Constitutional Woodchipper: The SCOTUS Preview

It's October, so you know what that means ... spooky season is finally here! And with it, the Supreme Court is back in session, complete with ghosts of the gun variety.

In this year's SCOTUS preview, we bring you the cases you need to know. The court will weigh in on a Biden administration rule to redefine firearms to address the public safety risk of ghost guns in America. We delve into the complexities and legal arguments that ignited a heated debate with gun manufacturers and the NRA over what truly constitutes a firearm.

The court will also hear about the death penalty case of Richard Glossip, who has faced the specter of execution nine times for a crime he claims he didn't commit. From the dubious testimony of the actual murderer to the systemic failures that have kept Glossip on death row, the case has led even unlikely proponents to question the mechanics of our justice system.

And we tackle Tennessee's controversial SB1 law, which bans gender-affirming care for transgender minors. This controversial legislation pits the state's focus on the experimental nature of such treatments against the medical community's endorsement of their necessity. This legal battle doesn't just impact Tennessee; it could reshape the landscape for transgender rights nationwide.

Special guests:

• Don Knight, Richard Glossip’s attorney
• Robert Dunham, director at the Death Penalty Policy Project and special counsel at Phillips Black
• Oklahoma state Representative Justin Humphrey
• Sasha Buchert, director of the Non-Binary and Transgender Rights Project at Lambda Legal
• Eric Tirschwell, executive director of Everytown Law
• Cody Wilson, director of Defense Distributed
• Kevin Tobia, a professor of law and philosophy at Georgetown
• Erin Erhardt, litigation counsel at the National Rifle Association

This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.

Editorial staff is Bill Dotinga, Sean Duffy and Jamie Ross.

Chapters

• 0:01 A Manifest Miscarriage of Justice
• 16:32 Discriminating Against Transgender People
• 30:27 These Are Still Firearms

Transcript

(Intro music)

Hillel Aron: Hello and welcome to Sidebar, a podcast from Courthouse News. I'm your host, Hillel Aron. 

Kelsey Reichmann: And I'm Kelsey Reichmann. 

HA: What are we talking about today, Kelsey? 

KR: Well, it's October and you know what that means. 

HA: Ghosts and goblins. 

KR: I was going to say a new Supreme Court term, although I can guarantee there will be ghosts, but first I've got something even spookier: Bipartisanship. There are always a handful of cases at the court that fall along ideological lines, but next term the justices will hear a case that made Oklahoma Republicans oppose the death penalty. 

HA: Huh, that's not something you see every day. 

KR: To be fair, this is not your average death penalty case. 

Don Knight: Rich Glossip has nearly been executed nine times. And these are not situations like maybe in California or some places, where you get an execution date, and everybody knows that there's not going to be any execution date. This is Oklahoma. Typically, you get one execution date and that's all they need. 

KR: That's Don Knight, Glossip's attorney. For almost a decade, Knight has worked to overturn Glossip's death sentence for the 1996 murder of Barry Van Treese. 

HA: So, Glossip claims that he himself didn't murder Van Treese. 

KR: Yes, but everyone already agrees on that. Justin Sneed pleaded guilty to killing Van Treese. He was convicted of first-degree murder, but he avoided the death penalty by testifying against Glossip, who was convicted on a murder-for-hire charge. 

HA: So, is this an innocence case? 

KR: Not exactly. Robert Dunham, the director at the Death Penalty Policy Project and special counsel at Phillips Black, said Glossip's case has elements of typical innocence appeals, except that Oklahoma also wants to overturn his conviction. What's standing in the way of Glossip's new trial are the courts. 

Robert Dunham: A person on death row is very likely innocent and might be executed. What most Americans would want is for the courts to look at the evidence and, if he's innocent, free him. If he received an unreliable trial and might be innocent, give him a new trial. Let him have a fair trial. They don't want courts inventing procedural rules that say you know what, we don't care if he's innocent. We're more interested in Byzantine legal procedures that could stop us from ever looking at his case. That's not what justice is. If somebody innocent might be killed, it is a manifest miscarriage of justice to invent a procedural obstacle to prevent the courts from reviewing his case. 

HA: Let's back up. How did we get here? 

KR: Kind of by accident. Glossip was supposed to be executed in 2015 after he lost his first Supreme Court appeal, challenging Oklahoma's drug execution protocol. Ironically, when Glossip's execution date arrived, the state bought the wrong drug. The governor wanted to move ahead with the execution anyway, but the attorney general stepped in to stop it. Now Glossip will go before the justices again, this time asking for a new trial. To understand why Glossip wants a new trial in the first place, however, we have to start with Sneed, because Knight said he was really the glue of prosecutors’ case. 

DK: All the parties understand Justin Sneed to be the one indispensable witness. Without Justin Sneed there would be no prosecution of Richard Glossip. 

KR: In both trials, Sneed was the only direct connection between Glossip and the crime. Glossip received a second trial after prevailing on an ineffective counsel claim. Sneed testified that Glossip hired him to murder Van Treese for money, but Knight said prosecutors' murder for renumeration theory falls apart pretty quickly. 

DK: When I started this case way back in 2015, just the sort of idea that Richard Glossip had all of the money that was alleged to have been stolen in his hands before his boss came to pick it up, gave it to his boss and then ordered Justin Sneed to kill that boss when the boss came back, so that Glossip could receive half of that money back didn't make any sense to me. 

KR: Knight started to investigate and found out that Sneed was a habitual methamphetamine user, and he needed money for drugs. When he was arrested, officers tried to turn Sneed against Glossip, suggesting to Sneed that Glossip planned the crime and wanted to pin it all on Sneed. Sneed eventually picked up the narrative. With new witnesses and documents, Glossip's innocence claims started to pick up, but not everyone was on board right away. Oklahoma State Representative Justin J. Humphrey, a Republican, wasn't eager to doubt Gossip's conviction, but one of his constituents asked him to look into the case. 

Justin Humphrey: I've got a law enforcement background and really didn't want to do that. My feelings were that, you know, most of the people on death row well, in fact, all the people on death row have had a number of appeals and a number of opportunities to put their case out in front of the court system, so I felt it was futile to do that. 

KR: Humphrey talked to Knight and started to see red flags. 

JH: And he mentioned the guy's attorney and I actually knew this attorney and I was like you know what that guy had, that attorney and that prosecutor, he was lucky he didn't get hung on the courthouse lawn. I said, “Just because I know he didn't get much of a defense, I'll look at the case.”

KR: In 2021, Humphrey and other lawmakers formed a committee to investigate Glossip's conviction, commissioning an independent investigation by international law firm Reed Smith. 

JH: One of the detectives that worked in this case actually signed an affidavit that he was instructed to destroy 10 key pieces of evidence. And when I found out that they actually instructed that investigator to destroy evidence, as a law enforcement officer, that enraged me. You know, I mean, I just couldn't even believe that here we are in a death penalty case and that they're purposely and intentionally destroying key evidence, that the DA's office is doing this. This is the people who've taken an oath, this is the top law enforcement people in our state, and for them to do that was just incomprehendable to me that they would do something like that. 

KR: Then, in 2023, Attorney General Gentner Drummond took office and discovered boxes of evidence the defense team had never seen, including notes from trial prosecutor Connie Smothermon. 

DK: It was apparent from those notes that Connie Smothermon knew at the time of the trial that when Justin Sneed was arrested in early 1997, he was suffering from a mental disease, a bipolar disorder diagnosis by a psychiatrist, a Dr. Trumka, in the county jail in Oklahoma where he was being held, and he was prescribed lithium for that psychiatric diagnosis. The notes reflected that Connie Smothermon knew about that. She never disclosed any of that to the defense at the time of his trial. 

KR: Sneed testified that his lithium prescription was for a cold. 

HA: How is the diagnosis connected to Glossip's argument? 

KR: The combination of Sneed's addiction and bipolar disorder could have made the jury question his credibility, but Glossip's attorneys were never able to cross-examine Sneed on his lie. 

HA: And by not telling the defense, Smothermon may have committed a Brady violation by withholding information that might help their case. 

KR: Yes, that's one of two arguments Glossip's lawyers will present to the justices. They say Smotherman had an obligation to turn over impeachable evidence to the defense. The argument relies on the court's 1959 ruling Napue v. Illinois, which held that prosecutors cannot knowingly use false testimony. The false testimony in this case would be Smothermon not correcting Sneed when he said he hadn't seen a psychiatrist. 

DK: Remember, prosecutors are there to seek justice, not to win cases, and it's obviously unjust to have a prosecutor say, “OK, well, one of my witnesses can lie and that lie can lead to a conviction and that's OK.” It's never OK. 

KR: Drummond called for another independent investigation, and the result convinced him that the state of Oklahoma didn't support Gossip's conviction anymore. So, Drummond let Glossip's appeal to the Oklahoma Court of Criminal Appeals go unopposed. 

HA: Is it common for an attorney general to back away from the state's conviction? 

KR: No, it's quite rare. 

DK: Attorney General Gentner Drummond has taken the very principled stand that when he sees wrong, he wants to make it right. He has seen wrong in this case. He could have simply said, “Ah, you know, the people in this state want finality. We're going to go ahead and do this thing,” you know. But he hasn't. He has taken the right stand. That's a brave stand for a politician in Oklahoma, and he deserves just a lot of credit for doing that. 

KR: Despite Drummond's bold move, the Oklahoma Court of Criminal Appeals rejected Glossip's petition, finding that the Oklahoma Post-Conviction Procedure Act limited the court's review. They said that even if Glossip's application met the procedural limitations of the law, the facts didn't constitute a Brady violation. Humphrey said he felt bitter outrage after the ruling. 

JH: We have destroying evidence, we have witness tampering, we have perjury, supporting perjury, we have withholding evidence. Any one of those by their self, you would think, would be sufficient for a new trial. And then you gotta put on top of that, for the first time ever to my knowledge, that we have an attorney general agreeing with us on all this. Based on all the evidence he's looked at, he's like, “Hey, this would warrant a new trial.” All of that sent to the appellate court and the appellate court unanimously decides to go ahead and proceed with the execution. 

KR: Humphrey is a self-described troublemaker. After the investigation, he called for an execution moratorium to address the misconduct in Glossip's case and others like his. It wasn't exactly popular with his colleagues. While Humphrey was able to pass it out of committee, lawmakers refused to hold a hearing on the moratorium. Humphrey said he's still pro-death penalty, but he just believes that Oklahoma needs to take a step back to fix the problems casting a shadow on the state's justice system. 

JH: When you're talking about executing people, when they will allow a person to continue to be executed, that they know that DAs in that case purposely destroyed key pieces of evidence, that they perjured their self, they supported perjury, and that they witness tampered and then withheld evidence. When you have that kind of gross misconduct and abuse of office going on, and my thing is, you violated the law so that you could execute somebody, and again, to me, that makes you guilty of attempted murder or possibly, if he is executed, that makes him guilty of murder. In my book, that's the way I view that. So, can I sit back and say we shouldn't do anything? Can I sit back and say I support a system that would allow that? No, I can't. I can't. I can't make that right. I can't square up with that. 

KR: Oklahoma County, where Glossip was prosecuted, is tied for the second most death row exonerations of any county in the U.S. In 2023, Oklahoma exonerated its 11th death row inmate. Six of those exonerations come from Oklahoma County. According to the Death Penalty Information Center, 616 capital convictions or death sentences have been overturned for prosecutorial misconduct. 

HA: Could the Supreme Court give Glossip a new trial? 

KR: The court could rule that the Oklahoma Criminal Court of Appeals got it wrong and send the case back to the district court for a new trial. Another option would be to send the case back to the district court for an evidentiary hearing. Sneed's bipolar diagnosis is just the tip of the iceberg in this case. There are questions about what Smothermon knew when Sneed suddenly changed his testimony to claim that he stabbed Van Treese before killing him with a baseball bat. Other memos detail contradictory testimony about the cash Glossip supposedly stole from Van Treese. 

HA: But the court could also reject Glossip's appeal. 

KR: It's possible that they don't even consider Glossip's arguments, deciding instead that the Supreme Court doesn't have jurisdiction to hear the case. The justices proposed their own question asking if the Oklahoma Court of Criminal Appeals ruling was based solely on state law. Since it's the highest court of criminal jurisdiction in Oklahoma, the justices may be limited in what they can review. Glossip's attorneys say the ruling applied the Oklahoma Post-Conviction Procedure Act directly from its understanding of the federal constitutional privileges in Brady and Napue, giving the Supreme Court jurisdiction to intervene. The Supreme Court not only added its own question to Glossip's appeal, but the justices also had to pick someone to argue against him. Here's Dunham from the Death Penalty Policy Project. 

RD: What is highly unusual is that, even after a concession that this conviction should be reversed, the Supreme Court changed the questions presented, added a question about whether there was a procedural bar that would allow them not to reach the question of unfair trial, and appointed an amicus to argue against the prosecutor and the defendant. That is highly unusual. You'll have Mr. Glossip's counsel arguing for relief, you'll have the attorney general's office arguing for relief and you'll have handpicked amicus appointed by the United States Supreme Court arguing against them. 

KR: Glossip wasn't available for an interview, but he has previously spoken about staying positive through his long legal fight. Here's Glossip speaking with Dr. Phil in 2021. 

Richard Glossip: I want to leave you with this. We all go through dark times, and most are difficult to handle, but we are stronger than we know. I am brought to the brink of execution on three occasions for something I had nothing to do with, but if the worst should happen, I do want you to know that good can come from the worst situations we face. Through all of this, I have gotten to meet some extraordinary people, those who stand up for what they believe in, fight for what is right, and who give so much of themselves for others. And even though I feel so blessed, I don't want this to be the end. So please stand up and fight with us. Your voices can and will make a difference. 

HA: We'll be right back after a quick break. 

Lily Radziemski: This is Lily Radziemski, and I'm the France correspondent for Courthouse News. I'm based in Marseille, which is the second largest city in France. I cover breaking news across France and mostly focus on political news and analysis, and it was a big summer for that in France. Ever since the president, Emmanuel Macron, announced that he'd be dissolving the government on June 9th, the country has been in a complete state of chaos. This happened on the night of the European elections, and I was working from the European Parliament in Brussels when Macron made the announcement, and stories from both of these events are available on the Courthouse News website. So, follow along at courthousenews.com or on my Twitter. My handle is @lilyradz, which is L-I-L-Y-R-A-D-Z. I mostly tweet about news in France, but I post sometimes some pictures of Marseille. Now back to Sidebar, a podcast from Courthouse News, and from the whole team at Courthouse News, thanks for listening to Sidebar. 

KR: OK, OK, our detour into bipartisanship was fun, but let's get back to more familiar grounds. 

HA: Maybe there's another decades-old precedent that most people have never heard of that's on the chopping block. 

KR: No, this one will be a strength test for one of the court's more recent rulings. Way, way back in 2020, the court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation. In Bostock v. Clayton County, Chief Justice John Roberts and Justice Neil Gorsuch joined their liberal colleagues, which then included Justices Stephen Breyer and Ruth Bader Ginsburg, to find that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees different because of their sex. Only four years later, Bostock is now at the center of litigation over transgender rights, particularly in this case, gender-affirming care. 

HA: So, the court here could overturn Bostock. 

KR: No, the question before the court asks if Tennessee's ban on gender-affirming care for transgender kids violates the Equal Protection Clause of the 14th Amendment. But if the court were to rule in favor of Tennessee's ban, it would significantly limit Bostock's reach. 

HA: All right, let's get our bearings here. Tell me about Tennessee's ban. 

KR: Last year, Tennessee adopted SB1, a law that prohibits health care providers from prescribing, administering or dispensing any puberty blocker or hormone if that treatment is provided to enable a minor to identify with or live as a purported identity inconsistent with the minor's sex. The law defines sex as reproductive characteristics at birth. Any violation of SB1 carries a $25,000 fine, professional discipline and potential civil liabilities in private suits. 

HA: And what kind of care is covered under the ban. 

KR: The term gender-affirming care has become a little bit of a catch-all, but this case deals with puberty blockers. As you might guess, these are medications that suppress puberty. When treating children with gender dysphoria, these medications can be used to stop puberty from advancing or induce puberty consistent with gender identity. Partisan politics has skewed many facts around gender dysphoria, but this is a formal diagnosis under the American Psychiatric Association's Diagnostic and Statistical Manual, where an individual feels incongruence between their gender identity and their sex assigned at birth. The American Academy of Pediatrics and the American Medical Association both support puberty blockers and hormone therapy for gender dysphoria. Sasha Buchert, director of the Non-Binary and Transgender Rights Project at Lambda Legal, said that while there is a perception that this care is novel, the same hormone treatments are given to non-transgender children. 

Sasha Buchert: It's shorthand for the treatments that have been provided and successfully provided that have made the difference in untold numbers of transgender people, you know, across the world. You know, we talk to families every day who flourish and really bloom and grow into who they are by being able to access care to eliminate and alleviate the horrific experiences and anxiety associated with gender dysphoria. It's just heartbreaking to see them have to scramble and try to figure out, you know, what they're going to do to make sure that their kid gets the care that they need. I've never heard anybody say, “Oh, you know, we're just going to stop providing this care that has, you know, helped our kid to become who they are.” 

KR: Lambda Legal represented the three transgender children, their parents and a doctor who filed the original lawsuit against Tennessee. 

HA: And does Tennessee's law ban puberty blockers for all minors? 

KR: No, which is why the Biden administration joined the lawsuit in support of the equal protection claims. The ban only prohibits care for transgender children. The government says that because a transgender boy cannot receive puberty blockers or estrogen, but an adolescent assigned female at birth can, Tennessee's ban discriminates based on sex. 

SB: The court in the Bostock decision made it clear that it's impossible to discriminate against transgender people without discriminating on the basis of sex. The state in this case tried to make the argument that, oh, no, we're not arguing, we’re not discriminating on the basis of sex, because this applies to everybody. But you know, the tax on yarmulkes is a tax on Jewish people and that's clearly what's happening here, you know, banning a specific kind of care that only transgender people can get is clearly discriminating against transgender people. 

KR: A lower court blocked SB1, finding that the ban could not stand up to heightened scrutiny because it was not substantially related to an important state interest. The court said that the law was also severely under-inclusive because it banned certain procedures for a tiny fraction of minors. However, a divided panel on the Sixth Circuit reversed, using a lower level of scrutiny. 

HA: Okay, how does Tennessee defend the ban? 

KR: Tennessee claims it has an interest in encouraging minors to appreciate their sex and in prohibiting treatments that might encourage minors to become disdainful of their sex. The state argues that the Constitution is neutral about legislative regulations of new and potentially irreversible medical treatments for minors. The state really zeroes in on the potential risks. Tennessee claims gender-affirming care treatments are experimental and not supported by high-quality long-term medical studies. The American Academy of Pediatrics and over 20 other medical groups refuted these claims, and they argue that the state's worries concerning the medical risks of hormone therapies are overblown and contradict existing research. 

HA: And how does the state square its ban with the Bostock decision? 

KR: The state says that Bostock was limited to Title VII. Buchert said an endorsement of that theory would be a huge break in precedent. 

SB: If you look at federal case law precedent, it's really clear that any federal non-discrimination law reads the prohibitions on the basis of sex consistently. You know there's not a break between how the Fair Housing Act interprets discriminations on the basis of sex, or the Affordable Care Act or the Department of Education, or how Title IX statute interprets discrimination on the basis of sex any differently than how it is interpreted under Title VII. 

HA: So, Tennessee wants the Supreme Court to uphold the Sixth Circuit's ruling. What does the Biden administration want? 

KR: The government wants a very narrow ruling that forces the Sixth Circuit to review Tennessee's ban under a higher level of scrutiny. The Biden administration doesn't want the justices to do that fact-finding at the case's current posture. Buchert warned that the consequences of upholding the Sixth Circuit ruling would reach far past Tennessee. 

SB: If the Supreme Court were to uphold this decision, I think it has serious consequences for sex discrimination doctrine at large, you know, with regard to how courts view these questions and if they're going to, you know, return us to a time when limiting the number of hours that women can work based on quote “endurable differences” is the kind of thing that we witnessed 50, 60 years ago, and I think that that's the kind of thing that's what heralded. 

HA: Now, Kelsey, you promised us ghosts, and so far, not a phantom in sight. 

KR: I would never break a promise, but I can't guarantee these are the ghosts you were thinking of. The 2024 term will include one of the justices' favorite topics: Guns, but this time of the spooky variety. In all seriousness, the justices will hear argument over the federal government's regulation of untraceable firearms made from kits and parts sold online, commonly called ghost guns. 

HA: So, another Second Amendment battle. 

KR: No, actually, contrary to many politicos commenting on firearms litigation, the legal question in Garland v. VanDerStok will be more like the bump stock case from last term. And yes, please hold your groans of discontent, because this is where I bring up the administrative state, otherwise known as the authority of the federal government to, well, govern. At the end of the last term, in Garland v. Cargill, the conservative majority said the Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly known as ATF, exceeded its authority by classifying bump stocks, which are add-on devices for semi-automatic weapons, as machine guns. For all the non-gun aficionados out there, machine guns have been heavily restricted since the 1930s because of their ability to automatically fire more than one shot with only one function of a trigger, without manual reloading. According to government estimates, adding a bump stock to a semi-automatic weapon allows the firearm to shoot around six times as many bullets per minute. The gunman who slaughtered 60 people and injured more than 850 others at a country music festival in Las Vegas in 2017 used a weapon equipped with a bump stock. The government tried to ban bump stocks, claiming that they enabled automatic fire like a machine gun, but Justice Clarence Thomas said the devices only reduced the time that elapses between separate functions of a trigger, so essentially, the mechanics of the devices exclude bump stocks from the definition of machine gun. While the opinion could have been mistaken for an instruction manual on semi-automatic firearms, the substance of the legal holding had more to do with regulatory authority. The conservative majority held that ATF incorrectly interpreted a statute enacted by Congress and therefore did not have the regulatory authority to ban bump stocks without additional action from lawmakers. In this way, the justices limited the power of the administrative state. 

HA: Now, the court delved into this topic during the last term, right? 

KR: Yes, you may have heard about that small ruling where the justices overturned four decades of precedent upholding the cogs of the federal government. It was a pretty big deal up until the conservative majority gave former presidents, particularly Donald Trump, broad immunity from criminal charges in a case about efforts to subvert the 2020 election results. But I digress. Like the bump stock case, the ghost gun case deals with agency interpretation of statutes. So, Congress passes the law, the president signs it and then federal agencies have to decide how to enforce any regulation. The Biden administration's ghost gun rule stems from ATF's interpretation of the Gun Control Act of 1968. 

HA: Pretend I was someone who didn't know what the Gun Control Act of 1968 was. 

KR: The law created requirements for anyone importing, manufacturing or dealing with firearms. The Gun Control Act forced any person doing business with guns to obtain a federal firearms license, keep records of the sale and transfer of firearms and conduct a background check before transferring a firearm to a non-licensee. Importers and manufacturers were also required to mark firearms with a serial number. Coincidentally, the law was enacted to combat mail-order guns. Eric Tirschwell, the executive director of the gun control group Everytown Law, said the impetus for the Gun Control Act is analogous to ATF's ghost gun rule. 

Eric Tirschwell: It's interesting to go back to, you know, one of the original animating drivers of the Gun Control Act was to put an end to mail-order guns. President Kennedy was assassinated with the rifle that was a mail-order gun and Congress wanted to put an end to that practice. And if you fast forward to the last few years and the rapid rise of this ghost gun industry, what it effectively is is the modern-day equivalent of mail-order guns. Here it's internet-order guns, right? The sale of these kits allowed anybody with a credit card and a computer to basically order a gun in a box that could be assembled at home. 

KR: Tirschwell said these weapons have become popular among criminals and teenagers because they don't require a background check. 

HA: So, because of the nontraditional nature of how ghost guns are sold, they can skirt the normal regulations, right? 

KR: Essentially, it's illegal for gun stores to sell unserialized weapons, but ATF tried to create a rule targeting a segment of legal ghost guns. Cody Wilson, the director of Defense Distributed, a defense contractor serving the general public, explained how privately made and built firearms fall outside of the Gun Control Act's regulations, at least until ATF's new rule came around. Defense Distributed is an intervenor plaintiff in the lawsuit against the government. 

Cody Wilson: You're given an unfinished frame and maybe some other components and fixturing, and what you, what do you do from the gun control point of view? You sidestep the Gun Control Act and the requirement to serialize because as a private person you are not regulated, you don't have a license and therefore you are not required to put numbers on those guns. And so, a number of guns entered interstate commerce from private makers because they weren't regulated. 

KR: Firearm parts, kits and easy to complete frames or receivers allowed anyone with basic tools to assemble a fully functional firearm quickly and easily. According to the government, one company, Polymer80, which is also an intervener plaintiff in the lawsuit, manufactures a buy-build-shoot kit that is marketed to assemble a fully functional Glock variant semi-automatic pistol in as little as 21 minutes. The Biden administration said police departments nationwide have seen an explosion of ghost guns in recent years. In 2017, law enforcement agencies submitted about 1,600 ghost guns to ATF for tracing, but in 2021, that number jumped to 19,000. That's an increase of over 1,000% in just four years. The accessibility of these weapons skirts safeguards against gun violence and crime. Tirschwell gave me examples of what can happen when minors access ghost guns. 

ET: Kids are doing what kids do, sometimes really reckless things with ghost guns and sometimes going out and committing intentional crimes with ghost guns. We brought a lawsuit arising out of the Saugus High School shooting in California a few years back, where a teenager got his hands on a ghost gun and went in and shot and killed a number of people and injured others. We have another case in Virginia where a teenager brought a ghost gun to essentially what was supposed to be a fist fight and ended up murdering two other teenagers. Sort of a whole range of horrific outcomes and not unpredictable, to the contrary, entirely foreseeable horrific outcomes if you're selling guns to teenagers who are prohibited by law from having them. It's why they're prohibited by law from having them. 

KR: Because of their lack of serial numbers, ATF has struggled to trace these weapons. Of the over 45,000 unserialized firearms submitted to the agency from 2016 to 2021, ATF was only able to complete about 445 traces to individual purchasers, giving them a success rate of less than 1%, and tracing is really important for law enforcement. 

ET: So, being able to trace the gun back to its original purchaser and then to go forward from there to see if and how the gun changed hands can often lead law enforcement to be able to identify shooters and others who commit crimes with guns. That's why all firearms are required to have serial numbers for a long, long time. It's absolutely essential for law enforcement and it's why the explosion of ghost guns, unserialized firearms, has presented such a challenge to law enforcement and has had a very significant impact on public safety, where they became, for many years, really the weapon of choice for criminals and for people who could not otherwise lawfully acquire a firearm. 

HA: So, now the government wants to limit unserialized weapons, skirting the Gun Control Act. 

KR: Yes. In 2021, the Biden administration proposed a new rule that would update the definition of firearm to include a more comprehensive definition of frame or receiver. Wilson described the rule as a reaction to more private people making guns, a segment of weapons that had never been regulated. 

CW: And ATF had to stretch to do that, because ATF, especially as a federal agency, can only regulate interstate commerce or regulated businesses, people in the business. 

KR: Under the rule, a firearm is any weapon designed to or that may readily be completed, assembled, restored or otherwise converted into a functional firearm, including certain weapon parts kits. It's a little bit of a word salad, but that's statutory interpretation for you. Solicitor General Elizabeth Prelogar compared gun parts kits to IKEA furniture to explain the government's position. Kevin Tobia, a professor of law and philosophy at Georgetown, explained her analogy. 

Kevin Tobia: If you buy a table from IKEA, it comes to you unassembled. We nevertheless are completely comfortable to call that a table. It requires some assembly, right, in the same way that a gun parts kit that you buy unassembled doesn't mean it's not a firearm, it's just an unassembled firearm.

KR: So, the first question is whether a frame or receiver kit falls under the definition of a firearm, but there's more. Then the justices must decide if an incomplete frame or receiver within the kit also falls under the definition. 

KT: The second question that the court is considering is what if you have a frame or receiver that is not completely finished, so it's been kind of manufactured 80% of the way, but someone who purchased it has to drill a couple holes in it to finish it, to make it operable, does that qualify as a frame and a receiver that everyone agrees is statutorily defined as a firearm? In other contexts, we're comfortable calling unsharpened pencils that you buy from the store pencils, even though you have to also buy a pencil sharpener and manually sharpen the pencil, right? So, in lots of different contexts we're comfortable calling unfinished, incomplete members by the kind of broader category name, right. Those are still pencils, those are still tables, these are still firearms. 

HA: All right. What are the gunmakers saying? 

KR: They say if the parts kit has to be converted into a frame or receiver, then it's not naturally included within the ordinary definition of those words. Essentially, if it's not a frame or receiver, it's not a frame or receiver. The National Rifle Association submitted an amicus brief in support of the gun manufacturers. Erin Erhardt, litigation counsel at the NRA, said the fine line may sound petty, but there is a difference between the two. 

Erin Erhardt: If you're getting parts and you're putting it together yourself and you're customizing it and you are putting in like machining work or drilling holes and stuff to put it together, versus if you buy all the pieces ready-made and it's just plug and play like a Lego set, essentially. Like, I bought firearms before, like a shotgun that comes in two or three pieces, because you know shotguns are long and you want the box to be smaller, but I wouldn't say that's not a firearm just because the barrel wasn't attached to the frame. When you're getting the pieces and then you're kind of customizing it and it's not just out of the box, follow these four steps and you're putting it together, it is more complicated than that. 

KR: The basic argument from gun manufacturers is that the Biden administration unlawfully extended the Gun Control Act without congressional legislation. 

HA: All right. How are the justices going to make a decision? 

KR: You may want to grab a dictionary. The key is who has the better reading of the law. Tobia and his fellow professors submitted an amicus brief in favor of the rule, with linguistic analysis to assist the justices. 

KT: We conducted a survey of American people. We had a balanced sample in terms of politics, Democrats and Republicans, and we gave them descriptions of these firearm parts kits and then asked them is this a firearm or not? But the majority of people said they would understand these as firearms, these firearm parts kits. And so, when the court appeals to the ordinary meaning or how an ordinary speaker of English would evaluate the term firearm, we think that that's pretty important evidence. 

KR: Tobias said it wasn't just survey respondents who considered the parts kits as firearms. 

KT: So, we look at the websites of some of the big sellers of these gun parts kits and how they describe the kits that they're selling, as well as how some of the customers on those websites review the gun parts kits that they're buying. I found this quite striking that in many of those cases, like, both the sellers and the buyers refer to the parts kits as firearms. 

HA: If the ghost gun case is similar to the bump stock case from last term, does that mean the justices are going to rule the same way? 

KR: Not necessarily. The cases are more cousins than twins. Tirschwell said Everytown was hopeful that the court would uphold the rule. 

ET: Yeah, I don't think Cargill tells us anything about what the outcome is or should be in VanDerStok, and the reason is the two cases are interpreting separate sections of federal law, different statutory language, and so the one really has just about nothing to do with the other. 

KR: But, as we've come to know all too well, the justices sometimes like to surprise us. Tobias said he'd be watching to see how closely the court hews to its stated preference for textualism. After all, we're all textualists now, right? 

KT: If the court is kind of good textualist, the answer is, like, much more straightforward. I think there's a lot less room here to kind of disagree about the language than there was actually in Garland versus Cargill, and so, you know, I think kind of like the real test those justices who claim to decide these cases not based on politics but based on the text of the statute is when you've got test cases where the language leads to a non-conservative result, will they follow it? 

HA: All right, Kelsey. Anything else you'd like to herald before we wrap things up? 

KR: Well, we've covered three of the around 80-ish cases that the court will hear over the next nine months. The justices will also decide if the FDA can ban certain flavors of e-cigarettes, if it's unconstitutional to require age verification on porn websites and an old favorite, whether the EPA can restrict water pollution. 

HA: Well, thank you, Kelsey, for that stellar preview of the 2024 SCOTUS term, and thank you, listener, for making it all the way through the episode. Please take some time out of your day to rate and review our humble podcast. Follow us on X if you're so inclined. That's @SidebarCNS, and of course, you can find all of Kelsey's Supreme Court coverage at courthousenews.com. On the next episode of Sidebar: It was the trial of the century, the 19th century. On a late morning in August 1892, a married couple in Fall River, Massachusetts, were brutally murdered with an axe. A week later, police arrested their 32-year-old daughter, Lizzie Borden, whose name would become virtually synonymous with patricide. We'll take you through the trial, what the jury thought, what the newspapers wrote, and we'll answer that burning question: Was the nursery rhyme right? Did Lizzie Borden really kill her parents with 81 whacks? 

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