Polymer 80 unfinished gun frames on sale at the 2022 NRA Great American Outdoor Show
Polymer 80 unfinished gun frames on sale at the 2022 NRA Great American Outdoor Show / Stephen Gutowski

SCOTUS Again Intervenes to Keep Biden ‘Ghost Gun’ Ban in Place

The Supreme Court does not want the Biden Administration’s rule outlawing the unregulated sale of unfinished gun parts to be blocked while the case against it moves forward.

On Monday, the High Court issued an order vacating a lower court’s attempt to enjoin the ATF from enforcing the ban. It is the second time SCOTUS has sided with the federal government to intervene in the case on an emergency basis. The order means nobody can sell unfinished gun parts without a gun dealer license.

“The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted,” the Court wrote in Vanderstok v. Garland. “The September 14, 2023 order of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, is vacated.”

The order is the latest action by the High Court in a gun-related case. Despite denying several requests by gun-rights groups to take emergency action by issuing injunctions in other cases against AR-15 bans or gun-carry limitations, SCOTUS has twice intervened to stay rulings from the Fifth Circuit Court of Appeals against President Biden’s attempt to unilaterally ban the sale of unfinished and unserialized firearms parts. It has also agreed to hear a Department of Justice (DOJ) appeal in a case where the Fifth Circuit found the federal prohibition of gun ownership by people under domestic violence restraining orders unconstitutional.

The new decision comes after the Supreme Court issued an emergency order staying a Fifth Circuit’s panel ruling against the ban back in August. That stay kept the rule in place until the U.S. District Judge Reed O’Connor, who previously vacated it, issued a new injunction against it in September but limited that injunction to two gun companies and their customers. The DOJ then challenged the new injunction with the Fifth Circuit, arguing the district judge ignored the point of the Supreme Court’s stay. At the beginning of this month, the panel partly sided with the DOJ and ruled that customers couldn’t be protected under the injunction.

“We agree with the Government that the district court’s injunction sweeps too broadly,” the panel wrote in an unsigned opinion in VanderStock v. Garland. “Injunctions that afford relief to non-parties are potentially problematic. And it appears the district court’s injunction sweeps too broadly insofar as it affords relief to non-party customers.”

However, the panel upheld the injunction against the ATF enforcing the rule against 80 Percent Arms and Defense Distributed.

“The party-plaintiff manufacturers would be irreparably harmed by being forced to shut down their companies or by being arrested pending judicial review of the Final Rule,” the panel wrote.

The DOJ filed for another emergency intervention from the Supreme Court, and the Supreme Court again sided with the government. However, the Court did not explain its reasoning, and, unlike the initial stay, there were no noted dissents. The initial intervention was opposed by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. However, Chief Justice John Roberts and Justice Amy Coney Barrett joined Justices Sonya Sotomayor, Elana Kagan, and Ketanji Brown Jackson in granting it.

Gabriel Malor, a legal commentator and appellate litigator who practices in federal court, told The Reload in August that the initial decision merely reinforced how federal court cases usually work. He said it doesn’t necessarily reflect how the Court would come down on the case against the ban or whether it would agree to hear it at all.

“The order is consistent with prior practice. It should not be taken as an indication of where the justices stand on the merits,” Malor said. “As far as whether the Supreme Court will eventually agree to hear the case, there are some moving parts. If the Fifth Circuit agrees with the district court and strikes the rule, the Biden administration may not even want to take it to the High Court for review for fear of adverse precedent. On the other hand, if the Fifth Circuit rules for the plaintiffs, they’ve got a strong chance of being heard. Remember, it takes five votes to grant an emergency application (like the stay here), but it only takes four votes to agree to take up a case.”

To that end, the Supreme Court’s initial order noted that it would expire once the Court decides what to do with the case after it has made its way through the entire Fifth Circuit appeals process.

“Should certiorari be denied, this stay shall terminate automatically,” the Court wrote in its initial order. “In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”

Terrence Clark of the DOJ’s Office of Public Affairs declined to comment on the new order. The Department told The Reload in August it applauded the Court’s stay.

“The department is gratified by the Supreme Court’s order allowing this important rule to remain in effect pending appeal,” a DOJ spokesperson said at the time. “At its core, the frame-and-receiver rule is about public safety – helping law enforcement solve crimes and reducing the number of untraceable ghost guns flooding our communities.”

The Firearms Policy Coalition, one of the plaintiffs in the case, did not respond to a request for comment on the new SCOTUS order. However, in August, the group said it was “deeply disappointed” by the initial stay but remained confident it would prevail in the end.

“Regardless of today’s decision, we’re still confident that we will yet again defeat ATF and its unlawful rule at the Fifth Circuit when that Court has the opportunity to review the full merits of our case,” Cody J. Wisniewski, the group’s counsel in the case, said in a statement.

A three-judge panel of the Fifth Circuit held oral arguments on the case’s merits on September 7th, but it hasn’t yet released a decision.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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