Federal ghost gun ban gets full SCOTUS consideration

WASHINGTON (CN) — The Supreme Court agreed on Monday to take up gunmakers' challenge to the Biden administration's ban on ghost guns — an issue that has made repeated appearances on the high court’s emergency docket in the past year — and settle whether the untraceable, self-assembled weapons are considered firearms.

The court ruled in an October emergency order in in VanDerStok v. Garland that the federal government could enforce its 2022 rule for the time being. None of the justices publicly dissented from the order or explained the reasoning behind the decision. 

Following the high court’s emergency order, a three-judge panel at the Fifth Circuit Court of Appeals ruled in November that the Bureau of Alcohol, Tobacco, Firearms and Explosives had “essentially rewritten” the Gun Control Act. 

By granting cert in the case, the justices will hear arguments over whether the federal agency’s rule, which expands the definition of a firearm to include ghost guns, requires part kits to contain serial numbers and gun manufactures to obtain federal firearm licenses, can stand. 

Ghost guns are sold in parts, often via the internet without a license. They don't have serial numbers and are nearly impossible for law enforcement to trace, raising alarm that virtually anyone with a credit card and the ability to follow simple assembly instructions could acquire a firearm this way. 

The government updated its definition of firearms in an attempt to crack down on their proliferation in the market. The new rule requires serial numbers on parts kits, and companies that sell them must have federal firearm licenses. 

The Biden administration argues that the high court's the Fifth Circuit’s decision contradicts the Gun Control Act’s plain text and nullified Congress’s “careful regulatory scheme.” 

“Under the Fifth Circuit’s interpretation, anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records or serial number required,” U.S. Solicitor General Elizabeth Prelogar wrote in her brief. “The result would be a flood of untraceable ghost guns into our nation’s communities, endangering the public and thwarting law-enforcement efforts to solve violent crimes.” 

Gun manufacturers, including plaintiffs Jennifer VanDerStok and Tactical Machining LLC, say the firearms bureau exceeded its authority and call the agency's new definition “fundamentally incompatible” with the term firearm.

“This expanded definition upsets the delicate balance struck by Congress between the commercial production and sale of firearms and the non-commercial making of firearms by law-abiding citizens, and the Fifth Circuit properly held it to be unlawful,” the gun manufacturers wrote in a March opposition brief. 

The Supreme Court first weighed in with an August 2023 order staying a Texas federal judge's vacatur of the rules. In response, a private defense contractor and gun manufacturer returned to the trial court, taking a slightly different tactic with the same goal: getting the lower court to block enforcement of the rule.

The companies, Defense Distributed and Blackhawk, succeeded in pausing the rules; the Fifth Circuit handed down a narrower ruling but ultimately upheld the pause. The Biden administration then appealed to the high court, and after allowing the ban's enforcement in October for the second time, the justices agreed on Monday to hear the case in full.

On Monday the justices agreed take up a second petition to determine whether a party who obtains a preliminary injunction is entitled to attorney’s fees, particularly when the case later becomes moot. Lackey v. Stinnie stems from a case where a group of Virginia residents sued in federal court to challenge a state statute that required the automatic suspension of the drivers’ licenses for those who failed to pay certain court fines and fees. 

The lower court granted a preliminary injunction, finding the plaintiffs were likely to succeed on the merits. The state did not appeal, and soon after, the Virginia General Assembly repealed the rule. 

The plaintiffs then petitioned to recoup attorney’s fees under U.S. Code § 1988, but the federal court declined, citing a Fourth Circuit decision holding that a preliminary injunction is not enough to consider the plaintiffs a “prevailing party.” The drivers appealed and an en banc Fourth Circuit reversed the order in a 7-4 ruling. 

Virginia appealed to the Supreme Court. 

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