With Halloween just around the corner, anti-gun groups, federal bureaucrats and big-city mayors would have you believe that the scariest thing on the streets today are so-called “ghost guns,” meaning home-made firearms. What they won’t mention in their talking points, however, is the four centuries of historical lore surrounding the practice and the lack of authority that regulators have to ban these weapons without action from Congress.

Consequently, attempts to regulate homemade firearms, despite these facts, are far scarier and, frankly, more dangerous to our republican system of government than any gun on the street.

It all started in 2022, when the agency charged with regulating firearms issued a new rule to regulate firearm parts kits. Driven largely by anti-gunners’ dismay that non-serialized firearms could become the norm, President Joe Biden and Vice President Kamala Harris sidestepped Congress and pushed through the ban. But one problem persisted: The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacked the legal authority to initiate such regulation.

Today, the problem is in the hands of the Supreme Courtafter the Harris-Biden administration lost twice in the lower courts.

Earlier this month, I made the case before the judges that this rule would turn many Americans—like our client, former law enforcement officer Jennifer VanDerStok—into first-time criminals because they make their own firearms at home.

Unfortunately, the battle in the court of public opinion doesn’t quite map to the battle in the courtroom. Whether the Harris-Biden ATF is allowed to expansively reinterpret its own power is a different question than whether selling parts kits is a good or bad thing in the abstract. And the federal government has intentionally and fully adopted the pejorative term “ghost guns” for the types of homemade firearms that hobbyists create only after extensive milling, drilling, and other efforts.

As is customary, the judges of the Supreme Court he asked a lot of questions of both lawyers in front of them. Justice Samuel Alito, for example, asked if a pen and a notepad were just like a shopping list, given that the two items were just separate precursors to the list itself. And in another example, he asked if eggs, ham, peppers and onions were considered Western omelettes, even before they were cooked. Judge Brett Kavanaugh expressed concern that the ATF is criminalizing people who only possessed something that was legal for decades before 2022.

But others were not so skeptical about the government’s power to define itself in a new regulatory authority. Judge Amy Coney Barrett, for example, he seemed to suggest that maybe the ingredients for the Western Omelet would count as a complete meal if it came in a Hello Fresh package. And Justice Sonia Sotomayor, for her part, seemed to think it was clear that the ATF could exercise its authority to regulate parts kits.

She noted that Congress gave the ATF authority over starting guns, such as those used to start foot races. If the ATF has authority over them, surely, she suggested, it must have authority over unfinished parts kits.

The attorney general of the United States, the federal government’s chief lawyer, appeared to emphasize not so much the legal issues in the case as the purported practical result of an affirmative decision by the lower courts. In her rebuttal, she suggested that every gun in the United States could become a “ghost gun” if the justices ruled against it — and that criminals were buying homemade kits to avoid police detection. But remember that was the case in 2022? Hard.

The attorney general also tried to make an argument that criminals use homemade firearms because they usually don’t have serial numbers. Once again, this is not really a legal argument, but a policy argument that is best addressed by Congress. In any case, the claim is factually dubious. The truth is that criminals are exponentially more likely to use a stolen firearm or a purchased firearm on a regular basis and simply grind the serial number.

This is probably because homemade firearms take both skill and time to make. Of course, it is impossible to read the “tea leaves” of the judges’ questions in the oral arguments. Indeed, in many cases, judges may ask questions that appear to be probing or even aggressive to a lawyer in order to give the lawyer the opportunity to persuade colleagues who are on the fence. We probably won’t know result of VanDerStok until early 2025, when the court issues its opinion.

But in this context, a danger is that the case metastasizes into an argument about whether homemade firearms are good or bad as a matter of policy. The truth is that Americans, before 2022, always had the right to create their own firearms in their basements if they so chose.

But even leaving that aside, the question of “who decides” is one that is fundamental to our structure of government. Congress makes the laws, not Vice President Kamala Harris, President Joe Biden, or their loyal bureaucrats who run federal agencies.

Nothing is scarier than upsetting that delicate balance.

William E. Trachman is the general counsel of the Mountain States Legal Foundation and former deputy assistant secretary for civil rights in the U.S. Department of Education. Michael McCoy is the director of the Mountain States Legal Foundation’s Center for Gun Storage and Carrying and a former federal prosecutor.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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