Supreme Court Extends Order Allowing Biden Admin’s ‘Ghost Guns’ Rule

Associate Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington on Oct. 7, 2022. Olivier Douliery/AFP via Getty Images

A Supreme Court ruling temporarily upholding the Biden administration’s rule regulating so-called ghost guns that can be assembled at home will remain in effect until at least Aug. 8.

That’s because on Aug. 4, Supreme Court Justice Samuel Alito unexpectedly extended his ongoing stay of a federal judge’s ruling blocking the government’s rule on the homemade firearms. The move gives the justices more time to consider the government’s emergency request to keep the block in place.

“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. Although some states regulate homemade guns, gun control groups have been trying for years to ban or regulate homemade guns at the federal level but have failed to convince Congress to act.

Proposed 3D Printed Gun Safety Act of 2023

The court’s order comes two months after Sen. Ed Markey (D-Mass.) introduced S.1819, the 3D Printed Gun Safety Act of 2023, which if enacted would make it unlawful to distribute code over the internet that can be used to produce or complete a firearm.

“The danger of these 3D guns is ... they’re untraceable because there’s no serial number on them. And with $200, a 3D printer can be purchased that actually makes the gun,” Mr. Markey told NBC on June 7.

In April 2022, the U.S. Department of Justice (DOJ) issued a rule requiring anyone who assembles homemade firearms to add serial numbers to them. The rule also mandated background checks for consumers who purchase kits for doing so 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.”

Around that time, President Joe Biden said that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”

On July 28, Supreme Court Justice Samuel Alito administratively stayed a nationwide injunction issued on July 5 by U.S. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas that blocked the Biden administration’s rule.

The stay was to expire on Aug. 4, but on that date, Justice Alito extended the stay to 5 p.m. on Aug. 8. Justice Alito didn’t explain why he issued the extension. No justices dissented from the ruling.

‘Unlawful Agency Action’

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 DOJ’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.”

The case, Garland v. VanDerStok, assigned the court file number 23A82 by the Supreme Court, is still pending before the 5th Circuit.

‘Firearm’ Definition

Second Amendment advocates are urging the Supreme Court to let Judge O’Connor’s ruling stand.

Mr. Biden’s “administrative definition of ‘firearm’ illegally expands that term beyond its critical statutory boundaries,” the Second Amendment Foundation and the Firearms Policy Coalition said in a brief filed with the court last week.

“This sweeping new ‘firearm’ definition is an unprecedented power grab. It departs from what Congress actually enacted, deeming illegal for the first time ever vast swaths of traditional Second Amendment conduct that Congress did not and could not choose to make illegal.”

In its emergency application filed with the Supreme Court on July 27, the federal government urged the court to leave the stay in place.

U.S. Solicitor General Elizabeth Prelogar wrote that 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, also filed a friend-of-the-court brief on July 29 in support of the Biden administration’s position.