On Friday, Federal District Court Judge Reed O’Connor reissued preliminary injunctions against the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF) from enforcing the Final Rule (FINAL RULE 2021R-05F) on frames and receivers against two companies.
The two companies protected against the ATF’s rule are Defense Distributed, makers of the Ghost Gunner, and Blackhawk Manufacturing Group, Inc., d/b/a 80 Percent Arms. The Texas-based case is Vanderstok v. Garland and has been at the center of the fight over incomplete frames and receivers for a little over a year.
In 2021, President Joe Biden tasked the ATF to develop rules to tackle what he called “ghost guns.”
To him and others who share his views, unserialized frames are a tool of criminals. In the gun world, privately manufactured firearms (PMF) are a part of our history and tradition. Regardless, the ATF would follow the President’s orders and develop a rule against frames and jigs being sold together.
Numerous parties launched lawsuits against the ATF rule, which many believed exceeded the ATF’s authority. In August of 2022, Jennifer VanDerStok, Michael Andren, Tactical Machining, LLC, and the Firearms Policy Coalition (FPC) would sue United States Attorney General Merrick Garland and the Justice Department (DOJ) in Texas.
While the lawsuits were happening, the anti-gun groups were up in arms. The ATF’s rule didn’t go far enough for these anti-gun organizations. These groups would demand the ATF close the “ghost gun loophole” and ban unfinished frames and receivers. The ATF acquiesced to these groups’ demands and expanded its rule through a public letter issued on December 27, 2022. The ATF would now consider any unfinished frames to be firearms from that point onward.
The anti-gun groups would experience a short-lived celebration. Judge O’Connor in the Lone Star State was going to short-circuit the rule.
The plaintiffs in VanDerStok would win a preliminary injunction. This injunction bars the ATF from taking any enforcement action against the named plaintiffs. The Judge found that they were likely to succeed on the merits of the case.
Many other companies started intervening in the case. After each intervener, another company was covered under the injunction, including the biggest maker of kits, Polymer80. Eventually, JSD Supply would file a motion to intervene. Instead of just expanding the injunction to the Pennsylvania-based company, the Judge vacated the entire rule.
The Justice Department would immediately appeal to the Fifth Circuit Court of Appeals. A panel of three judges would hear the arguments. Ultimately, the judges ruled that most of the rule would remain vacated. The DOJ could ask for an en banc hearing where the whole Fifth Circuit bench would decide on the case, but most legal scholars thought that would be a losing road after the recent ruling in Cargill on bump stocks.
The DOJ must have come to the same conclusion as the scholars. The department filed a writ of certiorari with the Supreme Court of The United States (SCOTUS).
A writ of certiorari, better known as a writ of cert, is a petition to the high court to hear the case. The DOJ also wanted to stay the court’s decision to vacate the rule until SCOTUS decided whether to grant cert. The DOJ would get that stay.
This series of events led Defense Distributed and 80 Percent Arms to seek a new emergency preliminary injunction against the Final Rule. Once again, Judge O’Connor would award the companies protection against ATF enforcement actions. Judge O’Connor considered the merits and found the plaintiffs were still likely to succeed and would suffer irreparable harm from the rule. The Judge wrote:
“For the foregoing reasons, the Court GRANTS the Emergency Motions for Injunction Pending Appeal. Accordingly, the Court ORDERS that the Government Defendants—the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives—and each of their respective officers, agents, servants, and employees are ENJOINED from implementing and enforcing against Intervenor-Plaintiffs.”
The Judge believes that the law violates the Administrative Procedures Act (APA) and exceeds the authority of the ATF. The government will be sure to appeal. If past decisions are any indication, the only hope that the Biden Administration has to keep the rule in place lies with the Supreme Court.
About John Crump
John is a NRA instructor and a constitutional activist; he has written about firearms and interviewed people of all walks of life. Mr. Crump lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.