Biden administration urges Supreme Court to revive ghost gun rule

The Biden administration implored the Supreme Court to block a ruling invalidating federal ghost gun regulations nationwide in an emergency request Thursday.

Biden last year announced the crackdown on ghost guns, referring to firearms that are sold as do-it-yourself kits and are generally hard to trace.

But the new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule has been subject to multiple legal challenges. Late last month, a Republican-appointed federal judge in Texas ruled the regulation exceeded the ATF’s authority, vacating it nationwide.

The 5^th U.S. Circuit Court of Appeals has since narrowed the ruling to invalidate only portions of the rule, but the Justice Department on Thursday urged the Supreme Court to put on hold the entirety of the ruling as the case proceeds.

Conservative Justice Samuel Alito, who handles emergency requests arising out of the 5^th Circuit, on Friday issued a one-week pause to provide gun advocates time to respond to the administration’s request. The order does not signal how the high court will ultimately rule.

“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,” the Justice Department wrote in its request.

“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 administration said the number of ghost guns submitted to the ATF for tracing has jumped from roughly 1,600 in 2017 to more than 19,000 in 2021. They also took aim at the scope of the lower court’s ruling, saying it was improper to block the provisions nationwide.

Two firearm owners, two advocacy organizations and five entities that manufacture or distribute guns are challenging the rule, one of multiple lawsuits over ghost guns making their way through the courts. Alito’s order gave the plaintiffs until Wednesday to respond to the administration’s request.

“We’re elated that the Fifth Circuit has seen through ATF’s unpersuasive arguments and has determined that ATF failed to show it is likely to win on appeal,” said Cody J. Wisniewski, an attorney at Firearms Policy Coalition, one of the groups challenging the rule, in a statement earlier this month.

“ATF lost at the district court and has now lost its first bite at the Fifth Circuit; we look forward to continuing to win against ATF’s unlawful and unconstitutional gun control regime,” he added.

At issue before the Supreme Court are two provisions: The first clarifies that the federal definition of a “firearm” includes certain parts kits, and the second defines “frame or receiver” to include disassembled parts that can be readily converted into a functional gun.

The rule expands federal requirements on serial numbers, record-keeping, background checks and more to the new covered parts. But the federal judge in Texas ruled the ATF’s expanded definitions exceeded the scope of federal gun laws.

“Every speaker of English would recognize that a tax on sales of ‘bookshelves’ applies to IKEA when it sells boxes of parts and the tools and instructions for assembling them into bookshelves,” the Justice Department wrote. “The court’s insistence on treating guns differently contradicts ordinary usage and makes a mockery of Congress’s careful regulatory scheme.”

The administration asked the Supreme Court to block the district court’s ruling on an emergency basis, or alternatively take up the case on the merits and schedule arguments for this fall. 

The latter option would allow the lawsuit to skip over the 5th U.S. Circuit Court of Appeals, which has already scheduled oral arguments for Sept. 7 in the case.