The United States Government has filed for a Writ of Certiorari with the United States Supreme Court challenging the Fifth Circuit Court of Appeals decision to uphold a District Court’s preliminary injunction enjoining the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from enforcing the final rule on frames and receivers (Final Rule 2021R-05F).
The case, VanDerStok v. Garland, was filed in Texas by Jennifer VanDerStok, Michael Andren, the Firearms Policy Coalition (FPC), and Tactical Machining L.L.C challenging the ATF’s rule that reclassified unfinished frames as firearms. After success in the case, multiple other companies in the 80% firearms space filed motions to intervene. After JSD Supply filed its motion to intervene, District Court Judge Reed O’Connor issued a nationwide injunction, knocking down the rule in its entirety.
Lawyers for the Department of Justice (DOJ) appealed the judge’s decision to the Fifth Circuit Court of Appeals, asking the court to overturn the injunction. A three-judge panel decided to let most of the injunction stand, effectively killing the rule. Instead of asking for an en banc hearing where the full Fifth Circuit would hear the case, the government requested SCOTUS to stay the decision until they could petition the high court to hear the case.
Most likely, the government chose to forgo the request for an en banc hearing because of the makeup of the Fifth Circuit. The court ruled in a 13-3 decision against the ATF’s bump stock rule in Cargill v. Garland. The plaintiffs in that case made arguments similar to those in VanDerStok, including violations of the Administrative Procedures Act (APA). Chances are small that the en banc would rule differently than in Cargill, which is currently docketed for SCOTUS to hear.
The Supreme Court, by a 5-4 margin, would grant the stay until the government could file a Writ of Certiorari with the court. The stay will remain in effect until SCOTUS decides whether to grant Cert. If the high court doesn’t take up the case, the stay will automatically be removed, meaning the rule will again be dead.
The government’s main argument for the Supreme Court to grant Cert is that it is important for public safety. This argument appears to be trying to apply “interest balancing,” but that legal test was struck down in the Bruen decision, which states that only the original text, tradition, and history of the Second Amendment can be considered when it comes to firearms. The government lawyers seem to be trying to walk back the SCOTUS opinion that Associate Justice Clarence Thomas wrote.
“Ghost guns provide a ready means for felons, minors, and others who are prohibited from buying firearms to circumvent the law—thwarting Congress’s ‘comprehensive scheme’ intended to ‘verify a would-be gun purchaser’s identity,’ ‘check on his background,’ and thereby keep guns out of the hands of criminals and others who should not have them.’” The government states. “And on the back end, the lack of records and serial numbers means that ghost guns have ‘severely undermine[d]’ law enforcement’s ability to ‘determine where, by whom, or when’ a firearm used in a crime was manufactured and ‘to whom [it was] sold or otherwise transferred.’ That, in turn, has impaired law enforcement’s ability to apprehend violent individuals who may pose an ongoing threat to public safety. By ensuring that ghost guns are regulated as what they actually are—firearms—the two challenged provisions of the Rule ‘prevent easy circumvention of the [Act’s] entire regulatory scheme’ and are thus ‘critical to public safety.’”
The Supreme Court doesn’t have a timeline for deciding whether to grant Cert, but the decision will have a lasting impact on the 80% firearms market and other ATF rules.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
Hahaha! Claiming they need records and serial numbers for tracking and solving cases, when they cannot point to a SINGLE CASE, not one, that was solved by tracing the gun’s serial #. All #s do is help create a registry and later confiscate and track, the scumbags! Besides which, public interest and balancing interests is no legal arguement when it comes to arms and the 2A. The gov always used that bs to claim posting guns prohibited signs protected people, which was in their interests, when all it did was disarm and victimize them, creating shooting galleries for evil and… Read more »
Fawk JoeBama!
Just imagine when Slo CCP Joe dies and Kamala (or Big Mike) takes over. The left will really afraid of ghosts. They’re starting to be afraid now.
Background checks and NICS were non-existent 35 years ago… we ordered guns via usps delivery by catalog, even from Sears. No problems. We must return to that freedom. The GCA and NFA and various state bans on mags and scary black rifles are unconstitutional, and without any legal power, and thus they will all be disavowed, set aside, abolished, neutered. We recognize no gun control laws, as the gov is specifically prohibited from having any legal authority over citizens’ arms.
If you CUT OFF government funds the prosecutors and judges will go home and the ATFE will disperse.
Problem solved.
HLB
It is said that when all you have is a nail everything starts to look like a hammer. Technology has made every facet of governments’ gun control regime obsolete so quickly that they’re desperately trying to pretend that something that never worked in the first place still works. You almost have to feel sorry for them but not quite. That explains their frantic attempts to ban stuff that cannot be banned (3D printers) in order to continue to control things (guns) that they never really controlled in the first place. It’s a tricky problem and we should all be thankful… Read more »
serial numbers were not required until 1968, so there goes the historic analogue. there has never been a tradition to have serial numbers on privately made firearms EVER. and the Second Amendment doesn’t say anything about serial numbers.
case dismissed with prejudice.
WHO CARES what any of those cretins and bozos at ANY point in the 100% corrupted legal system may say?? They are all down to a man or woman, incompetent, immaterial and irrelevant due to the crimes they commit on a daily basis!! WHY does anybody have to bow down to criminals of any kind, stripe or color? If anyone wants to know why American society has gone so criminal and psychotic, just look to the legal system where real justice doesn’t matter one little bit, only who has the most power and money behind them! Innocent people go to… Read more »