The Supreme Court voted 5–4 midday on Aug. 8 to allow the Biden administration’s rule regulating so-called ghost guns that can be assembled at home to remain in force while the case remains pending before a federal appeals court.
The government’s “frame or receiver” rule goes back to April 2022. It requires individuals who assemble homemade firearms to add serial numbers to them. The rule also mandates background checks for consumers who buy gun-assembly kits from dealers.
Pieces of guns that are shipped are nonetheless still guns subject to existing laws, the government argued in court filings.
“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,” U.S. Solicitor General Elizabeth Prelogar argued in a brief filed with the court.
Two conservatives—Chief Justice John Roberts and Justice Amy Coney Barrett—joined the court’s three liberals—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—in voting to allow the rule to remain in force for the time being.
The court left open the possibility that it could grant a petition for certiorari, or review, in the case at some point in the future. This would allow the court to schedule oral arguments in the case. At least four of the nine justices have to vote for certiorari for it to be granted.
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 the U.S. Congress to act.
The new ruling came after Justice Alito stayed a federal judge’s nationwide injunction that blocked the government’s rule on homemade firearms on July 28 and Aug. 4 to give the justices more time to consider the government’s emergency request to keep the temporary stay in place.
The case, Garland v. VanDerStok, assigned the court file number 23A82 by the Supreme Court, is still pending before the U.S. Court of Appeals for the 5th Circuit.
On July 5, U.S. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas issued the injunction after finding that the regulation violated existing law.
Judge O’Connor found that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which is part of the U.S. Department of Justice (DOJ), went beyond its statutory jurisdiction in regulating “partially manufactured firearm components, related firearm products, and other tools and materials.”
The rule “is unlawful agency action,” the judge found.
On July 24, 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 government justified the regulation on public safety grounds.
“This rule will make it harder for criminals and other prohibited persons to obtain untraceable guns,” U.S. Attorney General Merrick Garland said in April 2022 when he unveiled the rule, which became effective in August 2022.
“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 the same time, President Joe Biden said that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”
The government applauded the Supreme Court’s new order.
The DOJ “is gratified by the Supreme Court’s order allowing this important rule to remain in effect pending appeal,” a spokesperson for the department told The Epoch Times in an email.
“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 other side did not seem worried about the final outcome in the case.
“We remain confident that we ultimately will prevail on the merits of the government’s appeal,” attorney David H. Thompson of Cooper and Kirk in Washington, who represents several of the respondents, told The Epoch Times in an email.
One of the respondents, the Firearms Policy Coalition, also provided a comment.
“We’re deeply disappointed that the court pressed pause on our defeat of ATF’s rule effectively redefining ‘firearm’ and ‘frame or receiver’ under federal law,” Cody Wisniewski, the group’s general counsel, said in an emailed statement.
“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.”
Oral arguments in the case are scheduled for Sept. 7 before the 5th Circuit in New Orleans. The case is known in that forum as VanDerStok v. Garland, court file number 23-10718.
