The Fifth Circuit Court of Appeals has stayed Polymer80’s injunction issued against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) frames and receiver rule (ATF final rule 2021R-05F) in Polymer80 v. Garland until the Supreme Court of The United States (SCOTUS) can decide whether to grant a writ of certiorari in VanDerStok v. Garland.
Polymer80 sued the ATF in a Texas federal court over the ATF rule against what the Biden administration calls “ghost guns” and the ATF refers to as privately manufactured firearms (PMF). The company is the country’s biggest seller of unserialized 80% frames and accounts for the vast majority of the market. After the injunction was issued, it returned to selling complete kits, including the frame, jigs, and drill bits.
The Fifth Circuit’s stay on the injunction was expected after SCOTUS stepped in and stayed injunctions for other companies, such as 80 Percent Arms and Defense Distributed in VanDerStok v. Garland. The stay allowed the ATF to enact the frames rule. The stay will last until a writ of cert is denied, or SCOTUS issues a judgment.
“IT IS ORDERED that Appellants’ opposed motion to stay the injunction pending appeal is GRANTED. In accordance with the stay granted by the Supreme Court in Garland v. VanDerStok, if a petition for a writ of certiorari is not timely sought in VanDerStok, this stay shall terminate automatically as of the date on which the petition was due; and if a petition for a writ of certiorari is timely sought in VanDerStok, this stay shall remain in effect until either (a) the date on which the Supreme Court denies certiorari, at which time the Supreme Court’s stay will terminate automatically, or (b) if the Supreme Court grants certiorari, the date on which the Supreme Court issues its judgment,” the order reads.
In the VanDerStok case, Justice Amy Coney Barrett and Chief Justice John Roberts joined the progressive members of the Supreme Court in issuing the stay until the government files a writ of certiorari with the court. The other Republican-appointed judges would have let the injunction stand until the final decision.
If the Fifth Circuit didn’t issue a stay, the ATF would most likely have returned to SCOTUS and asked for an emergency stay. Due to the SCOTUS ruling in VanDerStok, there is a high probability that SCOTUS would have stayed the injunction. The stay does not mean Polymer80 is less likely to succeed on the merits of the case. On the contrary, the company getting an injunction could mean that the courts believe that Polymer80 will likely succeed.
The Fifth Circuit Court of Appeals is the country’s most Second Amendment-friendly federal court. The court has ruled against the government in disarming Americans (United States v. Rahimi), the bump stock ban (Cargill v. Garland), and the pistol stabilizing brace rule (Mock v. Garland). Many of these cases share similar traits, such as violating the Administrative Procedures Act (APA). The bump stock case, Cargill v. Garland, has been granted cert by SCOTUS. Oral arguments in front of SCOTUS were heard in the United States v. Rahimi.
Although a stay isn’t what gun owners want, the government is still facing an uphill battle to defend its rules.
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 X at @crumpyss, or at www.crumpy.com.