. At the same time, gun violence and

homicides have spiked in recent years. In response to

this influx, many states (including many Amici

States) have passed laws regulating weapon parts

kits and partially complete frames or receivers. The

Final Rule lends critical federal support to these

existing state efforts, protecting the public from

violent crime committed with ghost guns. 3

Invalidating the core of the Final Rule would diminish

the effectiveness of those state efforts.

A. At least sixteen jurisdictions, including

the District, have passed their own laws

regulating kits and other unserialized

firearms.

As the primary actors charged with “defining and

enforcing criminal laws,” states are responsible for

addressing the violence associated with weapon parts

kits and other firearms. Torres v. Lynch, 578 U.S.

452, 464 n.9 (2016) (internal quotation mark and

citation omitted). In light of the surge of kits and

unserialized guns, states have targeted the

possession, manufacture, and transfer of such

firearms, and have imposed detailed marking and

recordkeeping requirements on licensees.

At least 16 states directly regulate kits and other

unserialized parts. And at least 15 jurisdictions

A broad group of states has long recognized the problem

posed by unserialized guns, and many criminalize the removal

of a serial number from a firearm (or the possession of a firearm

so altered).

See, e.g., Ala. Code § 13A-11-64; Ind. Code

§ 35-47-2-18; Mont. Code Ann. § 45-6-326; Neb. Rev. Stat.

§§ 28-1207, -1208; S.D. Codified Laws § 22-14-5; Tex. Penal Code

Ann. § 31.11.

target the possession of unserialized firearms. Three

specifically define and target the possession of any

“ghost gun.”

See D.C. Code §§ 22-4514,

7-2501.01(9B); N.Y. Penal Law § 265.01(9)-(10); R.I.

Gen. Laws Ann. §§ 11-47-8(e), -2(8). Others do the

same, albeit using different language. 4 And at least

two states prohibit people who are otherwise banned

from owning guns from also possessing an

unserialized frame or receiver or similar component

part. See Conn. Gen. Stat. Ann. § 53-206j(f); Or. Rev.

Stat. § 166.250(1)(d).

At least nine states also target the ghost gun

manufacturing and assembly process. Connecticut

has adopted a detailed scheme for regulating selfmanufacturing—specifically, requiring someone to

apply for a unique serial number from the state,

engrave that number on the gun’s frame or receiver,

and pass a background check. See Conn. Gen. Stat.

Ann. § 53-206j.

Six other states prohibit the

manufacturing of an untraceable firearm or the

acquisition of certain component parts for the purpose

of building a firearm. See Cal. Penal Code §§ 16519,

16531, 30400; Colo. Rev. Stat. § 18-12-111.5(5)(a);

Haw. Rev. Stat. Ann. § 134-10.2; N.J. Stat. Ann.

§ 2C:39-9(k); 2023 Or. Laws Ch. 229 § 3(1)(a) (H.B.

See, e.g., Cal. Penal Code §§ 16519, 16531, 30400; Colo.

Rev. Stat. § 18-12-111.5; Del. Code Ann. tit. 11, § 1459A(b); Haw.

Rev. Stat. Ann. § 134-10.2; 720 Ill. Comp. Stat. Ann.

5/24-5.1(c), (d); Md. Code Ann., Pub. Safety § 5-703(b)(2); Minn.

Stat. Ann. § 609.667(3); Nev. Rev. Stat. Ann. § 202.363; N.J.

Stat. Ann. §§ 2C:39-9(k), 2C:39-3(n); 2023 Or. Laws Ch. 229

§ 3(2)(a) (H.B. 2005); Wash. Rev. Code Ann. § 9.41.

2005); Wash. Rev. Code Ann. § 9.41. The rest have

more generalized restrictions. 5

Many states also target the sale and

transportation of unserialized firearms and their

component parts. At least 14 jurisdictions criminalize

the sale or transfer of unserialized firearms and

partially complete frames or receivers, either

generally or when transferred to non-licensees or

prohibited persons. 6 And many states place detailed

restrictions on dealers at the point of sale, using

background checks, recordkeeping, and serialization

requirements. 7

B. Despite state efforts, the number of

unserialized

firearms

has

grown

exponentially.

Absent federal enforcement, however, states and

other localities (including those with laws targeting

ghost guns) have continued to see self-assembled,

See, e.g., Mass. Gen. Laws ch. 269, § 11E; Nev. Rev. Stat.

Ann. § 202.3635; R.I. Gen. Laws Ann. § 11-47-8(e).

See Cal. Penal Code § 30400; Colo. Rev. Stat. § 18-12111.5; Conn. Gen. Stat. Ann. § 29-36a(e); Del. Code Ann. tit. 11,

§ 1459A; D.C. Code §§ 7-2504.08(a), 7-2505.01 to .02; Haw. Rev.

Stat. § 134-10.2; 720 Ill. Comp. Stat. Ann. 5/24-5.1(b); Md. Code

Ann., Pub. Safety § 5-703(a)(1) to (2); Mass. Gen. Laws ch. 269,

§ 11E; Nev. Rev. Stat. Ann. §§ 202.3625, .364; N.J. Stat. Ann.

§ 2C:39-9(n); N.Y. Penal Law § 265.60-.64; 2023 Or. Laws Ch.

229 § 4(a)(1) (H.B. 2005); R.I. Gen. Laws Ann. § 11-47-8(e).

See, e.g., Cal. Penal Code §§ 29180, 29182; Colo. Rev.

Stat. § 18-12-111.5(7)(a); Del. Code Ann. tit. 11, §§ 1448A,

1448B, 1459A; 720 Ill. Comp. Stat. Ann. 5/24-5.1; Md. Code Ann.,

Pub. Safety § 5-703; Mass. Gen. Laws ch. 269, § 11E; Nev. Rev.

Stat. Ann. § 202.3625; N.J. Stat. Ann. § 2C:58-2; N.Y. Penal Law

§ 265.07; R.I. Gen. Laws Ann. § 11-47-40; Wash. Rev. Code Ann.

§ 9.41; Wash. Rev. Code Ann. §§ 9.41.092, .111, .113.

unserialized firearms flow into their communities.

For example, in 2018, six different police agencies

reported the following ghost gun recovery numbers:

San Diego (53), the District of Columbia (25), Chicago

(21), New York City (18), Philadelphia (17), and

Prince George’s County, Maryland (17). Travis

Taniguchi et al., The Proliferation of Ghost Guns:

Regulation Gaps and Challenges for Law Enforcement

15 (Nat’l Police Found. 2021) (hereinafter “NPF

Report”), https://tinyurl.com/mry6vf78. Three years

later, in 2021, those numbers skyrocketed—even in

states regulating ghost guns—with the same agencies

reporting ten- to thirty-fold increases: San Diego

(545), District of Columbia (439), Chicago (455), New

York City (225), Philadelphia (571), and Prince

George’s County (264). 8 Across the country, the story

is the same.

Federal recovery numbers for

unserialized guns have soared, jumping fifteen-fold

between 2016 and 2022. 87 Fed. Reg. at 24656; U.S.

Dep’t of Justice, Fact Sheet: Update on Justice

Department ’s Ongoing Efforts to Tackle Gun Violence

(June 14, 2023), http://tinyurl.com/aevcx77t .

See Ryan Hill, ‘Ghost guns are everywhere’: San Diego’s

firefight continues to get ghost guns off of the street, ABC 10 News

(Feb. 19, 2022), https://tinyurl.com/3d9pkh8j (San Diego); Data

on file with the Metropolitan Police Department (current as of

July 28, 2023) (District of Columbia); Jeff Pegues, Rise in crime

fueled in part by ‘ghost’ guns, ATF says, CBS News (Feb. 2, 2022),

https://cbsn.ws/3NPmkbp (Chicago and New York City); Brian

Saunders, Philadelphia arrests gunmaker as Biden regulates

ghost

guns,

Phila.

Trib.

(Apr.

11,

2022),

https://tinyurl.com/r2w5rvfm (Philadelphia); Ovetta Wiggins,

Baltimore plans to sue ‘ghost gun’ part maker as state law takes

effect, Wash. Post (May 31, 2022), https://wapo.st/3PXsrwU

(Prince George’s County).

The number of ghost gun sellers has also

ballooned, making these weapons increasingly

accessible. According to the ATF, when the Final

Rule was issued, there were about 129 companies

selling weapon parts kits or partially complete frames

or receivers. See 87 Fed. Reg. at 24718. These

companies operate in 27 states across the country.

NPF Report 2. And the number of ghost gun sellers

steadily increased for years before the Final Rule

went into effect—a phenomenon that tracks the

increasing spread of ghost guns nationwide. See

Everytown for Gun Safety, Untraceable: The Rising

Specter

Ghost

Guns

(2020),

https://tinyurl.com/2at642rh (finding 26 ghost gun

sellers in 2014 compared to 80 sellers by 2020).

Moreover, weapon parts kits are affordable and easy

to assemble, with some partial kits costing less than

$100 and requiring only basic tools and instructions

to build a functional firearm. Stealth Arms Parts &

Kits, JSDSupply, https://tinyurl.com/yrna3m37 (last

visited Mar. 6, 2024); see 80% Lowers, Polymer80,

https://tinyurl.com/5n7b6uf8 (last visited Mar. 6,

2024).

This combination of widespread access and federal

inaction has enabled individuals to circumvent state

gun laws and bring unserialized weapons into the

very states that have been trying to keep them out.

For example, even though California has attempted

to curb unserialized guns since at least 2016, as of

2019, these weapons accounted for nearly 30 percent

of all guns recovered in the state by the ATF. NPF

Report 5. Meanwhile, the number of unserialized

guns recovered by California law enforcement

agencies increased from 167 in 2016 to nearly 12,900

in 2022, a 77-fold increase. Cal. Dep’t of Just., Armed

and Prohibited Persons System Report 2021, at 26,

https://tinyurl.com/5ffwh2kd (last visited Mar. 6,

2024); Cal. Dep’t of Just., Armed and Prohibited

Persons

System

Report

2022,

25,

https://tinyurl.com/ytdyyxby (last visited Mar. 6,

2024). According to local authorities, that is because

guns are easily trafficked across the state’s borders.

See Bill Whitaker, Ghost Guns: The build-it-yourself

firearms that skirt most federal gun laws and are

virtually untraceable, CBS News (May 10, 2020),

https://cbsn.ws/3Li5zoM (interviewing the Los

Angeles County Sheriff). Similarly, New Jersey has

regulated unserialized firearms since at least 2018.

But at the same time, the state has seen large

increases in the number of ghost guns recovered at

crime scenes, from 55 guns in 2019 to 101 in 2020, 257

in 2021, and 428 in 2022 respectively. 9 More

troubling, nearly all ghost guns recovered in New

Jersey during that period were assembled from kits

manufactured out of state, and many were used to

commit violent crimes (including murder and

aggravated assault). 10

However, early evidence suggests that the Final

Rule is having its intended effect of promoting public

safety. For example, the most recent data from the

New Jersey State Police indicates that crime-gun

recoveries of privately made firearms (“PMFs”) in

New Jersey have declined since this Court allowed

Data on file with New Jersey State Police (current as of

Dec. 23, 2023).

Data on file with New Jersey State Police (current as of

Nov. 27, 2022).

the Final Rule to take effect in August 2023, 11 from

an average of 34.23 PMFs recovered per month from

January to July 2023, to an average of 18.80

recoveries from August to December 2023. 12 Further,

as of February 26, 2024, there were 26 PMFs

recovered in New Jersey for the first two months of

2024 as compared to 76 in the first two months of

2023. 13 Likewise, in the District of Columbia, ghost

gun recoveries fell from 524 in 2022 to 407 in 2023,

which was the first decrease in the past six years. 14

Finally, ghost gun recoveries in Philadelphia have

similarly plateaued since the Final Rule went into

effect with 575 PMFs recovered in 2022 and 526

PMFs recovered in 2023. 15 While this data is limited,

it is indicative of the real-world impact the Final Rule

is having and the critical public safety interests it

advances.

The Final Rule thus advances the GCA’s core aims

at a time when federal assistance is critical. Without

banning the sale of kits or self-manufactured guns,

the Final Rule ensures that states can at least trace

these weapons and that they are not bought by

criminals or children as a means of evading state law.

Garland v. Vanderstok, 144 S. Ct. 44 (Mem.) (2023).

Data on file with New Jersey State Police (current as of

Feb. 26, 2024). Note that recent data is subject to update and

may reflect lags in reporting.

Data on file with New Jersey State Police (current as of

Feb. 26, 2024).

Data on file with the Metropolitan Police Department

(current as of Feb. 22, 2024).

Data on file with the Pennsylvania Office of Attorney

General (current as of Feb. 28, 2024).

C. The Final Rule works to close the gaps

inherent in state-by-state enforcement.

The Final Rule addresses the problems that have

contributed to this alarming proliferation of

untraceable guns in multiple ways.

First, by

updating the regulatory definitions, the Final Rule

ensures that sellers run a background check on

potential purchasers before delivering a kit or nearly

complete frame or receiver. This makes it harder for

prohibited persons to acquire a gun and thus

safeguards the numerous federal and state laws that

exclude certain people from gun ownership. 16

Indeed, without meaningful federal oversight,

unserialized guns have increasingly fallen into the

hands of prohibited persons, with often deadly

results. In 2019, for example, a man with multiple

felony convictions used a self-made semi-automatic

rifle, assembled from parts, to kill one police officer

and injure two others. Andrew Blankstein & Eric

Leonard, Ex-con who killed California cop used

homemade ‘ghost gun,’ NBC News (Aug. 15, 2019),

https://nbcnews.to/3vLC09U. In 2022, a 15-year-old

boy was shot by another student in a school bathroom

with a ghost gun that was purchased online.

Stephanie Ramirez, Mother of Magruder shooting

victim sues school, county, Fox 5 Wash. D.C. (Dec. 1,

2022), http://tinyurl.com/bdetpps6. The data tell a

similar story. 17 By exerting the ATF’s authority over

See, e.g., 18 U.S.C. § 922(g); Del. Code Ann. tit. 11,

§ 1448; D.C. Code § 22-4503; Nev. Rev. Stat. Ann. § 202.360; N.J.

Stat. Ann. § 2C:58-3(c).

In New Jersey, nearly 40 percent of all people arrested

with a ghost gun from 2021 to mid-2022 had been banned from

kits and readily convertible frames or receivers, the

Final Rule helps keep these guns away from felons

and children, consistent with Congress’s intent. See

supra Section I.

Second, the Final Rule ensures that licensees

mark kits and nearly complete frames or receivers

with a unique serial number and keep records of all

relevant transactions. Tracing is a critical law

enforcement tool, and over 8,600 law enforcement

agencies across 46 countries rely on the ATF’s webbased tracing application. 87 Fed. Reg. at 24659. But

that service has less utility if a large number of

unserialized guns are untraceable because federal

and state record-keeping laws are not enforced. See

18 U.S.C. § 923(g); see also supra Part II.A. The

effective administration of justice will be thwarted if

prosecutors cannot trace guns and use such evidence

to enforce the Act’s provisions against straw

purchasers, firearms traffickers, and gun thieves. See

87 Fed. Reg. at 24660.

Third, the Final Rule may also help states apply

their own laws to avoid gaps that would allow ghost

guns to proliferate. State authorities often follow the

federal government’s lead when drafting or assessing

the scope of their own gun laws. See, e.g., Cal. Penal

Code § 16519 (defining a key term based on federal

gun regulations); Moore v. State, 983 A.2d 583, 595

gun ownership because of their criminal records. Data on file

with New Jersey State Police (current as of Nov. 29, 2022). In

Philadelphia, roughly half of the 478 people arrested in 2021 for

the possession or use of a ghost gun had been banned because of

disqualifying convictions, including violent felonies. Data on file

with the Pennsylvania Office of the Attorney General (current

as of May 17, 2022).

(Md. Ct. Spec. App. 2009) (explaining that the state

legislature enacted certain gun laws expecting they

would be read “consistent with federal law”). This

ripple effect makes the Final Rule even more critical

to state-level gun regulation, as it not only helps to fill

the gaps in enforcement described above, but also

helps states interpret or revise their own gun laws, in

keeping with Congress’s intent. See H.R. Rep. No. 901577, at 8, 12 (1968), as reprinted in 1968

U.S.C.C.A.N. 4410, at *4413, *4418.

***

The Final Rule stops a growing segment of the

modern gun industry from exploiting new technology

to widen the very gaps that the GCA sought to close.

It is no surprise that law enforcement “strongly

supports” efforts to treat ghost guns the same as other

firearms.

Int’l Ass’n of Chiefs of Police, 2018

Resolutions 15 (Nov. 2018), https://tinyurl.com/

mrk3svww.

The Final Rule makes crucial

clarifications to the GCA’s definitions and helps

states fulfill their “very highest duty” to safeguard the

lives and well-being of their citizens. United States v.

Cruikshank, 92 U.S. 542, 553 (1875). It falls squarely

within the GCA’s framework and is plainly valid.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MATTHEW J. PLATKIN

BRIAN L. SCHWALB

Attorney General for

Attorney General for the

New Jersey

District of Columbia

JEREMY FEIGENBAUM

CAROLINE S. VAN ZILE

Solicitor General

SAMUEL L. RUBINSTEIN

Counsel of Record

Deputy Attorney General

ASHWIN P. PHATAK

Office of the Attorney General Principal Deputy Solicitor

of New Jersey

General

25 Market St., P.O. Box 112 ELISSA R. LOWENTHAL

Trenton, NJ 08625

Assistant Attorney General

Office of the Attorney

MICHELLE HENRY

General for the

Attorney General for

District of Columbia

Pennsylvania

400 6th St., NW, Suite 8100

KIRSTEN HEINE

Washington, D.C. 20001

Chief Counsel to the

(202) 724-6609

Attorney General

ELIZABETH LESTER-ABDALLA

Deputy Attorney General

Office of the Attorney General

for the Commonwealth of

Pennsylvania

1600 Arch Street, Suite 300

Philadelphia, PA 19103

March 2024

caroline.vanzile@dc.gov

On behalf of:

KRISTIN K. MAYES

Attorney General

State of Arizona

ROB BONTA

Attorney General

State of California

WILLIAM TONG

Attorney General

State of Connecticut

KATHLEEN JENNINGS

Attorney General

State of Delaware

ANNE E. LOPEZ

Attorney General

State of Hawaii

KWAME RAOUL

Attorney General

State of Illinois

ANTHONY G. BROWN

Attorney General

State of Maryland

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

DANA NESSEL

Attorney General

State of Michigan

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

LETITIA JAMES

Attorney General

State of New York

JOSHUA H. STEIN

Attorney General

State of North Carolina

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

PETER F. NERONHA

Attorney General

State of Rhode Island

CHARITY R. CLARK

Attorney General

State of Vermont

ROBERT W. FERGUSON

Attorney General

State of Washington

JOSHUA L. KAUL

Attorney General

State of Wisconsin

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