The Supreme Court agreed on April 22 to consider the Biden administration’s rule regulating so-called ghost guns that can be assembled at home.
Oral arguments in the high-profile case are likely to take place in the fall.
In October 2023, the Supreme Court reinstated the rule, which lower courts had enjoined.
“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 persuade the U.S. Congress to act.
President Joe Biden has claimed that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”
The government’s “frame or receiver” rule dates 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 guns subject to existing laws, the government argues.
The Supreme Court granted the petition for certiorari, or review, in Garland v. Vanderstok in an unsigned order. No justices dissented.
The Firearms Policy Coalition (FPC) and the FPC Action Foundation brought the lawsuit challenging the “frame or receiver” rule that is being implemented by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
“FPC and our members look forward to the end of President Biden’s unconstitutional and abusive rule. We are delighted that the Supreme Court will hear our case and decide this important issue once and for all,” FPC founder and President Brandon Combs said in a statement.
A lower court decision in the case blocking the rule “was correct and now that victory can be applied to the entire country,” he said.
“This is an important day for the entire liberty movement. By agreeing to hear our case, the Supreme Court will have the opportunity to put ATF firmly in its place and stop the agency from unconstitutionally expanding its gun control agenda,” said FPC Action Foundation President Cody J. Wisniewski, who acts as counsel for the plaintiffs in the case.
“We look forward to addressing this unlawful rule in the court’s next term.”
A prominent gun control group also said it was looking forward to the Supreme Court’s oral argument in the case.
Kris Brown, president of the Brady Campaign, said ghost guns circumvent background checks.
“These weapons are unserialized—and therefore untraceable—which essentially allows anyone to become an at-home gun manufacturer,” Ms. Brown said in a statement.
“Ghost gun kits and parts have long been intentionally marketed as unregulated and untraceable to appeal to those who want to avoid background checks and/or cannot legally possess firearms, including minors, domestic abusers, and gun traffickers.”
On Oct. 16, 2023, the Supreme Court issued an injunction in Garland v. Blackhawk Manufacturing Group Inc. allowing the Biden administration to enforce the rule regulating guns.
Before that, Justice Samuel Alito had administratively stayed a Sept. 14, 2023, order of U.S. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas that blocked the rule. On July 5, Judge O’Connor entered an injunction after finding that the regulation violated existing law.
The judge found that the ATF, which is part of the 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 at that time.
On July 24, 2023, the U.S. Court of Appeals for the Fifth 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 issue came before the Supreme Court on Aug. 8, 2023, when a 5–4 split on the nation’s highest court allowed the government’s rule on ghost guns to remain in place while an appeal of the injunction was pending in the Fifth Circuit.
Conservative Justices Clarence Thomas, Alito, Neil Gorsuch, and Brett Kavanaugh dissented from the decision.
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 effect for the time being.
Then on Sept. 14, 2023, Judge O’Connor issued an order narrowing his injunction to cover 80 Percent Arms and Defense Distributed, two companies involved in the litigation, along with their customers.
The Justice Department told the Fifth Circuit that the district judge was ignoring the Supreme Court’s order.
On Oct. 2, 2023, the Fifth Circuit issued a ruling indicating it disagreed with the DOJ’s contention but also found that the injunction “sweeps too broadly.”
“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,” it said.
Nevertheless, the court found that “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.”
Although it vacated the injunction as it applied to gun kit customers, the court said it did so based on the Biden administration’s assurances that it “will not enforce the Final Rule against customers who purchase regulated ‘frames or receivers’ and who are otherwise lawfully entitled to purchase firearms.”
The circuit court also suggested Judge O’Connor could revisit the matter and broaden his injunction should the administration break its promise not to enforce the rule against customers.
“Of course, if circumstances change, the district court is free to narrowly tailor injunctive relief to meet the changed circumstances,” the Fifth Circuit stated.
“But as things stand today, the Government is correct that the injunction cannot extend to non-party customers.”
The circuit court added that the plaintiffs who brought the action against the rule are “likely to succeed on the merits because the Final Rule is contrary to law.”
The Supreme Court did not explain its April 22 decision. At least four of the nine justices must vote to grant a petition for it to move forward to the oral argument stage.
