Justices take up “ghost guns” case for next term


Though still far behind the number of cases granted for the next term this time last year, the court on Monday added two new cases to its docket for the 2024-2025 term. The justices agreed to weigh in on a challenge to a rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulating so-called “ghost guns” – firearms without serial numbers that virtually anyone can assemble from parts, often purchased in a kit. Garland v. VanDerStok was one of two cases granted on Monday on a list of orders from the justices’ private conference last week.

The dispute over the “ghost guns” rule is one with which the justices were already familiar. Last June, a federal district judge in Fort Worth, Texas, barred the ATF from enforcing the rule anywhere in the United States. U.S. District Judge Reed O’Connor agreed with manufacturers and sellers of ghost gun kits and parts that applying the rule to ghost guns was inconsistent with federal firearms laws. When the U.S. Court of Appeals for the 5th Circuit, which hears appeals from federal trial courts in Texas, declined to put O’Connor’s ruling on hold, the Biden administration came to the Supreme Court, asking the justices to step in.

By a vote of 5-4, the justices in early August allowed the Biden administration to temporarily reinstate the rule while the challenge to it continued in the lower courts. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all indicated that they would have denied the government’s request and allowed the rule to remain on hold.

The 5th Circuit heard oral argument in the case in early September and issued it in early November. It upheld O’Connor’s decision, concluding that the rule “flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy.”

U.S. Solicitor General Elizabeth Prelogar returned to the Supreme Court in early February, telling the justices that, under the 5th Circuit’s ruling, “anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records, or serial number required.” If it is allowed to stand, she cautioned, it would lead to a “flood of untraceable ghost guns into our Nation’s communities, endangering the public and thwarting law-enforcement efforts to solve violent crimes.”

After considering the case at two consecutive conferences, the justices agreed to take up the dispute, which will likely be argued in October. The justices heard two cases in the 2023-2024 term involving guns: United States v. Rahimi, a challenge to the constitutionality of a federal law that bars anyone who is the subject of a domestic-violence protection order from having a gun; and Garland v. Cargill, a challenge to a federal regulation that defines a “bump stock” as a machinegun.

In the second case granted on Monday, Lackey v. Stinnie, the justices agreed to decide whether a plaintiff who obtains a preliminary injunction is a “prevailing party” for purposes of receiving an award of attorney’s fees, when there is no final ruling on the merits of the plaintiff’s claim – here, because the Virginia legislature repealed the law that the plaintiffs were challenging. 

The justices will convene again for another private conference on Friday. Orders from that conference are expected on Monday, April 29, at 9:30 a.m.

This article was originally published at Howe on the Court

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