Biden Ghost Gun Rule Can Stay in Effect, Supreme Court Says

(Bloomberg) -- A divided US Supreme Court let President Joe Biden’s administration regulate build-at-home “ghost guns” while a legal fight goes forward, blocking a lower court ruling that said officials were overstepping their authority.

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The 5-4 order, which granted an administration request, boosts efforts to control what officials say has become a flood of untraceable weapons. It lets the Bureau of Alcohol, Tobacco, Firearms and Explosives resume enforcing a year-old rule that a federal trial judge had briefly halted.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented. As is often the case with emergency requests, neither the court as a whole nor the dissenters gave any explanation.

The ATF rule subjects gun kits to the same federal requirements as fully assembled firearms, meaning dealers must include serial numbers, conduct background checks and keep records of transactions.

“It isn’t extreme. It’s just basic common sense,” Biden said when he announced the rule at a White House event last year.

US District Judge Reed O’Connor tossed out the regulation, and a three-judge panel of the 5th US Circuit Court of Appeals had left the core of his ruling in force while it considers the administration’s appeal on an expedited basis. All four lower court judges are Republican appointees.

Alito last week temporarily blocked O’Connor’s order while the high court decided how to handle the case.

The key legal issue is whether gun kits can be classified as “firearms” under a 1968 law that imposes requirements on dealers. The administration contends that kits qualify as firearms because the law covers items that can “readily be converted” into functional weapons. The disputed weapons can be assembled by almost anyone in as little as 20 minutes, US Solicitor General Elizabeth Prelogar said in court papers.

The rule is being challenged by a collection of manufacturers, dealers, individuals and gun-rights groups. They say the administration is trying to change a 50-year-old understanding of the 1968 Gun Control Act.

That law “reflects a fundamental policy choice by Congress to regulate the commercial market for firearms while leaving the law-abiding citizens of this country free to exercise their right to make firearms for their own use without overbearing federal regulation,” one group of opponents argued.

The ATF rule had been in effect for almost a year before O’Connor, who sits in Fort Worth, Texas, issued his order last month. Other judges around the country had refused to block the rule.

Prelogar said the number of ghost guns submitted by law enforcement agencies to ATF for tracing has risen from 1,600 in 2017 to 19,000 in 2021.

She said O’Connor’s order “would let tens of thousands of untraceable ghost guns flow into our nation’s communities — with many going to felons, minors, or those intending to use them in crimes.”

The opponents accused the administration of overstating the problem, attributing the increase in trace requests to changes in law enforcement practices.

The case is Garland v. VanDerStok, 23A82.

(Updates to say in third paragraph that dissenters didn’t give any explanation. An earlier version corrected Brett Kavanaugh as a dissenter.)

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