October 23, 2023
Spurred by an earlier decision by Justice Samuel Alito on a lower court ruling, the U.S. Supreme Court last Monday sided with President Joe Biden’s Justice Department to allow enforcement of last year’s ATF rule outlawing 80-percent receivers.
Commonly called Biden’s “Ghost Gun” rule, the wide-ranging law addresses much more than just firearms without a serial number. While not actually putting a ban on making or possessing unserialized, personally made firearms, it does redefine important legal terms dealing with guns, including “firearm,” “receiver” and “frame,” making the longstanding American tradition of building personal firearms pretty much a thing of the past.
Lawsuits challenging the new rule were filed the day the rule became final. On June 30, U.S. District Judge Reed O’Connor, a George W. Bush appointee, vacated the rule in the case Garland v. VanDerStok, noting in his lengthy ruling that the federal government simply does not have regulatory power over firearms parts, regardless of the Justice Department’s apparent belief that it does possess such authority. At the time, Judge O’Connor chided the Justice Department for arguing that since they had long been regulating some of the items in question, the rule should stand.
“If these administrative records show, as Defendants contend, that ATF has previously regulated components that are not yet frames or receivers but could readily be converted into such items, then the historical practice does nothing more than confirm that the agency has, perhaps in multiple specific instances over several decades, exceeded the lawful bounds of its statutory jurisdiction,” the ruling stated. “That the agency may have historically acted [beyond its legal authority] does not convince the Court it should be permitted to continue the practice.”
However, on Aug. 8, the Supreme Court surprised many by announcing a 5-4 vote allowing enforcement of the ruling to continue. Two of the so-called “conservative” members of the court—Chief Justice John Roberts and Justice Amy Comey Barrett—voted to allow the rule to remain in force, as did liberal Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.
Earlier this month, Justice Samuel Alito, who handles emergency appeals from the 5th Circuit, issued a temporary stay of O’Connor’s ruling, as the earlier action allowing enforcement of the law was about to time out. Alito’s emergency ruling allowed for continued enforcement for two more weeks—the very day the Supreme Court announced its latest action on the matter.
That latest action came in a brief, unsigned order from the court that didn’t reveal what the vote on the matter had been or who voted for or against allowing continued enforcement of the final rule. But such a ruling is concerning for those on the pro-gun side of the Second Amendment debate since it shows that some “conservative” members of the court are willing to vote in favor of firearms laws that are almost certainly unconstitutional under the very same court’s Bruen ruling from last year.
Consider that the second portion of the new Bruen standard asks whether there exists a “historical precedent from before, during and even after the founding [that] evidences a comparable tradition of regulation?” Of course, the answer to that question is no, as crafting firearms for personal use is much older than the Second Amendment itself.
This latest Supreme Court action begs the question, “Why isn’t the Supreme Court saving the Second Amendment as we expected?” In fact, it seems that some of the justices appointed by former President Donald Trump are somewhat soft on the Second Amendment.
Justice Brett Kavanaugh prefers to rule on precedent and not the Founder’s intent, and Kavanaugh and Justice Neil Gorsuch seem fine with restrictions and bans in the 1934 National Firearms Act and 1968 Gun Control Act, which includes the machinegun ban in the 1986 Firearms Owners Protection Act.
Additionally, Kavanaugh wasn’t a big fan of Justice Clarence Thomas’s very pro-2A opinion in last year’s Bruen decision. While he formally signed on to the opinion, his concurring opinion was anything but encouraging.
And, as mentioned earlier, another Trump appointee, Amy Coney Barrett, sided with gun-banners on the “ghost gun” ban a few months back.
While the Bruen decision was a very important one, many on the 2A side of the argument are right to worry about future Supreme Court decisions given the hesitancy of Trump-appointed justices to fully endorse Americans’ “right to keep and bear arms.”
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.