Second Amendment advocates are urging the Supreme Court to let stand a federal judge’s ruling blocking the Biden administration’s rule regulating so-called ghost guns.
“Ghost gun” is a pejorative term used by gun control advocates to describe a homemade firearm that lacks a serial number and therefore can’t be tracked by law enforcement. Gun control groups have been trying for years to ban or regulate homemade guns but have failed to convince Congress to act.
On July 28, Supreme Court Justice Samuel Alito administratively stayed a nationwide injunction blocking the rule that was issued on July 5 by U.S. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas. The stay is due to expire at 5 p.m. on Aug. 4.
Judge O’Connor, who was appointed in 2007 by President George W. Bush, made his ruling after finding that the regulation violated existing law.
“This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968,” the judge wrote.
“Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds” that the rule “is unlawful agency action taken in excess of the ATF’s statutory jurisdiction.”
The ATF is the U.S. Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives.
On July 24, the U.S. Court of Appeals for the 5th Circuit denied the government’s request to stay the lower court’s order blocking the rule “because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay.”
Serial Numbers, Background Checks
President Joe Biden said in April 2022 that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”That month, the DOJ issued a rule requiring individuals who assemble homemade firearms to add serial numbers to them. The rule also mandated background checks for consumers who purchase the kits from dealers.
“This rule will make it harder for criminals and other prohibited persons to obtain untraceable guns,” U.S. Attorney General Merrick Garland said at the time.
“It will help to ensure that law enforcement officers can retrieve the information they need to solve crimes. And it will help reduce the number of untraceable firearms flooding our communities.”
Meanwhile, the Firearms Policy Coalition, one of the respondents in the Supreme Court proceeding, filed a brief on Aug. 2 urging the court to lift the stay blocking Judge O’Connor’s order.
The judge “correctly held” that the ATF “exceeded its authority by seeking to depart from over fifty years of regulatory practice and extend[ing] the definitions of ‘firearm’ and ‘frame or receiver’ in federal law beyond any reasonable understanding of those terms,” the brief reads.
The Gun Control Act (GCA) “reflects a fundamental policy choice by Congress to regulate the commercial market for firearms while leaving the law-abiding citizens of this Country free to exercise their right to make firearms for their own use without overbearing federal regulation.”
The statute “defines a ‘firearm’ to mean ‘any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive’ and ‘the frame or receiver of any such weapon.’”
Congress didn’t intend to interfere with private citizens’ making firearms or with the “commercial production and sale of other items that may be used by private citizens to make firearms for their own use.”
But the ATF, which “apparently believes that it has now become too easy for private citizens to make their own firearms,” has “decided to take matters into its own hands” and “expanded the regulatory definition of ‘firearm’” instead of trying to convince Congress to revise the statute, according to the brief.
Weapon Parts Kits
U.S. Solicitor General Elizabeth Prelogar wrote, “Ghost guns can be made from kits and parts that are available online to anyone with a credit card and that allow anyone with basic tools and rudimentary skills (or access to Internet video tutorials) to assemble a fully functional firearm in as little as twenty minutes.”“Some manufacturers of those kits and parts assert that they are not ‘firearms’ regulated by federal law, and thus can be sold without serial numbers, transfer records, or background checks. Those features of ghost guns make them uniquely attractive to criminals and others who are legally prohibited from buying firearms,” Ms. Prelogar stated.
A weapon parts kit “falls squarely within the plain meaning of the statutory definition, which expressly includes items that can ‘readily be converted’ into functional firearms.”
“Every speaker of English would recognize that a tax on sales of ‘bookshelves’ applies to IKEA when it sells boxes of parts and the tools and instructions for assembling them into bookshelves. The [district] court’s insistence on treating guns differently contradicts ordinary usage and makes a mockery of Congress’s careful regulatory scheme,” she wrote.
The District of Columbia and 20 states, including California, Illinois, Michigan, New Jersey, and New York, filed a friend-of-the-court brief on July 29 in support of the Biden administration’s position.
Without federal regulation, “unserialized firearms have flooded” communities in the states filing the brief.
“Many of these weapons end up in the hands of people banned from gun ownership, directly undermining the GCA’s core provisions as well as state law,” the brief says.
