The Supreme Court reiterated on Monday what it had said just two months ago: that the Biden administration may continue to regulate “ghost guns” — kits that can be bought online and assembled into untraceable homemade firearms — while appeals move forward.
The court’s brief order gave no reasons, which is typical when the justices act on emergency applications. There were no noted dissents.
After the Supreme Court’s initial ruling, issued Aug. 8, a federal judge in Texas and the U.S. Court of Appeals for the Fifth Circuit nonetheless allowed two manufacturers to continue to sell the banned kits. The courts reasoned that the justices had left open the possibility of tailored relief for individual businesses.
“We are unpersuaded by the government’s insistence that the district court flouted the Supreme Court’s Aug. 8 order,” a three-judge panel of the Fifth Circuit wrote this month in an unsigned opinion refusing to pause a trial judge’s ruling in favor of the manufacturers.
In an emergency application asking the Supreme Court to intervene, Solicitor General Elizabeth B. Prelogar, using unusually sharp language, wrote that the lower courts had indeed flouted the justices’ authority and “effectively countermanded this court’s authoritative determination.” She added that “the court should not tolerate that affront.”
She went on: “The lower courts openly relied on arguments that this court had necessarily rejected.”
The lower court rulings, if allowed to stand, would have sweeping consequences, Ms. Prelogar wrote. Under them, she wrote, “anyone seeking to buy a gun without a background check — including felons, minors and other prohibited persons — can readily procure and complete an untraceable firearm from respondents’ websites.”
The regulation was issued last year by the Bureau of Alcohol, Tobacco, Firearms and Explosives. It broadened the bureau’s interpretation of the definition of “firearm” in the Gun Control Act of 1968.
The regulation did not ban the sale or possession of kits and components that can be assembled to make guns, but it did require manufacturers and sellers to obtain licenses, mark their products with serial numbers and conduct background checks.
Gun owners, advocacy groups and companies that make or distribute the kits and components sued to challenge the regulations, saying that they were not authorized by the 1968 law.
In July, Judge Reed O’Connor, of the Federal District Court for the Northern District of Texas, sided with the challengers and struck down the regulation. “A weapon parts kit is not a firearm,” he wrote, adding “that which may become or may be converted to a functional receiver is not itself a receiver.”
He added: “Even if it is true that such an interpretation creates loopholes that as a policy matter should be avoided, it is not the role of the judiciary to correct them. That is up to Congress.”
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to pause key aspects of Judge O’Connor’s ruling.
But the Supreme Court granted a stay in August by a 5-to-4 vote, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett joining the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to form a majority.
