Justice Alito Reinstates Biden Admin’s ‘Ghost Gun’ Restriction in Temporary Freeze

The Biden administration’s rule on so-called ghost guns has temporarily been revived by the U.S. Supreme Court, while the fate of the rule is still pending.

A "ghost gun" is displayed before the start of an event about gun-related violence in the Rose Garden of the White House in Washington on April 11, 2022. Drew Angerer/Getty Images

U.S. Supreme Justice Samuel Alito on Friday temporarily froze a lower court order and revived the Biden administration’s restriction on so-called ghost guns.

The action by Justice Alito, who handles emergency matters arising from a group of states including Texas, effectively freezes the litigation as the court weighs a request on Thursday from the Biden administration to reinstate the rule pending an appeal before the New Orleans-based 5th U.S. Circuit Court of Appeals.

He put the case on hold for one week, until Aug. 4, and gave the rule’s challengers until Aug. 2 to respond to the administration’s request.

Justice Alito’s order also stayed the nationwide injunction against the Justice Department (DOJ) rule issued by U.S. Judge Reed O'Connor earlier this month.

Judge O'Connor of the U.S. District Court for the North District of Texas, an appointee by former President George W. Bush, said the DOJ rule was in violation of existing law.

Disputes Over ‘Ghost Guns’

“Ghost gun” is a term used by gun control advocates to describe a homemade firearm that lacks a serial number and therefore cannot be tracked by law enforcement.

Gun control groups have been trying to ban or regulate homemade guns for years but have failed to convince Congress to act.

President Joe Biden stated in April 2022 that privately made guns, which are often made with gun kits, are the “weapons of choice for many criminals.”

Mr. Biden’s DOJ issued its rule by executive order the same month, requiring individuals who assemble homemade firearms to add serial numbers to them. The rule also mandated background checks for consumers who purchase the kits from dealers.

“This rule will make it harder for criminals and other prohibited persons to obtain untraceable guns,” U.S. Attorney General Merrick Garland said at the time.

The Biden administration argued that ghost guns qualify as “firearms” under the federal Gun Control Act, and must be marked with serial numbers and made by licensed manufacturers.

Several plaintiffs, including two gun owners and two gun rights advocacy groups, challenged the rule in federal court in Texas.

Judge O'Connor blocked the rule nationwide in a July 5 ruling after finding that the administration exceeded its authority in adopting it.

The ruling practically banned the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) from implementing it.

The ATF is part of the DOJ.

“Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule, Definition of ‘Frame or Receiver’ and Identification of Firearms ... is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule,” Judge O'Connor wrote in the ruling.

On July 24, the U.S. Court of Appeals for the 5th Circuit denied the government’s request to stay the lower court’s order blocking the rule “[b]ecause the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay.”

The case is still pending before the 5th Circuit.

Landmark Gun Rights Ruling

America’s highest court in June 2022 ruled that the U.S. Constitution protects an individual’s right to carry a handgun in public for self-defense, handing a landmark victory to gun rights advocates in a nation deeply divided over how to address violence involving firearms.

The 6-3 ruling, with conservative-leaning justices in the majority and liberal-leaning justices in dissent, struck down New York state’s limits on carrying concealed handguns outside the home. The court found that the law, enacted in 1913, violated a person’s right to “keep and bear arms” under the U.S. Constitution’s Second Amendment.

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Justice Clarence Thomas wrote in the ruling.

The justices overturned a lower court ruling throwing out a challenge to the law by two gun owners and the New York affiliate of the National Rifle Association (NRA).

The ruling clarified how courts must now assess whether regulations are valid under the Second Amendment, requiring them to be comparable with restrictions traditionally adopted throughout U.S. history. New York’s concealed firearm regime failed that test, Thomas wrote.

The ruling will directly affect at least six states: New York, California, Hawaii, Maryland, Massachusetts, and New Jersey. It affects the District of Columbia as well. Previously, officials in those areas decided whether people could carry concealed handguns in public even if they pass criteria such as criminal background checks.

Connecticut, Delaware, and Rhode Island also give state officials some discretion.

The ruling allows states to prohibit guns in “sensitive places,” likely beyond the locations such as courthouses and legislative buildings that have historically met that definition. Thomas wrote that courts “can use analogies to those historical regulations” of sensitive places.

Mr. Biden condemned the decision.

“This ruling contradicts both common sense and the Constitution, and should deeply trouble us all,” he said. “In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society—not less—to protect our fellow Americans.”

Reuters and Matthew Vadum contributed to this report.