Supreme Court says Biden administration can keep ghost gun rules, for now

WASHINGTON (CN) — The Biden administration can enforce its ghost gun regulations, the Supreme Court said on Monday following an effort by firearm manufacturers to skirt a prior order. 

None of the justices publicly dissented from the order or explained the reasoning behind their decision. 

This is the second time the high court has taken emergency action on the issue. In August, the justices split 5-4 on upholding the administration’s effort to combat the weapons. This month, Justice Samuel Alito agreed to grant a temporary stay again to allow the high court to review the matter. 

Almost untraceable by law enforcement, ghost guns can be sold without a license and do not have serial numbers. Anyone with a credit card can buy the firearm, which comes in a part kit that can be easily assembled to create a fully functioning weapon. 

The Bureau of Alcohol, Tobacco, Firearms and Explosives updated its definition of firearms in an attempt to crack down on their proliferation in the market. The new rule requires part kits to contain serial numbers and companies that sell them to obtain federal firearm licenses. 

A private defense contractor and gun manufacturer returned to the trial court following the high court’s order to ask for an injunction of the government’s ghost gun rules. During the first trip to the court, the justices stayed a vacatur of the rules. The manufacturers took a slightly different tactic with the same goal at the second time, asking the lower court to block enforcement of the rule. 

Defense Distributed and Blackhawk were able to receive a pause on the government’s rules from the trial court. The Fifth Circuit handed down a narrower ruling but ultimately upheld the pause. The Biden administration then appealed to the high court. 

The Biden administration saw the lower court intervention in the case as a disregard for the justices’ authority. 

“The district court and the Fifth Circuit have effectively countermanded this court’s authoritative determination about the status quo that should prevail during appellate proceedings in this case,” U.S. Solicitor General Elizabeth Prelogar wrote. “In so doing, the lower courts openly relied on arguments that this court had necessarily rejected to grant relief that this court had withheld. The court should not tolerate that affront to basic principles of vertical stare decisis.” 

The manufacturers say the Biden administration is making up rules Congress did not enact. 

“Only what the legislators actually voted to enact counts,” Charles Flores, an attorney with Flores Law representing the manufacturers, wrote. “Yet by administrative regulation, ATF’s ‘ghost gun’ rule tries to criminalize what Congress did not actually and could not constitutionally criminalize. That is why Defense Distributed will win the case and have the Rule set aside.” 

Also taking issue with the government’s characterization of the high court’s prior order, Defense Distributed says nothing has been decided yet. 

“The court’s stay upholds nothing because the court issued no opinion upholding anything,” Flores wrote. “Without an opinion, the stay functioned as all stays do — solely in the negative — to halt the order.”

Defense Distributed cited the differing relief methods — vacatur in the first case and injunction here — as the reason it should retain the lower court ruling despite the justices' prior order. 

“Conflating the legal analysis of vacaturs and injunctions is not just wrong on first principles,” Flores wrote. “It is wrong according the solicitor general, who in many filings has admonished the very conflation ATF now embraces. The government has touted the vacatur/injunction distinction with great enthusiasm in case after case — or at least in case after case not about the Second Amendment.”   

The government and the gun manufacturers did not respond to requests for comment on the order.

Follow @KelseyReichmann

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit