Biden asks for and receives temporary reinstatement of challenged ATF rule from Supreme Court

July 29, 2023
Ben Marquis

President Joe Biden's administration sought emergency relief this week from the U.S. Supreme Court to reinstate a restrictive new rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives that a district court vacated in its entirety as an unconstitutional violation of the Second Amendment.

Biden and the ATF got what they wanted, at least for a few days, as Justice Samuel Alito imposed a brief administrative stay on the lower court's ruling until August 4, and set a date of August 2 for the challengers of the rule to file a response to the government's request, CBS News reported.

At issue here is the ATF's new "frame and receiver" rule, finalized in 2022, that unilaterally broadened the definition of "firearms" under the Gun Control Act of 1968 to include so-called "ghost guns" without serial numbers that are often built at home from parts kits and/or unfinished frames and receivers, with those kits and unfinished parts now classified and regulated as though they were actual operable firearms.

Biden admin seeks revival of vacated ATF rule

The Washington Times reported that the Biden administration filed an emergency appeal on Thursday with the Supreme Court to resurrect the ATF's rule that had been vacated in its entirety by a district court judge earlier in July.

According to the administration, the so-called unserialized "ghost guns" built from unfinished frames and receivers and parts kits have contributed to a nationwide "explosion of crimes," including a supposed 1,000 percent increase in the use of such weapons in crimes over the past several years.

"Some manufacturers of those kits and parts assert that they are not ‘firearms’ regulated by federal law, and thus can be sold without serial numbers, transfer records or background checks," Solicitor General Elizabeth Prelogar wrote in the brief. "Those features of ghost guns make them uniquely attractive to criminals and others who are legally prohibited from buying firearms."

"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," she added at another point, according to CBS News. "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."

Alito issues temporary stay to allow time for argument briefs

In a one-page order issued Friday, Justice Alito wrote in response to the application for relief, "IT IS ORDERED that the June 30, 2023 order and July 5, 2023, final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT)."

That order from Alito, though significant, doesn't actually change anything at the moment, as the district court's ruling had already been administratively stayed for 10 days by a Fifth Circuit Court of Appeals panel just last week.

The panel had largely agreed with the district court's ruling that the ATF had exceeded its statutory authority, at least as it pertains to two specific provisions of the ATF's rule that had been challenged, and ordered the unchallenged remainder of the rule revived while it imposed the temporary stay to allow time for appeal and also set an expedited hearing in September to consider the broader merits of the dispute.

Fifth Circuit panel agreed with district court that ATF rule was likely unlawful

The Firearms Policy Coalition, a pro-2A organization that challenged the ATF rule, celebrated the Fifth Circuit panel's ruling last week that upheld the most important part of the district court's ruling on their lawsuit.

"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," Cody J. Wisniewski, FPC’s senior counsel in this case, said in a statement. "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."

In the Fifth Circuit's ruling, the judges wrote, "Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule," and added, "'[V]acatur ... reestablish[es] the status quo ante,' … which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022."

To be sure, anything can happen at the Supreme Court if they decide to take up this particular case, but the most likely and preferable outcome would be for Justice Alito and/or the court to reject the government's appeal and allow the prior pre-rule status quo to be reinstated while the case continues to proceed at the circuit court level.

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