The regulation came down from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) last year at the request of the Biden administration.
The emergency stay was issued to the Department of Justice (DOJ) and keeps the ATF rule in place.
The court wrote in the docket for Vanderstok v. Garland that the application for the stay “presented to Justice Alito and by him referred to the court is granted.” It added that the previous order and judgment “are stayed pending the disposition of the appeal of the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”
Tuesday’s action followed by just two weeks the denial of a stay to the DOJ. That panel declared that the stay was not necessary due to no harm being done to the government. The preliminary injunction, the ruling said, merely reverted the federal law to the status it held for decades prior.
The Texas-based O’Connor had struck a blow to the ATF’s attempt to regulate ghost guns when he found the agency overreached in creating the rule.
He wrote that the ATF did not have the authority to declare that unfinished gun parts may be regulated as complete guns. Under federal law, O’Connor said, these parts are not firearms.
“Because the court concludes that the government cannot regulate these items without violating federal law, the court holds that the government’s recently enacted final rule…is unlawful agency action taken in excess of the ATF’s statutory jurisdiction.”
In other words, the agency took legislative powers that are vested by the Constitution in Congress and wielded them to create new law.
The DOJ immediately sought a stay for O’Connor’s action, but two weeks ago a Fifth Circuit panel denied that action. The judges found no need to issue the stay based on no harm done to the government by O’Connor’s preliminary injunction.
“We DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”
But the Supreme Court disagreed. The unusual coalition formed when a pair of conservative justices, Chief Justice John Roberts and Justice Amy Coney Barrett, joined three others in allowing the regulations on ghost guns to take effect.
These guns are enjoyed by hobbyists who utilize kits to produce homemade weapons. The parts and finished products do not have serial numbers, which the ATF and some law enforcement agencies complained makes them untraceable.
In 2022, the ATF debuted regulations requiring that these kits have serial numbers. The agency also mandated that sellers keep transaction records and initiate background checks on buyers.
Pro-Second Amendment groups along with a company specializing in selling gun parts quickly filed suit. They argued the agency took action it had no legal authority to take when it changed the definition of a firearm.
Now, however, the Supreme Court surprisingly sided with the federal government. Justices did not explain their reasoning, which is normal for items that appear on the “shadow docket.”
Attorney and appellate litigator Gabriel Malor noted that the action by the court in rejecting the stay should not be considered an indicator of how it would rule if the case is brought before the bench. He said, “the order is consistent with prior practice.”
Meanwhile, one of the plaintiffs expressed deep disappointment with the outcome. Counsel Cody J. Wisniewski of the Firearms Policy Coalition said he remains “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.”
