In Ghost Guns and the Mischief Rule, legal scholar Samuel L. Bray explores how the mischief rule of statutory interpretation relates to Garland v. VanDerStok. Oral arguments for the case were held on October 8, 2024. The case centers on whether the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has statutory authority to regulate “ghost guns”—firearms made from “do-it-yourself” kits that evade serial number and background check requirements. Based on the oral arguments, Bray states that the Court appears inclined to side with the ATF.
Bray highlights the mischief rule’s two main functions: providing a stopping point (a term he borrows from Richard Re) and preventing evasion. The first, more common function is designed to ensure that the executive or the courts do not misapply old statutes to new issues. The second, rarer function allows courts or agencies to address attempts to circumvent the original purpose of a statute. In this case, the second function applies, as ghost gun kits represent an effort to evade laws designed to ensure firearm traceability through serial numbers and background checks.
The article explains that the anti-circumvention principle cited by Solicitor General Elizabeth Prelogar in oral arguments for Garland v. VanDerStok is well within the mischief rule and is a traditional principle of statutory interpretation. Elsewhere, in The Mischief Rule, Bray explores the dual functions of the rule in greater depth and emphasizes that the rule, while often misunderstood, raises broader interpretive questions about text, context, and ambiguity. He argues that it remains a valuable tool for textualists and purposivists alike—as it is in this case, where the agency’s interpretation seeks to uphold the original intent of a law against deliberate circumvention.