U.S. Supreme Court

After US argues 5th Circuit 'countermanded' SCOTUS, Alito allows 'ghost gun' regulations, for now

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Ghost gun kits provide parts to make homemade untraceable guns without serial numbers. Image from Shutterstock.

U.S. Supreme Court Justice Samuel Alito has temporarily allowed the Biden administration to enforce "ghost gun" regulations after the federal government that argued the lower courts had “effectively countermanded” a prior determination by the Supreme Court.

Alito allowed enforcement of the regulations in an Oct. 6 order. His administrative stay lasts until Oct. 16.

Ghost gun kits provide parts to make homemade untraceable guns without serial numbers. The regulations at issue require makers and sellers of the kits and gun parts to add serial numbers to the products, keep transfer records and conduct background checks of buyers.

The Supreme Court had revived the regulations in August, when it stayed pending appeal a decision to vacate the regulations by U.S. District Judge Reed O’Connor of the Northern District of Texas.

Two manufacturers then went back to the district court and sought to enjoin the regulations pending appeal. O’Connor granted the injunction in September. The next month, the 5th U.S. Circuit Court of Appeals at New Orleans upheld the injunction but narrowed it so that it applies only to the two plaintiffs in the case.

In her application to vacate the injunction, U.S. Solicitor General Elizabeth Prelogar said the Supreme Court made “an authoritative determination” in August that allowed the regulations to remain in effect.

Once the Supreme Court acted, Prelogar said, “lower courts have no power to revisit the matter (at least absent a significant change in circumstances). Yet the district court and the 5th Circuit openly flouted that principle here.

“Immediately after this court issued its stay, those courts considered the same arguments based on the same record and effectively countermanded this court’s order based on their own view of the merits and the equities. … The lower courts’ approach would subvert this court’s authority and needlessly multiply emergency litigation.”

The plaintiffs are Blackhawk Manufacturing Group Inc., doing business as 80 Percent Arms, and Defense Distributed.

The case is Garland v. Defense Distributed.

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