The front steps of the Supreme Court
The front steps of the Supreme Court / Stephen Gutowski

Supreme Court Allows ATF to Enforce ‘Ghost Gun’ Ban During Appeal

The ATF can continue to enforce its rule against the sale of unserialized gun parts thanks to action from the Supreme Court.

On Tuesday, the Court granted an emergency stay to the Department of Justice (DOJ) that keeps the ATF’s rule in place for now. The Court said the stay would remain in effect until the DOJ’s appeal of a lower court injunction against the ATF rule has played out.

“Application (23A82) for stay presented to Justice Alito and by him referred to the Court is granted,” the Court said in a note entered into the docket for Vanderstok v Garland. “The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

The Supreme Court order comes just about two weeks after a Fifth Circuit panel denied a stay to the DOJ. That panel argued there was no need for a stay because the preliminary injunction issued against the ATF’s rule by U.S. District Judge Reed O’Connor did not harm the government and merely reverted the law back to what it had been for decades.

“Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule,” the panel wrote in a per curiam opinion. “This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”

SCOTUS disagreed. Although the High Court didn’t explain its reasoning in issuing the stay, it effectively reversed the Fifth Circuit panel’s denial and set the rule back into place. However, granting stays pending appeal is a fairly common practice for federal courts across the spectrum and doesn’t necessarily reflect how SCOTUS might come down on the merits of the ATF rule’s constitutionality–if it takes up the case at all.

The Court further clarified that the rule only applies until SCOTUS itself ultimately decides what to do with the case.

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

Gabriel Malor, a legal commentator and appellate litigator who practices in federal court, said the decision reinforces the standard process for federal court cases. He argued it’s a bad idea to assume the justices would vote the same way on the case’s merits, or even whether to review it themselves, as they did on the stay.

“The order is consistent with prior practice. It should not be taken as an indication of where the justices stand on the merits,” Malor told The Reload. “The case now sits at the Fifth Circuit, but the rule will be stayed until further SCOTUS order or until SCOTUS declines to take up the case after the Fifth is done with it. So, ATF’s rule will remain in effect while the appeals play out.”

The DOJ told The Reload it was happy with the stay ruling.

“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 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, a plaintiff in the case, said it is “deeply disappointed that the Court pressed pause on our defeat of ATF’s rule.” However, the gun-rights group insisted it is still confident it will prevail on the merits 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.

DOJ did not respond to a request for comment.

Malor said it remains unclear how the case might ultimately proceed from here. He argued its not a given the Supreme Court would intervene again after issuing the stay.

“As far as whether the Supreme Court will eventually agree to hear the case, there are some moving parts,” Malor said. “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.”

The case stems from a rule implemented by the ATF at the request of President Joe Biden back in August 2022. It grants the ATF the authority to regulate unfinished and unserialized gun parts as though they were functioning firearms. The Biden Administration has argued the parts, often sold in kits, and the homemade firearms they produce are favorites of criminals because they are more difficult to trace than the completed and serialized guns sold on the commercial market. Gun-rights advocates have pushed back by arguing Americans have always been able to manufacture their own firearms for personal defense, and the ATF’s rule infringes on that right while simultaneously extending the agency’s power beyond the limits placed on it by federal law.

In July, Judge O’Connor, a George W. Bush appointee, ruled against the ATF’s rule. He found the agency exceeded its authority when it attempted to redefine what constitutes a regulatable firearm by including unfinished parts.

“[T]he definition of ‘firearm’ in the Gun Control Act does not cover all firearm parts,” O’Connor wrote in his opinion. “It covers specifically ‘the frame or receiver of any such weapon’ that Congress defined as a firearm. And that which may become or may be converted to a functional receiver is not itself a receiver. Congress could have included firearm parts that ‘may readily be converted’ to frames or receivers, as it did with ‘weapons’ that ‘may readily be converted’ to fire a projectile. But it omitted that language when talking about frames and receivers.”

Now, the Fifth Circuit panel will take up the DOJ’s appeal of that decision. But it will do so with the ATF being able to enforce its rule during the proceedings because of the Supreme Court’s decision.

According to the note entered into the docket, that decision was a close call. Four of the nine justices would not have granted the DOJ’s request.

“Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay,” the order said.

That means conservatives Chief Justice John Roberts and Justice Amy Coney Barrett joined liberal Justices Sonya Sotomayor, Elana Kagan, and Ketanji Brown Jackson in granting the stay.

The Fifth Circuit panel is set to begin hearing arguments on the merits of the “ghost gun” case in September.

UPDATE 8-8-2023 4:09 PM EASTERN: This piece has been updated with further details about the stay and comment from Gabriel Malor and the DOJ.

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