A federal judge in Texas has reopened the legal battle over the federal government’s regulation of so-called “ghost guns,” ruling that key portions of a Biden-era rule violate both the Second Amendment and the Fifth Amendment’s guarantee of due process.

The decision may sound like a direct rejection of the Supreme Court’s 2025 ruling upholding the regulation, but the two courts addressed different questions. The Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives had statutory authority under the Gun Control Act of 1968 to regulate at least some weapon-parts kits and unfinished frames or receivers. It expressly didn’t decide whether the rule violated the Constitution.

Chief U.S. District Judge Reed O’Connor has now reached those constitutional issues. As The Hill reported, he concluded that the rule infringes the right to make or repair personal firearms and is too vague to give gun owners and manufacturers fair notice of what the law requires.

The ruling is important, but its immediate scope is limited. It doesn’t erase the regulation nationwide. The court declared the disputed provisions unenforceable against Defense Distributed, the Second Amendment Foundation, and the foundation’s current and future members. Its permanent injunction specifically protects certain Defense Distributed products. Everyone else remains subject to the rule unless another court expands the decision or an appellate court establishes broader precedent.

Why the Judge May Have Hit the Mark

The Right to Possess Includes the Right to Obtain or Make

The strongest Second Amendment argument supporting the ruling begins with a fairly basic proposition: a constitutional right to keep a firearm must include some practical ability to acquire, maintain, repair, or construct one.

A government could technically claim that citizens remain free to “keep” firearms while regulating every component, tool, transaction, and manufacturing process needed to obtain one. At some point, however, a right preserved only in the abstract isn’t much of a right. Constitutional guarantees can’t be reduced to museum exhibits, admired behind glass but unavailable for actual use.

The plaintiffs argued that the ATF rule burdens this protected conduct by treating certain incomplete components and parts kits as firearms. Once covered, commercial manufacturers and dealers become subject to federal licensing, marking, recordkeeping, and background-check requirements.

In his August 17 ruling, O’Connor noted that the parties didn’t appear to dispute that making or repairing a personal firearm falls within the Second Amendment’s protection. That shifted the burden to the government to show that its regulation was consistent with the nation’s historical tradition of firearm regulation.

America’s Tradition of Personal Gunsmithing

The historical record cited by the court supports the argument that personal gunsmithing isn’t some loophole invented by online retailers last Tuesday.

Early Americans frequently repaired, modified, and sometimes built firearms for personal use. Firearms were essential for hunting, defense, militia service, and survival, particularly when professional gunsmiths and commercially manufactured weapons weren’t always readily available. During the Revolutionary era, the colonies actively encouraged firearm production, and many Americans practiced gunsmithing as either an occupation or a secondary trade.

According to the historical evidence presented to the court, the private manufacture of firearms for personal use wasn’t generally prohibited during the 17th, 18th, or 19th centuries. Supporters of the decision therefore argue that a modern rule burdening access to unfinished components runs against a deeply rooted tradition that existed when the Second Amendment was adopted.

That history doesn’t necessarily prove that every modern kit must be completely unregulated. It does, however, place the burden on the government to identify a sufficiently comparable historical restriction.

The Government’s Historical Examples May Not Be Close Enough

The government pointed to early laws requiring gun barrels to be inspected, tested, or marked to verify their safety. It also cited regulations governing the inspection, storage, and transportation of gunpowder.

O’Connor found those laws insufficiently analogous. Barrel-proofing requirements were intended primarily to prevent defective firearms from injuring their users. Gunpowder laws addressed dangers such as accidental explosions, fires, unsafe storage, and inferior powder. The ghost-gun rule, by contrast, was principally designed to facilitate criminal investigations, impose background checks, and prevent prohibited people from obtaining easily completed firearms.

Under the Supreme Court’s history-and-tradition test, courts examine both how a historical law burdened firearms and why it imposed that burden. Supporters of O’Connor’s decision argue that marking a finished barrel to certify its safety is materially different from declaring an unfinished piece of polymer or metal to be a firearm because it might be converted into one.

The government’s examples demonstrate that firearms and related materials weren’t entirely beyond regulation. They don’t necessarily establish a tradition of regulating the private manufacture of firearms or the commercial sale of unfinished components in the manner chosen by ATF.

The Rule Doesn’t Establish a Clear Boundary

The Fifth Amendment argument may be even stronger.

The rule says that a partially complete frame, receiver, or parts kit can become a regulated firearm if it may “readily” be completed or converted. ATF considers factors such as the time, difficulty, expertise, equipment, additional parts, expense, amount of work, and feasibility involved.

That sounds detailed until someone has to determine whether a particular item crosses the legal line. The factors are nonexclusive, none is necessarily controlling, and the rule provides no fixed threshold for how much time, expertise, machining, or expense is too much. ATF can also consider instructions, jigs, templates, tools, and marketing materials associated with the product.

Consequently, an unfinished component could potentially change legal status based not only on its physical condition but also on what instructions, tools, or promotional materials accompany it. Supporters of the ruling argue that manufacturers and consumers shouldn’t have to perform an eight-factor regulatory séance to determine whether a piece of plastic has become a federal firearm.

That uncertainty matters because violations of federal firearms laws can carry criminal penalties. Due process requires the government to give ordinary people fair notice of what conduct is prohibited and to establish standards that limit arbitrary or inconsistent enforcement.

Congress, Not ATF, Should Draw the Line

Supporters also see the ruling as an important separation-of-powers decision.

Congress could establish an objective legal standard for commercially sold firearm kits. It could specify which components are covered, how complete they must be, what manufacturing steps remain, and when serialization or background checks become mandatory. Such legislation would be publicly debated, voted upon, and attributable to elected lawmakers.

Instead, ATF attempted to address technological changes by applying a flexible administrative standard. Even if the agency’s public-safety objective was legitimate, supporters argue that an agency can’t create a blurry criminal boundary merely because Congress hasn’t supplied a clearer one.

The court did rule for the government on the plaintiffs’ remaining Administrative Procedure Act claims, so O’Connor didn’t conclude that every aspect of ATF’s rulemaking process was unlawful. The concern is narrower: when constitutional rights and potential criminal liability are involved, the operative standard must tell people where lawful conduct ends and unlawful conduct begins.

Why the Judge May Have Missed the Mark

The Rule Regulates Sales, Not Home Gunsmithing

Opponents begin by challenging the ruling’s characterization of the regulation.

The rule doesn’t broadly prohibit Americans from making firearms for personal use. Nor does it require every privately manufactured firearm sitting in someone’s home to receive a serial number. Its central provisions treat certain commercially sold kits and nearly complete frames or receivers as firearms when they’re readily convertible into working guns.

Covered businesses must follow licensing, recordkeeping, serialization, and background-check rules similar to those governing other commercial firearm sales. The ATF describes the rule as an effort to ensure the proper marking, recordkeeping, and traceability of firearms handled by federal firearms licensees.

Opponents therefore argue that the rule doesn’t eliminate the ability to build a gun. It regulates how businesses sell products that are already close to becoming functional firearms. In their view, the Constitution doesn’t guarantee a right to purchase a nearly complete, commercially packaged pistol kit anonymously and without the requirements that apply when purchasing the same pistol fully assembled.

“Keep and Bear” Doesn’t Mean Unregulated Manufacture

The Second Amendment protects the right to “keep and bear arms,” but it doesn’t expressly mention manufacturing, selling, or purchasing firearm components.

Courts have recognized that certain activities necessary to exercise a constitutional right may receive derivative protection. Still, opponents argue that the judge moved too quickly from a right to possess firearms to a broad right to manufacture them without commercial regulation.

The government didn’t dispute in this stage of the case that making or repairing personal firearms was covered by the Second Amendment. Even so, critics contend that the relevant burden should have been defined more precisely. Requiring a commercial dealer to serialize a nearly completed receiver and conduct a background check isn’t the same as forbidding an individual from building or repairing a firearm.

The Supreme Court has also repeatedly indicated that the Second Amendment permits some conditions and qualifications on the commercial sale of firearms. Opponents see the ghost-gun rule as belonging within that historically accepted category.

Historical Analogues Don’t Have to Be Exact Copies

The Supreme Court has cautioned lower courts against demanding a perfect historical twin for every modern gun law. Legislatures in 1791 obviously didn’t regulate polymer pistol frames, computer-guided milling machines, or kits advertised through websites because none of those things existed.

Opponents argue that the relevant historical tradition should be understood at a broader level. Founding-era governments inspected firearms, marked gun barrels, regulated gunpowder, imposed rules on commercial sellers, and took measures intended to protect public safety. Those laws demonstrate that the production and commerce surrounding firearms were never categorically immune from regulation.

The reason for a modern law may also differ in its particulars because the underlying problem has changed. A regulation addressing mass-market kits that can be turned into working pistols in minutes need not have a word-for-word counterpart written with a quill pen.

From this perspective, the court defined the government’s historical burden too narrowly by insisting upon an earlier regulation directed specifically at the traceability of privately made firearms.

The Supreme Court Already Found That Some Kits Are Clearly Firearms

The vagueness ruling also faces a substantial objection from the Supreme Court’s 2025 decision.

In Bondi v. VanDerStok, the Supreme Court ruled 7–2 that the Gun Control Act permits ATF to regulate at least some weapon-parts kits and unfinished frames or receivers. Justice Neil Gorsuch’s majority opinion discussed a Polymer80 kit containing all the components needed for a pistol. An ATF tester with no previous experience assembled it in 21 minutes using common tools and publicly available instructions.

The Court acknowledged that some products may be too incomplete or difficult to assemble to qualify. But it concluded that other kits plainly fall within the statutory definition of a weapon that may “readily be converted” to fire a projectile.

Opponents of O’Connor’s ruling argue that if the Supreme Court could confidently determine that certain kits are covered, the standard can’t be hopelessly vague in every meaningful application. Flexible legal standards are common, and the rule’s factors—time, tools, skill, cost, and difficulty—may provide more guidance than many other statutes and regulations that courts routinely uphold.

They also note that the word “readily” comes directly from the Gun Control Act. ATF didn’t invent the concept; it attempted to explain how it would apply that statutory term to modern products.

Ghost Guns Create a Real Public-Safety and Law-Enforcement Problem

The policy concerns behind the rule aren’t imaginary. According to the Supreme Court’s summary of federal data, law-enforcement agencies submitted approximately 1,600 privately made firearms for tracing in 2017. By 2021, that number had risen to more than 19,000. Because the weapons generally lacked serial numbers and sales records, tracing them was frequently unsuccessful.

Such kits can also permit minors, people convicted of serious crimes, and others legally prohibited from possessing firearms to bypass background checks. Opponents of the ruling argue that treating a nearly complete pistol kit differently from the identical finished pistol elevates form over substance.

Although public-safety concerns can’t independently settle a constitutional question, they help explain why the government regards serialization and background checks as ordinary safeguards rather than an attack on lawful gunsmithing.

Critics are particularly concerned about relief extending to current and future Second Amendment Foundation members. If joining an organization effectively provides access to products otherwise subject to federal regulation, the ruling could create an unusually easy opt-in exception while litigation continues.

A Real Problem Doesn’t Justify a Regulatory Fog Bank

From my perspective, the judge reached a defensible—and mostly correct—result, although the Fifth Amendment reasoning is considerably stronger than some of the broader Second Amendment language.

The government has a legitimate responsibility to restrain wrongdoing and protect innocent life. Criminals obtaining untraceable firearms is a genuine problem, not a fever dream invented by gun-control advocates. A civilized society can use background checks, criminal penalties, and properly written regulations to keep weapons away from people who have demonstrated that they pose a serious danger.

But government authority must also be exercised justly, predictably, and within constitutional limits. A good intention doesn’t transform an elastic administrative standard into clear law. People shouldn’t face potential criminal liability because ATF decided, after weighing a nonexclusive collection of subjective factors, that their hunk of polymer crossed an invisible line sometime between “raw material” and “firearm.”

The Constitution doesn’t contain an exception for products carrying spooky nicknames. Calling something a “ghost gun” may be wonderfully effective political branding, but it doesn’t relieve the government of its duty to define the prohibited conduct. Constitutional analysis requires more than ominous terminology and a press conference.

At the same time, the ruling shouldn’t be exaggerated into a constitutional right to sell practically complete firearms anonymously to anyone with a credit card. The rule regulates commercial kits that can be turned into working guns with limited time and ordinary tools. Serialization and background checks aren’t equivalent to confiscation, and reasonable regulation of commercial firearm sales isn’t inherently incompatible with the Second Amendment.

The weakest part of O’Connor’s reasoning is the tendency to treat any regulation affecting access to components as an infringement upon home gunsmithing. The rule doesn’t ban people from building firearms, and courts reviewing the decision should distinguish genuine personal manufacture from the commercial sale of nearly complete, conveniently packaged weapons.

Nevertheless, when the government attaches criminal consequences to a regulatory definition, the boundary must be understandable before enforcement begins, not clarified afterward through a prosecution. On that point, the judge is right.

Congress should address the problem directly. It can write a narrow law establishing objective standards for commercially sold, nearly complete firearm kits, while expressly protecting legitimate personal manufacture, maintenance, and repair. Any such law would still need to survive Second Amendment review, but at least the people’s elected representatives would be drawing the line in public instead of leaving ATF to locate it somewhere inside an eight-factor fog machine.

We should be capable of protecting both public safety and constitutional liberty. If Washington insists that we must sacrifice one to preserve the other, that usually tells us more about Washington’s craftsmanship than about the Constitution.