Monday, December 4, 2023 | Back issues
Courthouse News Service Courthouse News Service

Supreme Court says ghost gun rules can stay, for now

The high court will allow the Biden administration to regulate ghost guns while appealing a lower court ruling that would have paused its efforts nationwide.

WASHINGTON (CN) — A divided Supreme Court agreed on Tuesday to allow the Biden administration to continue enforcing its regulations on ghost guns while an appeal proceeds in the lower courts. 

The apparent 5-4 ruling from the high court’s shadow docket pauses a ruling out of Texas that would have thrown out regulations on the weapons nationwide. Now the government will be able to enforce the rules while an appeal proceeds in the Fifth Circuit. 

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh noted their dissents to the ruling. The majority —Chief Justice John Roberts, Justice Amy Coney Barrett and the three liberal justices — provided no explanation for its decision.

Alito granted a temporary stay on the ruling last month to allow the high court time to consider the government’s application. 

Ghost guns present a unique problem for law enforcement because they do not have serial numbers and are available to buy online by anyone with a credit card. The weapons come in pieces — often referred to as part kits — and can be assembled at home in as little as 20 minutes. 

The government’s new rules for ghost guns are part of an effort to curb the use of untraceable firearms. Law enforcement has seen a proliferation of ghost guns in recent years, with 1,600 recovered in 2017 and 19,000 in 2021. 

The Bureau of Alcohol, Tobacco, Firearms and Explosives recently updated its definition of firearms to include ghost guns in an attempt to better regulate the weapons. The new rules classify part kits as firearms, forcing companies to obtain a federal firearm license to sell them and put serial numbers on the kits. 

Challenges to the new regulations claim ATF’s expanded definition of firearms goes beyond any reasonable understanding of the term and exceeds the agency’s authority. Gun owners who brought a challenge to the government’s rule say the idea that ghost guns are fueling an increase in crime is unfounded. 

“The government has failed to demonstrate that emergency relief is needed, particularly when that relief seeks to keep in place a regulatory regime that exceeds the bounds of congressional authorization and seeks to make it harder for the law-abiding citizens of this nation to make their own firearms, a practice that has persisted ‘since the earliest colonial days,’” David Thompson, an attorney with Cooper & Kirk representing the gun owners, wrote in a brief before the court. 

A Texas federal judge sided with the gun owners, gun advocacy groups and manufacturers of the weapons also involved in the suit. The lower court found that ATF went beyond its jurisdiction with the new rule and vacated the regulations nationwide. 

The Fifth Circuit granted a partial stay, but the government turned to the Supreme Court with an emergency request aimed at allowing enforcement of key parts of the regulations. 

“The district court’s universal vacatur is irreparably harming the public and the government by reopening the floodgates to the tide of untraceable ghost guns flowing into our nation’s communities,” wote U.S. Solicitor General Elizabeth Prelogar in the emergency application. “Once those guns are sold, the damage is done: Some will already be in the hands of criminals and other prohibited persons — and when they are inevitably used in crimes, they are untraceable.” 

The Tuesday order will remain until the case makes its way back to the high court’s traditional docket. Before either party brings the justices a writ of certiorari, however, the Fifth Circuit will get to weigh in. If the Supreme Court decides to review the case, rules for ghost guns will remain in place until the justices issue an opinion after a full briefing. 

Follow @KelseyReichmann
Categories / Appeals, Government

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.