September 25, 2023
3D Printed Ghost Guns
Alito Grants Temporary Stay for ATF’s “Ghost Gun” Rule

U.S.A. — On July 27, 2023, the Attorney General of the Biden Administration, Merrick B. Garland, applied for a stay to Justice Alito at the Supreme Court in the case of VanDerStok v. Garland. The request for an emergency stay had been refused by a three-judge panel of the United States Court of Appeals for the Fifth Circuit on July 24, 2023, as reported on AmmoLand.  One of the possibilities mentioned was the Biden administration would appeal directly to the Supreme Court. The possibility of a request for an en banc decision existed but was unlikely because the Fifth Circuit has been following the Supreme Court guidance in the Bruen decision for enforcing Second Amendment rights and because an en banc panel would not have been emplaced for a period of time.

The request for an emergency stay to the Supreme Court is based on the false notions the Final Rule of the ATF on receivers and frames is somehow related to public safety; that “public safety” overrides the Constitution; and that the Executive branch (the Biden Administration) must act because the Legislative branch will not do so.  From page 6:

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.

You are correct if this sounds like the familiar song and dance put forward by dictators and authoritarians worldwide.

The Final Rule put forward by the ATF reverses five decades of precedent because the Biden administration wants to do it. Here are some of the arguments put forward in the application filed.  From page 3 of the request for an emergency stay:

The Rule does not prohibit the purchase, sale, or possession of any firearm, nor does it prohibit any individual lawfully entitled to possess a firearm from making one at home. Instead, it simply requires compliance with the uncontroversial federal laws “imposing conditions and qualifications on the commercial sale of arms,” District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008).

This is false. The rule prohibits the manufacture of firearms by individuals who are unwilling to submit to the inclusion of their firearms on a federal data system, using tools and parts which have been available for decades. The Gun Control Act has always been controversial. It passed in 1968 because of the unrelenting pressure of President Johnson and the dominant media, leveraging the emotional tumult of the assassinations of Bobby Kennedy and Martin Luther King. It has remained particularly controversial and has only stayed in effect because the courts have refused to honor rights protected by the Second Amendment. With the publishing of the Supreme Court Bruen decision restoring Second Amendment protections, numerous provisions of GCA 68 are being challenged in the Courts.

The ban on possession of a firearm where the serial number has been removed is being challenged as well.

From page 6:

This Court should stay the district court’s vacatur in full. A stay would prevent further irreparable harm to the public while allowing the litigation in this case and other challenges to the Rule to proceed in the ordinary course. But given the gravity and urgency of the public safety issues at stake, if the Court is not prepared to grant a stay it may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for argument this fall.

The claim there is irreparable harm to the public is laughable. There are hundreds of millions of firearms already in circulation in the United States. Hundreds of millions of them are already “untraceable.” Once a firearm is more than a few years old, “tracing it” is an exercise in futility. Tracing firearms is virtually useless in solving violent crimes. Criminals rarely leave firearms that can be traced to them at the crime scene. All that is accomplished by tracing is to waste public resources on accumulating useless data. Even full-blown registration of firearms almost never is used to actually solve crimes. The idea of “tracing guns” as a useful crime-fighting tool is a myth. The serious danger to a viable Second Amendment is the potential of a national gun registry using the requirement for serial numbers imposed by the federal government.

From page 18:

An ordinary speaker of English would recognize that a company in the business of selling kits that can be assembled into firearms in minutes — and that are designed, marketed, and used for that express purpose — is in the business of selling firearms. A contrary conclusion blinks reality.

No. A kit is not a completed product. When the pieces of a kit must be physically altered to allow the parts to be assembled into a functional firearm, it is not a disassembled firearm. It is a kit, where the purchaser finishes the manufacturing process. Individuals in the United States, who are not manufacturing firearms for commercial sale have always been able to make their own homemade firearms using parts purchased from other parties.

From page 20:

The court appeared to accept that “disassembled” weapons are subject to the Act’s requirements, App., infra, 39a, but exempted parts kits that can be assembled into a fully functional weapon in a matter of minutes, see id. at 70a-71a, 81a-88a.

No, this is incorrect. If it takes time and effort to make parts compatible, it takes more time and effort than merely assembling parts. Functional firearms can be made from hardware supplies in “minutes”. That does not make pipes into firearms. The pipes are not firearms until the work is done to make them functional.

An unusual part of the brief is the Biden administration’s attack on “universal relief”, where a single district court judge can vacate a law for the entire nation. This tactic has been used, particularly by the Left, for decades. If the court uses this case to eliminate the ability of single district courts to vacate national laws for the entire nation, it will be a victory for limited government. The court could both uphold the ruling, which was upheld by the Fifth Circuit Court of Appeals, and still disapprove of a single district court vacating national law. From Page 29, the Biden Administration attacks “universal relief” :

Universal relief also creates other constitutional, legal, and practical problems. It “strains our separation of powers” by “allowing individual judges to act more like a legislature by decreeing the rights and duties of people nationwide.” Texas, 143 S. Ct. at 1985 (Gorsuch, J., concurring in the judgment). It circumvents the procedural rules governing joinder and class actions. See id. at 1981. It encourages forum shopping by empowering a single district judge to nullify the decisions of other courts upholding the challenged agency action.

The Biden administration made a laughable claim about reality in 1968. Serial numbers were not required on most firearms (handguns and high-powered rifles were an exception) in 1968. Millions, perhaps tens of millions, of firearms without serial numbers were grandfathered into the system in 1968. Homemade firearms without serial numbers, have been made in the United States since colonial times. From Page 39:

More fundamentally, there was no such thing as a ghost gun in 1968. As recently as 2017, they were a novelty being sold in relatively small numbers. It is only over the last five years that the manufacturing respondents and others have dramatically changed the status quo by selling tens if not hundreds of thousands of firearms outside the Act’s regulations.

This is the progressive argument: that was then, and this is now; therefore, we must ignore the rules in place and act by diktat!

Predicting what the Supreme Court will do on any issue is difficult. The Court consists of nine people who can see through obvious, inflated rhetoric.  The Supreme Court has already spanked the Biden Administration for attempting to act with dictatorial authority on student loans. The Court has ruled the EPA cannot change law for the entire country by administrative whim.  Refusing to grant the emergency stay to the Biden administration only returns firearms regulation to the status quo before the Biden administration’s gambit to expand ATF authority was attempted.

The question of whether the entire firearms regulation scheme concocted with the National Firearms Act of 1934, the Federal Firearms Act of 1938, the Gun Control Act of 1968 and the 1986 Gun Owners Protection Act are all an overreach of federal power, not allowed under the Second Amendment, is not addressed.

Update: Justice Alito grants administrative stay for a week. Responses are due on August 2, 2023.

Alito Grants Temporary Stay for ATF’s “Ghost Gun” Rule by AmmoLand Shooting Sports News on Scribd

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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